The right of publication

An employee who invents something that is covered by the Act on Employee Inventions must notify the employer in writing of this as soon as possible. The notification must contain information about the invention. Once such notification has been given, the employer has a period of four months to give written notification to the employee if he wants to take over the invention or claim a right to it.

As long as the employer's deadline runs, the employee's freedom of action is limited. The employee cannot control the invention or take actions that may impair the possibility of obtaining a patent, or that enable others to utilize the invention. This means, among other things, that the employee cannot make the invention public.

Exceptions : For teachers and scientific staff at universities and colleges, the Act on Employee Inventions makes a limited exception to the prohibition on tampering with the invention; such workers may have the right to publish their invention. This is called the "right of publication".

The purpose of the rule on the right to publish is that employees should have the opportunity to choose open dissemination of their knowledge rather than commercial exploitation. If the invention is published, neither the employee nor the employer can later be granted a patent; the knowledge must then be freely usable by everyone.

Employees who have a permanent or temporary employment relationship in a full-time or part-time position at a university or college have the right to publish. Some employees have shared their position between a university/college and a research institute, healthcare organization or business. In that case, it is a condition for the publication right to apply that the research results relate to an invention that has been made in connection with the employee's position at a university or college.

A prerequisite for the right of publication is that the employee gives notice to the employer that they wish to use the right of publication at the same time as they notify the employer about the invention. At this point, however, it is not necessary that the publication has been prepared. 

Another condition is that the rights of third parties do not prevent publication. Third-party rights can, for example, be an obstacle if the invention is connected to a research project that is externally financed, or that is carried out in collaboration with the business community.

If the employee has shared a position, their obligations toward other employers may prevent publication. 

If the conditions for publication rights are met, the employer does not have the right to take over the invention. An exception applies if the inventor has not "taken steps to publish" within one year after the notification of the invention was given to the employer. In such cases, the employer can take over the invention and can then also apply for a patent.

The phrase "steps taken towards publication" includes, among other things, situations where the employee publishes the invention in such a way that a patent can no longer be granted due to the novelty requirement in Section 2 of the Patents Act. In addition, it also covers, among other things, cases where a manuscript has been sent to a journal or the organizer of a conference for assessment. It is not necessary that the manuscript has been accepted by the journal or that an oral lecture has been given within the one-year deadline.

The right of publication can be waived by a provision in the employment contract or other agreement between employee and employer.