in 2004 for the purpose of increasing the predictability of the amount of "reasonable compensation." Since then, there has been few litigations concerning Employee Invention. Nonetheless, some people have claimed that this system disturbed global business activities and industrial competitiveness. Particularly, those have claimed that under Article 35 the court would ultimately determine "reasonable compensation." In June 2013, the cabinet determined, as a part of the "Basic Policy Concerning Intellectual Property Policy" that the Employee Invention system should be reviewed to make it contribute to enhancing industrial competitiveness. Subcommittee points are identified as problems in the current system for Employee Invention (the "Current System"). a calculation method or standard for "reasonable compensation" for Employee Invention. The Law requires "due process" for adopting rules for compensation. Many employers, particularly large manufacturers, seem to have adopted internal rules for Employee Inventions and paid compensation in accordance with the rules. In the Report, it is said that it becomes more difficult for an employer to calculate "reasonable compensation" for each inventor and a litigation risk is getting higher. In a company, many inventors as well as non-inventors are involved in the process of creating a particular invention. In addition, due to the complexity of recent products, using hundreds or thousands of patents. As a result, it becomes more difficult and costly for an employer to calculate reasonable compensation for an employee who has made one invention. Moreover, the inventor employee might not accept the compensation which the employer considers reasonable. the employee and the employer for transfer of the Right for future Employee Invention, the employee may transfer Employee Invention to a third party. The employer cannot obtain the Right once the third party files an application for a patent for the relevant Employee Invention. There is no way for the employer to have the third party return the patent or patent application. is made in accordance with a joint research and development project of two parties, the inventor employees of the respective parties who actually make the invention will have the Right jointly. Thus, in order for one party to have its inventor employee transfer the Right, the employee must obtain a consent from the inventor employee of the other party, i.e., the co-owner of the Right. This makes the situation complicated and unstable. Current System above, the Draft Report suggests that the Current System should be revised in the following direction: adopt incentive plans for the inventor employees in accordance with the process set forth in the guidelines to subsection c below). It is explicitly stated that by this requirement, the inventor employee would be secured the right substantially equal to the inventor's right under the current Article 35. As exception to this rule, such entity that desires to make the Right belong to the inventor employee (such as a university and a research institute) should be allowed to do so. For an entity having no internal rules for Employee Invention, appropriate measures should be adopted so that the inventor employee's right should not be unfairly treated. Incentive Scheme government should issue guidelines for procedures in accordance with which the employer should accommodate discussions with the employees on incentive scheme. At the Subcommittee meeting, it was confirmed that so long as the rule is adopted through the process which is noncompliance with the guidelines, the rules should be considered reasonable and thus, the compensation calculated in accordance therewith should be considered reasonable. The most controversial point was who should have the Right, particularly in the case where an employer does not adopt any internal rules on this point. The Subcommittee's opinion on this point seems to be undecided despite the language in the Draft Report. Some committee members still strongly claim that the Right should belong to the employees in this case to protect their interests. The Draft Report was finalized along with the discussion at the Subcommittee meeting in November 2014 and published in January 2015. |