13.4.5 Disputes concerning employee inventions
Articles L. 611-7 and L. 611-7-1 of the IPC establish a public order system for the inventions of employees and interns,296 which is applied in the absence of a contractual provision more favorable to the employee. This system is an exception to the general principle that the title right belongs to the inventor;297 it is therefore logical that the Court of Cassation ruled that the exceptions provided for in Article L. 611-7 were limited and can only be applied to the persons referred to therein.298 Specifically, non-salaried corporate officers cannot be subject to those provisions.
This system applies both to private sector employees and to civil servants and public officials. The latter are, however, subject to specific provisions,299 in particular in relation to the calculation of additional remuneration.
In practice, the system under the IPC may be supplemented and expanded by:
Collective agreements are, for the most part, comparatively imprecise and largely repeat the provisions of the law. In particular, they do not generally specify the rules for calculating additional remuneration or fair prices.300 Where company agreements exist, a significant proportion of disputes about additional remuneration concern the application of such practices. These practices may be cited by employees, but it is normal for employees to contest their enforceability by calling for higher additional remuneration than that paid by their employers.
Three categories of inventions are provided for in the IPC.
The first consists of inventions made in the course of employment. They are produced by the employee in the conduct of “either an employment contract including an inventive assignment consistent with their actual tasks, or studies or research with which they are explicitly tasked.” Such inventions belong to the employer; from their creation, the employer has the sole patent right. The quid pro quo for this automatic devolution of the inventor’s rights to the employer is that the employee has the right to “additional remuneration.”
The second category of employees’ inventions consists of attributable inventions made outside the scope of employment. This concerns inventions that: (i) are not inventions made in the course of employment, but (ii) are linked, in one way or another, to the company of the employee inventor. This link may take various forms and the law targets inventions made “either during the performance of one’s duties, in the company’s field of activity, or through knowledge or use of techniques or means specific to the company, or data procured by it.” Such inventions belong to the employee, but the employer may exercise a right of attribution through the payment of a “fair price.”
The third category consists of inventions that are neither inventions made in the course of employment, nor attributable inventions made outside the scope of employment: they belong to the employee.
Articles L. 611-7 and L. 611-7-1 of the IPC apply to all inventions, whether or not they have been patented, provided that they are patentable.301 The IPC actually applies to all inventions, whether or not they are protected by patent.302 In practice, disputes concerning unpatented inventions are infrequent. The case law has clarified that the legal framework only applies to patentable inventions.
To enable the classification of inventions and uphold the employee inventor’s rights, as well as those of the employer, the IPC requires the employee inventor to disclose all inventions to their employer, with a precise system of mandatory deadlines. In principle, this system allows the employer to have all the information, enabling the classification of inventions.303 The law also requires the employee and the employer to refrain from any disclosure of the invention as long as there is disagreement about its classification or until a decision has been made on the matter; one of the parties, with the aim of upholding their rights, may file a patent application, but they must notify the other party and postpone the publication of the application for as long as possible.304
The IPC has also established, at the INPI, a joint conciliation committee: the National Commission for Employee Inventions (CNIS).305 Employers or employees may ask the Commission to develop a proposal for conciliation for “any dispute concerning the application of Articles L. 611-7 and L. 611-7-1 of the IPC.”
In France, disputes on employee inventions are therefore not only a matter for the courts, but also for the CNIS.
More specifically, disputes on the status of inventor fall within the jurisdiction of the courts alone; the CNIS takes the view that, by law, it is only competent to hear disputes on the application of the articles on employee inventions, and that disputes on the status of inventor therefore fall outside its jurisdiction.
Disputes on the classification of inventions – as inventions made in the course of employment or attributable inventions made outside the scope of employment – is shared between the CNIS and the courts.
The most frequent type of dispute, concerning the amount of additional remuneration or fair pricing, is also shared between the CNIS and the courts.
Discussed in the following sections are:
cases before the CNIS;
particular features of cases before the courts in relation to employee inventions, including the competence of industrial tribunals306 and courts of law;
the statute of limitations for employee claims.
