Free Law Dissertations - According To The Fact, Ben Is Appointed As A Programmer For The Production Of
According to the fact, Ben is appointed as a programmer for the production of computer programs, thus it is likely to be argued under S.39 (1) (a) that the invention was created in the course of Ben’s normal duties as an employee of Odyssey.
Furthermore, Odyssey may challenge under S.39 (1) (b) that Ben, as an employee of Odyssey owes a special obligation to advance the interest of his employer. Both challenges are likely to succeed as long as the inventions fall within the course of employment. Nevertheless, Ben may argue that the invention was not in the course of his employment. Alternatively, he may argue that it was not his creation; he only assisted Bill with the creation. Since, under employment law Bill is not classed as an employee but an independent consultant.
Additionally, if Ben’s contract of employment no longer subsist then this may assist Ben in arguing that the employer was only entitled to inventions created under that employment ..during the subsistence of this contract of employment
With regards to Bill’s entitlement to the ownership of the patent, it is likely that S.39 would not serve any use to Odyssey on the basis that Bill is an independent worker rather than an employee. However, Odyssey may represent that Bill is an employee of Odyssey in order to use S.39 (1). If Bill is established to be an employee, same principles apply as applied to Ben. Conversely, if Bill is not an employee of Odyssey, he is likely to have ownership of the patent.
If Bill has a right of ownership to the patent but Ben does then Odyssey will have co-ownership in equal shares with Bill as under section 36 of the PA 1977. The fact does not suggest whether application for patent is granted or not, in the event that it is not granted Odyssey may make an application under S.8 that it has a right to be granted the patent. If it is granted the application is made under S.9 of the 1977 Act. Subject to the statutory invention, no contractual invention can diminish the employee’s right in an invention under section 42(1) and (2).
BENEFITS AND SUBSEQUENT LICENSES OF THE PATENT
In the event that Odyssey has a full ownership of the patent Ben and Bill would be entitles to claim compensation under section 40 of the PA1977, which entitles the employee to compensation where the patent belong to the employer. The amount of compensation is determinable by section 41 of the Act. Under S.41, the employee is entitled to a fair share having regards to the circumstances. Furthermore, the employee is entitles to any benefit derived or is likely to be derived from assignment, assignation or grant (S.41 (2)). Section 39-42 is only applicable if the employee was mainly employed in the UK or if the place of employment is not determinable that the employer business was based in the UK (S.43 (2))
Furthermore, according to developed caselaw and under S.
