An International Guide to
Patent Case Management for Judges

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3.1.5 Properties of invention patents or utility models developed in labor relationships

Articles 88–93 of the LPI govern the ownership of invention patents or utility models developed in labor relations.

The invention and the utility model belong exclusively to the employer if they arise from an employment contract, the performance of which takes place in Brazil and that has research or inventive activity as its object, or when an invention results from the nature of the services for which the employee was hired (Article 88 of the LPI). Unless it is expressly determined otherwise in the contract, the compensation for the work referred to in this article is limited to the agreed salary (Article 88(1) of the LPI). Unless proven otherwise, an invention or utility model whose patent is applied by the employee up to one year after the termination of the employment relationship is considered to have been developed during the term of the contract (Article 88(2) of the LPI).

The employer (i.e., the patent holder) may grant to the employee (i.e., the author of an invention or improvement) a share in the economic gains resulting from the exploitation of the patent upon negotiation with the interested party or as provided for in the company’s bylaws (Article 89 of the LPI). The share referred to here is not incorporated, in any way, into the employee’s salary. Nevertheless, the invention or utility model developed by the employee belongs exclusively to the employee, provided that it is unrelated to the employment contract and does not arise from the use of the employer’s resources, means, data, materials, facilities or equipment (Article 90 of the LPI).

The ownership of an invention or utility model is shared, in equal parts, when it results from the personal contribution of the employee and from the employer’s resources, data, means, materials, facilities or equipment, except if the contract expressly determines otherwise (Article 91 of the LPI). If more than one employee is involved, their share is divided equally among all of them unless otherwise determined (Article 91(1) of the LPI).

The employer has exclusive exploitation rights, and the employee is ensured fair compensation (Article 91(2) of the LPI). In the absence of an agreement, the exploitation of the patented object must be initiated by the employer within one year of the date of its grant. Otherwise, the patent’s ownership may be transferred exclusively to the employee, except in cases where the failure to exploit is due to legitimate reasons (Article 91(3) of the LPI).

In case of assignment, any of the co-titleholders, on equal terms, may exercise the pre-emptive right (Article 91(4) of the LPI).

The above-mentioned rules apply, where appropriate, to relations between self-employed workers or trainees and the contracting companies, as well as between contractors and contracting companies (Article 92 of the LPI).