13.4.5.1 Cases before the CNIS
The CNIS, established under Article L. 615-21 of the IPC, is a joint entity chaired by a magistrate in the judiciary – for several years, it was chaired by a sitting or honorary magistrate from the Court of Cassation – who is supported by two assessors, one representing employers and the other representing employees.307
The CNIS is headquartered at the INPI, which provides its secretariat.308 Its organization and stable composition give its proposals great consistency.
Cases before the CNIS are confidential, as it is a conciliation body. Article R. 615-31 of the IPC states that, in the absence of agreement between the parties before the CNIS, it shall itself draft a sole proposal for submission to the court.309
CNIS procedures are very flexible, and faster and less expensive than legal proceedings. They have the advantage of providing the employer and employee inventor with a conciliation proposal drafted by an independent entity. The CNIS proposal is not binding on the courts but is a valuable source of guidance for the parties. That is why a significant proportion of the disputes brought before the CNIS are settled amicably after the CNIS presents its proposal.310
Statistics published by the CNIS for the period from 2022 to 2024 show that there were:
16 referrals in 2022;
8 referrals in 2023;
13 referrals in 2024.
Statistics published by the Judicial Court show that there were:
3 referrals in 2022;
4 referrals in 2023;
4 referrals in 2024.
There is, of course, a delay between a case being referred to the CNIS and a potential referral to the court. Nevertheless, these figures show that a high proportion of the cases brought before the CNIS result in an agreement, either because the CNIS proposal becomes final or because the parties arrive at a compromise by freely adapting the proposal.
In close to 90 percent of cases, referrals are at the employee's initiative. It can also be assumed that referrals at the initiative of employers are made when the employee has applied directly to the courts.
In 77 percent of cases, the referrals concern requests for additional remuneration; the remaining referrals relate, in roughly equal proportions, to: (i) the classification of inventions (inventions made in the course of employment or attributable inventions made outside the scope of employment); and (ii) a request for a fair price.311
The procedure is adversarial.312 There is free choice of representation; it is common for employees to be supported by union representatives or lawyers. Employers are often supported by industrial property advisers or lawyers.
Either party may bring an action before the CNIS; requests are not subject to any formal requirement and may be filed with the CNIS secretariat or sent by registered letter with a request for acknowledgement of receipt. The CNIS calls the parties to a preliminary meeting, notifying them of the composition of the CNIS and informing them of the option of requesting a change in assessors.313 At the same time as this summons, the CNIS sends the parties advice prepared by the INPI.314 In practice, an INPI examiner informs the CNIS of the geographic scope of the applications filed to protect the invention and produces guidance on the patentability of the invention, most often through the granting procedure for a French patent application or a European patent application protecting the invention(s) subject to the referral.315 This summons also establishes a deadline for written submissions from the parties.316
During the preliminary meeting, the CNIS hears the parties, as well as the INPI examiner who prepared the report on the patentability of the relevant invention(s). The objective established in the law is for the CNIS to “endeavor to align [the] opinions [of the parties] and reach a conciliation.”317
By law, the CNIS President may “take any investigative measure”:318 in practice, this means that the President (or his or her authorized assessors) may question the parties during the meeting.
After having heard the parties, the CNIS deliberates and informs them of the proposal it intends to make; if it notes conciliation between the parties as to the classification and/or the sum proposed, it prepares an official report of the agreement reached.
In the absence of conciliation, the CNIS announces the date on which it will submit a conciliation proposal to the parties, setting out the points outlined.319 On that date, the parties (and their representatives, where required) are notified of the conciliation proposal.320
By law, the CNIS drafts a conciliation proposal within six months of the referral. In practice, it usually takes between nine and 12 months.
