IP Policy FAQ

These FAQs are aimed at professors, academic staff and project employees at HAW Kiel.

Important distinction for students:

• Students without an employment relationship are independent inventors: the Employee Inventions Act (ArbnErfG) does not apply to them.
• Students in an employment relationship (e.g. student assistants) are to be treated like other employees under employment law: the ArbnErfG applies.

Note:

What is the Employee Inventions Act (ArbnErfG)?

The Employee Inventions Act regulates who owns inventions that employees make in the course of their work. It stipulates

• that employees must report inventions that arise from their official activities to their employer (so-called official inventions),
• that the employer can decide whether to claim the invention and thus assume the exploitation rights,
• that employees have a statutory right to remuneration in return.

For universities, a special regulation applies in Section 42 ArbnErfG, which grants researchers significantly more favorable conditions compared to industry, in particular a statutory remuneration claim of 30% of the gross exploitation income.

The IP policy provides legal certainty and guidance. It explains how to deal with research results, data and intellectual property without unnecessarily restricting research, teaching or publications.

An invention is a technical solution to a specific problem that is new and potentially patentable or eligible for a utility model (Section 2 ArbnErfG). Software-based technical solutions can also be inventions. Pure software without technical reference, on the other hand, is protected by copyright, but is not an invention within the meaning of the ArbnErfG.

Digression

An invention within the meaning of the German Patent Act (PatG) is a teaching for planned technical action that solves a technical problem by technical means. It must be new, involve an inventive step and be capable of industrial application (Section 1 PatG). The invention uses controllable natural forces to achieve a causal, foreseeable success.

Core aspects of the invention in the PatG:

• Technical character: inventions must be in a technical field.
• Teaching for technical action: A specific instruction on how to solve a problem (product, device or process).

Requirements for protection (§ 1 PatG):

• Novelty: The invention must not belong to the state of the art.
• Inventive step: It must not be obvious to a person skilled in the art from the prior art.
• Industrial applicability: It must be producible or usable.

No inventions: Mere discoveries, scientific theories, aesthetic creations or plans for commercial activities are not inventions within the meaning of the PatG.

Immediately, as soon as the technical solution has been conceptually finalized, and always before publication. If you are planning to publish your invention, you should generally report it at least two months in advance so that HAW Kiel can prepare an IP application in good time (Section 42 No. 1 ArbnErfG).

Please note

The obligation to notify also applies to inventions from secondary employment and third-party funded research, provided they are essentially based on your work (Section 4 (2) ArbnErfG). It also applies to inventions after the end of the employment relationship if they were developed during the period of employment.

By means of the invention disclosure form of HAW Kiel, in text form (written form or e-mail). The notification must contain the following information (Section 5 (2) ArbnErfG):

• Description of the technical problem and the solution
• Presentation of the development process
• Details of the contributors and their own contribution
• Reference to planned publications

Staff Unit T will support you and confirm receipt of the notification.

After receiving the complete notification, HAW Kiel has four months to decide whether to claim or release the invention (Section 6 (2) ArbnErfG). If the university does not expressly release the invention, it is automatically deemed to have been claimed after this period has expired: all commercial exploitation rights are transferred to the university.

• In the event of utilization: application for industrial property rights and further action by the university
• Upon release: you can freely dispose of your invention

Note

Even after claiming, you as the inventor retain a non-exclusive, personal right to use your invention for your own teaching and research activities (Section 42 No. 3 ArbnErfG). This right is inalienable.

Confidentiality initially applies after the invention disclosure. Publications are possible as soon as an IP right has been applied for or the invention has been released.

You can also permanently refuse to disclose your invention for reasons of freedom of research (negative freedom of publication, Section 42 No. 2 ArbnErfG). If you later decide to disclose your invention, the obligation to notify is revived.

Free inventions arise outside the scope of employment (Section 4 (3) ArbnErfG) and belong to you. Free inventions must be reported to the university in accordance with Section 18 ArbnErfG. On request, the university can also make an offer to transfer or license the invention.

Please note

Caution: Inventions from secondary employment can also be service inventions, namely if they are largely based on research results developed on official business. If in doubt, ask the T staff unit at an early stage.

Yes, according to Section 42 No. 4 ArbnErfG, a special statutory provision applies to universities:

Example

If HAW Kiel receives 10,000 euros in gross license income, the inventor receives 3,000 euros, regardless of the amount spent on the patent application.

No. Publications remain a central component of Academic Work and have priority over exploitation interests. Intellectual property rights should not prevent publications but, where appropriate, prepare them in advance.

