According to the Portuguese constitutional law, everyone has the right to create new inventions. A different issue is knowing who has the right to patent the invention, that is, who has the right to obtain the intellectual property rights and the corresponding exclusive of economic exploitation of such invention.
The general rule is that the right to the patent belongs to the inventor who made the invention. There are, however, deviations to this rule, namely when the invention is made within the scope of a working contract. In such case, if the inventive activity was foreseen in the contract, the employer automatically owns the invention rights. If the inventive activity was not foreseen but, still, the invention made is within the scope of employer’s business, the employer will have an “option right” to the patent, including the right to obtain the ownership of a patent application already filed, provided that he pays a monetary compensation to the employee/inventor according to the importance of the invention. This option right must be decided by the employer within three months after the communication of employee/inventor. The employee/inventor must inform his/her employer about the invention within three months of the date on which said invention is considered completed.
Similarly, when the invention has been made on demand, the entity that requested the invention will own the patent rights, except if the parties agree differently.
Regarding inventions made by employees/collaborators of public collective institutions (e.g., universities and public research centers) as result of their research and development activities, the right to the patent belongs to the public institution. The inventor will, in any case, be entitled to have a share in the economic benefits obtained by the public collective institution from the exploitation or assignment of the patent rights, the terms and conditions of such sharing being laid down in the statutes or intellectual property policies of such collective institutions.
In any case, when the patent is not filed by the inventor, the law acknowledges to him/her the right to be mentioned as such in the application and in the certificate.
Rita Mendonça
For more information or any question please contact us (sgcr@sgcr.pt).
