Fairness for all – employee inventions between contract and legislation in Korea and Japan

Abstract

Employee invention lies in between contract and legislation. While the entitlement for an invention and the right to file for patent on that invention belong to the inventor who is a natural person, such right may be transferred to corporations by contract. This chapter examines the impact of concept of collectivist solidarity has on the regulation of employee invention, with case studies of Korea and Japan. Despite differences in tradition and culture, in both countries, life time employment in a large corporation have been an important aspiration for labor market entrants. In contrast, mobility in employment is seen as a societal problem. In both countries, there have been recent legislative changes on the employee inventions to promote legal certainty and discourage wasteful litigations. Starting from the general discussion of the default rules, the chapter argues that despite these changes in the employee invention, the law still hold to the myth of salaried inventor based on mechanical solidarity as the norm against facts of individual inventors, and how particularly in the calculation of fair compensation in the statutes seem to prolong such myths.