Ownership rights
(March 25, 2011)
In Japan, there is a provision that is not present in the U.S. patent law. This provision, the Article 35 of the Japanese patent law, stipulates that, in order for an employer to apply for a patent for an invention created by his or her employee within the scope of the employer’s business, the employer must pay the employee a reasonable compensation separately from his or her salary. This quite reasonable rule was created to protect the rights of Japanese employees, whose positions are extremely vulnerable. American company also need to be careful about this rule because the employee can later claim that a patent application or right is invalid using this rule.
On the other hand, if the employee individually obtains a patent for an invention which was created within the scope of the employer’s business, the employer may obtain the license-fee, non-exclusive right to use the patent. The employer can still do so even if the employee individually applies for a patent after he or she leaves the company.