Wynalazek dokonany przy pomocy przedsiębiorcy – pomiędzy interesem twórcy, przedsiębiorcy oraz dobrem ogółu

According to Art. 11 Section 5 of the Industrial Property Law Act, an entrepreneur has the right to use an invention that is made with their assistance. Thus, the legislature has extended the circle of subjects entitled to use of an invention beyond the patent holder. The aim of the article is to evaluate this regulation and to consider the practical consequences of the solution. Whether this solution indeed takes into account the individual interests of the creator and entrepreneur in an optimal way without losing sight of the public interest is not obvious. The analysis was limited to inventions made by a creator employed by an entrepreneur. What may raise the most objections is the risk of a conflict of interests in the exercise of rights attributed to the creator and the entrepreneur by Art. 11(5) IPL. Taking into account the obligations arising from the employment relationship, it may turn out that in many cases the rights of the two parties will be mutually limited, preventing or discouraging the real use of the invention. One solution that is worth considering is the differentiation of the legal situation of inventions made by an employee with the assistance of an entrepreneur; those made by an inventor who is not employed by the entrepreneur; and those made by the creator/ employee to which are and are not related to the entrepreneur's business activity. In the case of these inventions, the problems presented in the article are particularly strong and there are justified reasons for granting the entrepreneur ex lege the right to obtain a patent. It does not necessarily have to take the form of a primary right attributed to the employer, but it may be acquired secondarily after the employer verifies whether they are truly interested in the invention.