At the same time that it notifies the conciliation proposal, the CNIS reminds the parties that this proposal constitutes an agreement if, within a month of its notification, neither of them has brought the matter before the competent judicial court to dispute the proposal.321
If the case is brought to the judicial court before the CNIS, it must stay proceedings in accordance with Article R. 615-30 of the IPC, in principle until the expiry of the six-month period that the CNIS has to prepare a conciliation proposal. In practice, the court waits for the conciliation proposal, even beyond this six-month period.322
13.4.5.2 Cases before the courts
This section primarily concerns the competence of courts323 and industrial tribunals: the cases themselves follow the usual rules of the CCP, with the exception that cases following a CNIS proposal are addressed by the judicial court sitting in chambers and the proceedings are therefore not public.324
The different types of disputes brought before the courts will be discussed:
The courts have exclusive jurisdiction to rule on the status of inventor; this matter does not fall within the competence granted to the CNIS under Article L. 615-21 of the IPC, with referral to the CNIS assuming the filing of a patent application and the designation of the applicant as inventor.
Disputes on the classification of inventions and the amount of additional remuneration or fair pricing are shared with the CNIS; a significant proportion of disputes concern setting amounts of additional remuneration.
The first issue is jurisdiction: it is widely known that disagreements that may arise during any private employment contract fall, in principle, under the exclusive jurisdiction of industrial tribunals. However, industrial tribunals have no jurisdiction to hear disputes assigned to another court by law.325 In industrial property, Article L. 615-17 of the IPC establishes that civil action and applications for invention patents, “including cases provided for in Article L. 611-7”, shall be brought exclusively before the Paris Judicial Court.326
The words “including cases provided for in Article L. 611-7” were added to Article L. 615-17 of the IPC by Act No. 2014-315 of March 11, 2014. At the time, observers saw, in this amendment, the intention of the legislature to bring disputes concerning employee inventions under the exclusive jurisdiction of the Paris Judicial Court.
In general, Article L. 615-17 of the IPC (and similar provisions in other IP laws) are interpreted by the Court of Cassation by applying the principle of “specific rules”: disputes only fall under the jurisdiction of a specialized judicial court when they involve the application of specific rules in the IPC.327
Most disputes concerning employee inventions have long been brought before the CNIS and the Paris Judicial Court.
Through a decision of May 3, 2018, the Social Chamber of the Court of Cassation328 ruled that claims for remuneration for “inventions” that were neither patentable nor theoretically patentable fell under the jurisdiction of industrial tribunals when they do not require assessment of the existence or non-existence of a patent right.329
It has become more common for employees to include ancillary claims relating to creations – software or inventions – in disputes concerning their dismissal. In the above-mentioned decision of 2018, the Social Chamber of the Court of Cassation recognized the jurisdiction of the industrial tribunal in a dispute in which an engineer from an IT company, who had been fired, had submitted claims for patentable software. The Court stated that:
[...]the employee sought the benefit of additional remuneration for the invention by calling for the implementation of Article 75 of the National Collective Agreement for Technical Consultancy Firms, Engineering Consultancy Firms and Consultancy Firms of December 15, 1987 (SYNTEC) [...].330
The Social Chamber recently clarified its case law in a case where an employee, upon being fired, applied to the industrial tribunal for additional remuneration for an invention that was not the subject of a patent application. The employer contested the claim on the grounds that the products to which the invention in question related “had not been the subject of patent applications and it had not been demonstrated that they would be patentable.” Logically, as it was necessary to examine the patentability of the invention to resolve the dispute, the Court concluded that the additional remuneration action fell within the exclusive jurisdiction of the Judicial Court.331 The ruling indicates that:
[...] it follows from Article L. 615-17 of the Intellectual Property Code that action brought by an employee who has made an invention belonging to the employee, in regard to the payment of additional remuneration in implementation of Article L. 611-7 of the same Code, falls under the exclusive jurisdiction of the Judicial Court.
Independently of the question of jurisdiction, an initial dispute brought before the Paris Judicial Court concerns the status of inventor. As indicated earlier, the CNIS is not considered competent to rule on the status of inventor, as it was established to hear “any dispute concerning the implementation of Articles L. 611-7 and L. 611-7-1”:332 as establishing the status of inventor is a prerequisite for applying those articles, it must necessarily precede their application.
