Employee invention: blanket assignment, lab use, and compensation
Dr. Lea Brunner is employed as a process engineer by Helvetic Microfluidics AG in Switzerland. Her employment contract states: 'All inventions made by the employee during employment belong exclusively to the employer; no separate compensation is payable.' In January 2025 she develops a new microfluidic valve at home on weekends. The valve is not part of her assigned duties, but she uses the company laboratory once to run a pressure test and consumes CHF 300 of company materials. On 1 March 2025 she discloses the valve in writing to Helvetic. On 15 April 2025 Helvetic accepts the invention and files an EP application naming Helvetic as applicant. Dr. Brunner now demands compensation. Helvetic says the contract clause settles the matter and that her use of the lab makes the invention a duty invention. She earns CHF 120,000 per year and has no other invention disclosures.
1. Who owns the valve under Swiss employee-invention law, and does the contractual clause change the analysis?
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Swiss law distinguishes between inventions made in performance of the employee's duties and other inventions. Under Art. 332 of the Code of Obligations, inventions made in the performance of work duties belong to the employer. Other inventions must be offered to the employer in writing; the employer may accept them within six months, and if it does not, they become free. The employee is entitled to special compensation where the invention is not already compensated by salary.
Dr. Brunner is a process engineer, but the valve was developed at home on weekends and was not part of her assigned duties. One use of the company lab and CHF 300 of materials do not automatically convert a free invention into a duty invention. They may give Helvetic a claim for use of its resources or a contractual/equity argument, but they do not by themselves transfer ownership. The written disclosure on 1 March and acceptance on 15 April are within the six-month period, so Helvetic can acquire the free invention if it validly accepts it.
The blanket clause is problematic. A contractual term purporting to assign all inventions, including non-duty inventions, without the statutory offer and compensation mechanism may be invalid or at least unenforceable to that extent. Swiss employee-invention law is protective; the employer cannot contract out of the compensation scheme in advance. The clause does not settle the matter.
2. What compensation is Dr. Brunner entitled to, and how should it be calculated?
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If Helvetic acquires the valve, Dr. Brunner is entitled to special compensation under Art. 332 OR. The amount is not a statutory royalty rate; it is assessed on the value of the invention to the employer, the employee's contribution, the employer's costs and risks, and whether the salary already rewarded the inventive effort. Relevant factors include the CHF 300 materials, the one lab test, the stage of development, the scope of the EP application, and the expected commercial value of the valve.
A common method is a share of the net exploitation benefit, sometimes using licence-analogue royalties, discounted for development risk and employer investment. Because the invention was made outside her duties, her personal contribution is high. Helvetic's own R&D costs, patent prosecution costs, and commercialization risk reduce the percentage but do not eliminate compensation. The fact that she earns CHF 120,000 does not automatically mean her salary already compensates a free invention; that argument is stronger for duty inventions.
The parties should document the calculation. If they cannot agree, the court can determine compensation. A reasonable opening position is a percentage of net profits or a lump sum based on the value of the patent application, but the exact figure requires financial evidence.
3. What should Helvetic and Dr. Brunner do now to avoid losing rights or evidence?
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Helvetic should confirm in writing whether it treats the valve as a duty invention or as a free invention accepted under Art. 332 OR. The acceptance on 15 April is within six months, but the legal basis matters for compensation. It should also preserve the lab records, material consumption records, and the 1 March disclosure. If Helvetic relies on the blanket clause alone, it risks a later finding that the clause is invalid and that its acceptance was ineffective or that compensation is owed.
Dr. Brunner should request a written compensation proposal and keep her weekend development records, drafts, and correspondence. She should not sign a broad release without valuation advice. Both sides should consider mediation before litigation; Swiss courts can hear employee-invention disputes, but the technical and financial evidence is costly.
Finally, Helvetic should review its employment contract template. A clause that assigns all inventions without distinguishing duty inventions and without a compensation mechanism is a recurring risk. The immediate file should be regularized by a written agreement covering ownership, compensation, and the lab-use issue.