A Determination Criteria on Validity of a Non-Assertion Agreement on Employee Invention Remuneration

If an employee inventor succeeds her employee invention to her employer company, the employee has the right to receive fair remuneration according to Article 15 of the Invention Promotion Act. Disputes may arise between the company and the employee regarding such remuneration. In order to resolve such disputes regarding employee invention remuneration, there are cases where a ‘non-assertion agreement on an employee invention remuneration’ is concluded between the company and the employee. Since such an agreement is concluded between the company and the employee, there is a possibility that it will be unilaterally advantageous to the company, and from that perspective, there is a possibility that such an agreement will be deemed invalid. This paper examines the criteria for determining the validity of such a non-assertion agreement. If a non-assertion agreement on employee invention remuneration is concluded before the invention is created, such an agreement will be generally deemed invalid. If such an agreement is concluded after the invention is created, additional requirements must be comprehensively reviewed to determine whether it is valid. This paper presents such additional requirements as whether there was a substantial negotiation, whether the amount of remuneration was specified, whether there was a significant disadvantage, and others (status, circumstances). In the case of the Coating Korea, the agreement should have been judged invalid based on the fact that there was no substantial negotiation, and the amount of remuneration was not specified. In the future, any non-assertion agreement on employee invention remuneration should be judged invalid if it is not substantially negotiated and/or is unilaterally advantageous to the company.