Assessment of the status of inventor involves determining the extent to which the purported inventor was able to make a contribution to the invention claimed. That is what the Court of Cassation stated in a ruling where it considered that the inventor:333 “was not merely an employee responsible for producing working drawings of the displays designed by the team of engineers; the Court of Appeal, which thus characterized the inventive step used by this person, [...] had justified its decision.”
This case law continues to be applied, with the difficulty lying in when to assess the status of inventor: should one consider the inventive contribution when the invention is made or, on the contrary, assess it when the court gives its ruling, in view of the prior art as it stands following the examination? That question appears not to have been settled, doubtless because it is theoretical; if it transpires that an invention is not patentable, the probability of a dispute arising over its exploitation (and over the remuneration owed to the employee inventor) would seem to be limited.
This dispute is highly fact-based and requires the respective contributions of the inventors to be identified years after the invention, which raises issues of evidence. Invention disclosures proposed by employers often invite inventors to specify their respective contributions, but in the form of percentages, without specifying the nature of the contributions; moreover, practice shows that inventors do not always provide the requested percentages.
The second type of dispute brought before the courts – or before the CNIS – relates to the classification of inventions. The question raised is thus that of the task assigned to the employer, regardless of whether it is inventive; the additional remuneration for an invention made in the course of employment is actually intended as a reward for the employee's invention, which is not equal to the value of the invention. Conversely, the fair price must reflect the value of the contribution. The fair price is thus, by nature, even more important than the additional remuneration: the employee inventor therefore has a clear interest in arguing that the invention is an invention made outside the scope of employment, whereas the employer has an incentive to argue that the invention is an invention made in the course of employment.
Article L. 611-7 of the IPC provides, first, that an invention falls into the category of inventions made in the course of employment when it is made by the employee in the performance “of an employment contract involving an inventive task corresponding to their actual duties.”
The first part of the definition does not pose any specific issue, with the law merely requiring the court to verify that the inventive task in the employment contract corresponds to the employee's actual duties. Systematically including an inventive task in employment contracts is therefore not decisive as the courts verify the duties assigned to the employees and the existence of an inventive task in their duties at the time the invention was produced.
Article L. 611-7 of the IPC then states that an invention falls within the category of inventions made in the course of employment when it is made by the employee when carrying out “studies and research explicitly assigned to them.”
An invention produced in the context of a one-off study and research task is an invention made in the course of employment. Most disputes on classification involve the assumption that employee inventors do not have an inventive task in their employment contract. The courts then undertake a factual analysis of the tasks assigned by the employer, using a highly pragmatic approach by focusing on the actual tasks carried out by the employee.334
The third type of dispute brought before the courts – or before the CNIS – concerns the amount of additional remuneration (or fair price). It is, by far, the most statistically significant type of dispute.
As indicated earlier, the law applicable to private sector employees does not specify the means of calculating additional remuneration; collective agreements are not much more specific. Article R. 611-14-1 of the IPC, on the other hand, provides specific calculation rules for civil servants and public officials and it has been clearly decided that those rules do not apply to private sector employees.335 Disputes on the calculation of additional remuneration therefore largely concern the implementation of collective agreements; unilateral practices established by employers may be invoked by employees, but the employees then argue that those practices are not enforceable against them in order to claim amounts higher than those paid to them.
The Court of Cassation long ago rejected the principle that additional remuneration should be determined on the basis of salary.336 that argument had been put forward by employers to limit additional remuneration.
In the same judgment, the Court also approved the proposed calculation for additional remuneration, in the following terms:
Given, secondly, that having stated that none of the parties were disputing the expert's conclusions on the legal framework for this additional remuneration, on the definition, scientific importance and challenges of the practical implementation of the invention, and on the importance of M.Y.'s personal contribution [...] the Court of Appeal was right to rule as it did, having not determined the amount of the additional remuneration owed to him solely on the basis of the economic value of the invention, as alleged by Hoechst.
