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2022/01> Innovation and IP: a step towards harmonization in determining ownership in France?

New rules now apply in France to inventions and software created by individuals who are neither private nor state sector employees.

Order n° 2021-1658 of 15 December 2021, concerning the attribution of intellectual property rights relating to assets generated by software writers and inventors, who are neither company employees nor civil servants and who have been working in a company or public institute having an R&D activity, has introduced new provisions into the French Intellectual Property Code (« CPI ») in Articles L. 113-9-1 and L. 611-7-1.

These new provisions seek to extend the existing rules concerning patentable inventions (Article L. 611-7 CPI) and software (Article L. 113-9 CPI) created by public or state sector employees to other categories of authors and inventors, in particular interns, Ph.D. students, scholarship students from overseas, and emeritus professors or directors, who have been working in a company or public institute acting as host institution and which has an R&D activity.

The new provisions thus foresee ownership of the host institution concerning inventions or software created by an inventor or author in the framework of his/her constant mission or on the basis of explicit instructions given by the host institution, as well as assignment to the host institution of certain inventions not resulting from R&D activities explicitly entrusted to the inventor.

These provisions will apply whatever the type of host institution having an R&D activity (public or private), provided that the inventor or author is bound to the host institution by an agreement and, as regards software, that the author was working under the orders of a manager and received compensation for the work carried out.

The new provisions seek to simplify the situation for institutions carrying out research and to harmonize the situation with respect to staff members falling into the general classes of company employees or civil servants.

An implementing decree is expected in order to define in more detail the nature of the financial compensation which will be due to the inventors or authors.

Articles L. 113-9-1 and L. 611-7-1 entered into force on 17 December 2021 and apply to inventions or software created starting from this date.


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