Following that decision, the trial courts apply (in the absence of other provisions of collective conventions or agreements) the following criteria:337
the inventor's personal contribution;
the broader context of the research;
the challenges of developing the invention;
the economic significance of the invention.
The inventor's personal contribution is most often limited to merely taking into account the number of inventors, in the absence of additional clarifications on the respective contributions of the different inventors. The courts are reluctant, years after the invention and in the absence of the other inventors, to risk allowing the inventor who launched the dispute to minimize the contribution of those other inventors.
The criterion of the broader context of research calls for consideration of the circumstances under which the invention was made. Inventors often refer to the efforts they had to make to convince their employer of the importance of their invention. In contrast, it may be assumed that this criterion would be less important for an employee who invents in the context of a research program run by their employer.
The challenges of developing the invention indicate how much the employer has invested to exploit the invention. In other words, assessment of the economic significance must take into account not only the income generated by the invention, but also the amounts spent by the employer.
There remains the most discussed issue: economic importance. Employee inventors often claim amounts proportionate to the turnover of the products or services that incorporate the invention (or the corresponding profits), on the grounds that such turnover or profits are an indication of economic significance. The Court of Cassation has not taken a position on that issue, but the trial courts recall that "the salary bonus owed to the employee inventor may not in any case be treated as a license fee proportionate to turnover generated or profit made."338 This solution is logical, as the proportional remuneration is a bonus, but does not constitute a license. That said, significant exploitation should lead to higher additional remuneration.
Another aspect of the assessment of economic importance is the causal link between the invention and the commercial success of the products or services that incorporate the invention; that assessment does not differ vastly from assessments carried out by the courts to award damages for infringement. The classic example, for an equal turnover, is that the economic importance of an invention involving a medicine's active ingredient should be greater than that of an invention involving a marginal improvement to the production process.
In conclusion, the assessment of additional remuneration (as with damages for infringement) remains highly fact-based. Practitioners' attempts to identify strict mathematical rules are hampered by judges' obligation to assess the facts of each case.
The final type of dispute concerns fair prices, owed when the invention is an invention made outside the scope of employment and when the employer exercises the right of attribution. The law establishes that the fair price is set by the CNIS or the courts and that:
they will take into consideration all evidence that may be provided to them, including by the employer and by the employee, to calculate the fair price in accordance with both on the basis of the initial contributions of each party and the industrial and commercial utility of the invention.
It is true that the fair price is of a different legal nature from additional remuneration. This different nature is reflected in the average amounts in CNIS proposals. Between 2010 and 2023, the average additional remuneration, per invention, was 6,116 euros, while the average fair price, per invention, was 38,000 euros.
Those sums seem small to inventors in relation to the value of the invention; however, the fair price should not correspond to the value of the invention, as it may be assessed in an assignment agreement. The law stipulates that consideration be given to the initial contributions of the inventor and their employer.
In one of its few published decisions on the matter, the Paris Court of First Instance ruled:339
The fair price being the compensation for the allocation, its amount must be determined as at the date on which the claim of Mr. J.D.C. arose, independent of the subsequent industrial or commercial success or failure of the invention: only the potential industrial and commercial utility of the invention on the date the option is exercised may be taken into consideration and not the turnover attributed to its industrial implementation, which is not attributable to the employee but to the company in accordance with its own manufacturing, promotional and marketing capabilities, all subsequent evidence may only be used to inform the court of the circumstances at the time of allocation but not to determine the fair price directly.
It should be emphasized that the fair price is not equal to the value of the invention.
Again, setting a fair price is based on facts. The Court of Cassation has, nonetheless, specified a number of rules to help with assessment:340
If the fair price must be assessed as at the date when the employer exercises its right of attribution, evidence subsequent to that date may be taken into account to confirm the assessment of the invention's development potential.
As specified in the same ruling, "the fact giving rise to the payment of a fair price is the production of the invention", but the judge remains free to consider the economic reality presented years after the production of the invention.
In practice, it is still difficult to propose strict calculation rules in disputes based heavily on facts. The methods used for the CNIS proposals mentioned earlier are only indicative, as the number of cases remains very limited, with one or two cases per year. The number of cases before the courts – around 10 published decisions – is also too small to be statistically significant.
13.4.5.3 Statute of limitations for bringing action
Most actions brought by employee inventors occur at the expiry or termination of the employment contract, explaining why the statute of limitations is invoked by employers in almost all cases.
Actions brought by employee inventors are not subject to the specific statute of limitations for bringing infringement actions, as mentioned earlier, but rather to the general rules on statutes of limitations (Section 13.3.1.3). Regarding the procedure, pleas of inadmissibility based on the statute of limitations fall within the competence of the pre-trial judge, who may refer the case to the court, as mentioned earlier (Section 13.3.6.2.3).
The length of the statute of limitations depends on the nature of the employee's claims. Additional remuneration for inventions made in the course of employment is analyzed as a supplement to the salary. It follows the broader system for the statute of limitations regarding salaries: the statute of limitations is thus three years.341 In contrast, for attributable inventions made outside the scope of employment, the fair price is considered a debt between the trader (the employer) and the non-trader (the employee inventor), with a five-year statute of limitations.342
With the notable exception of the collective agreement for the metalworking industry, in the version applicable from January 1, 2024, which specifies the amount of additional remuneration (Article 149 of the agreement).
Court of Cassation, Com., February 22, 2005, Appeal No. 03-11.027.
Court of Cassation, Com., February 12, 2013, Appeal No. 12-12898. The Court indicated that the provisions of the collective agreement limiting additional remuneration in the event of grant of a patent and exceptional interest are considered null and void.
“Statistique du contentieux des inventions de salariés devant la Commission Nationale des Inventions de Salariés et le tribunal judiciaire” (Statistics on disputes concerning employees’ inventions before the National Commission for Employee Inventions and the Judicial Court), Propriété industrielle, No. 2, February 2023, Study 1.
CNIS publication of May 13, 2025.
Fifteen days before the meeting. There are no penalties attached to this deadline, provided that the principle of the right to be heard is respected.
With regard to patents, Court of Cassation, Com., February 16, 2016, Appeal No. 14-24.295. For an assertion of the same criterion of “specific rules” with regard to trademarks, see Court of Cassation, Com., October 14, 2020, Appeal No. 18-21.419.
Court of Cassation, Social Chamber, May 3, 2018, Appeal No. 16-25.067.
Court of Cassation, Social Chamber, May 3, 2018, Appeal No. 16-25.067. In this case, the SYNTEC collective agreement was applicable, which provides for the payment of a bonus to the employee inventors of non-patentable inventions and software.
Caron, C. (2018). Invention patents, Employee inventions before industrial tribunals! Comm. Comm. Elec., No. 7–8, July–August, comm. 53.
Court of Cassation, Com., November 20, 2007, Appeal No. 06-17915. For a more recent application, see Paris Court of Appeal, January 15, 2019, RG No. 17/08434, in which the Court analyzes the “contribution of M.D. to the invention.”
For an example of an invention made in the course of employment developed by a reliable expert, see Paris Court of Appeal, April 2, 2021, RG No. 19/03350.
Paris Court of Appeal, December 16, 2011, RG No. 10/21242; Paris Court of Appeal, March 28, 2014, RG No. 13/11578.
Court of Cassation, Com., November 21, 2000, Appeal No. 98-11900.
For a reminder of these criteria (without the broader research context), see Paris Court of Appeal, November 18, 2022, RG No. 15/06440. This ruling was overturned, but not on the issue of these criteria.
Paris Court of Appeal, November 18, 2022, RG No. 15-06440.
Paris Court of First Instance, March 30, 2017, RG No. 16/06011.
Court of Cassation, Com., July 9, 2013, Appeal No. 12-22.157.