Usually only in the short term. If you report an invention at least two months before the planned publication (Section 42 No. 1 ArbnErfG), the university has sufficient time to file a precautionary application without significantly delaying your publication.

Yes, theses may generally be published. If property rights are relevant, solution-oriented and time-limited regulations are made that do not jeopardize your degree.

No. Software is initially protected by copyright (UrhG). It can also be considered a patentable invention if it represents a technical solution to a problem that goes beyond the normal interaction of software and hardware. Pure algorithms or business methods are generally not patentable in Germany.

Note

The copyright to works created in the context of an employment or service relationship generally remains with the creator, but the applicable law tacitly grants HAW Kiel the necessary rights of use (Section 43 UrhG). This applies accordingly to software.

However, Section 43 UrhG does not apply to professors : the creation of copyrighted works is not part of their official duties. Their academic works, teaching materials and software are therefore generally "free works". Professors decide for themselves whether and how they distribute them and are not obliged to grant HAW Kiel rights of use.

Section 43 UrhG applies to academic staff, research assistants and student assistants, insofar as they are working in accordance with instructions (so-called compulsory works): The rights of use are tacitly transferred to HAW Kiel. The situation is different for independent research and teaching activities (e.g. dissertation, habilitation): Such works are free works.

Inshort: In the event of ambiguities, especially in the case of software that has been developed both for official purposes and independently, it is advisable to clarify the situation with the T staff unit at an early stage.

Under current German and European law, AI-generated results without a sufficient human contribution are neither patentable nor copyrightable. The decisive factor is whether there is an independent intellectual contribution by a human being.

If you use AI tools in your research: Carefully document your own substantive contribution. If you have any questions about IP classification, please contact Unit T.

Research data are scientific results of HAW Kiel. They must be carefully documented, secured and, as far as possible, shared (principle: FAIR data principles). For externally funded projects, the requirements of the funding bodies (e.g. data management plans) also apply.

Note

HAW Kiel is currently developing its own research data policy, which will contain further regulations on the handling of research data. As soon as this has been adopted, it will take precedence over the general information in the IP Policy and here. Please contact the T staff unit for information on the current status.

Basically yes: as open as possible, as closed as necessary. Exceptions apply for data protection reasons (GDPR), ongoing property right applications, contractual agreements with industry partners and dual-use relevance.

Before the start of the project, mandatory. IP regulations are typically part of third-party funding and cooperation agreements. Subsequent clarifications are legally difficult and can significantly block the exploitation of results.

As a rule no. HAW Kiel retains rights of use for research and teaching. Complete IP transfers without appropriate consideration violate budgetary law and the EU state aid framework. Please have contract clauses checked by the T staff unit before signing.

Yes, without restriction. At most, time-limited blocking periods (typically 3 to 36 months) are permitted for the preparation of property right applications or on the basis of special agreements (NDA) with cooperation partners.

Note

Contractual clauses with a complete ban on publication or an unrestricted obligation to obtain the partner's consent are not permitted. Have such clauses checked by staff unit T before concluding the contract.

This depends on the employment relationship:

• Without an employment relationship: independent inventors can freely dispose of their invention.
• With an employment relationship (e.g. student assistant): Service inventions belong to HAW Kiel; ArbnErfG applies.

In the case of project participation, clear IP agreements must always be made in advance.

Contractual regulations are also required here before the project starts. In the absence of such regulations, the subsequent assignment of ownership of results can become legally disputed.

No. HAW Kiel will take care of the organization, registration and exploitation. As an inventor, you will be professionally involved and informed about the status of activities.

Yes, HAW Kiel, in particular through the university's own StartUp Office (SUO), supports spin-offs by:

• Counselling on IP regulations and licensing of property rights
• Assistance with start-up offers and funding programs
• Enabling spin-offs while safeguarding the interests of the university

Dual-use research results can be used for both civilian and military or security-related purposes. They are subject to export control law (AWG, AWV) and the EU Dual-Use Regulation. Please contact the T staff unit in good time.

First contact the T staff unit. If no amicable solution can be reached, you can appeal to the statutory arbitration board for employee inventions at the DPMA (Sections 28 et seq. ArbnErfG). The initiation of arbitration proceedings suspends the limitation period for your claims.

Technology and Knowledge Transfer Office (T)

Counselling on: inventions, property rights, projects, publications, spin-offs, cooperation agreements, research data and dual-use.

Contact: Dr. Andreas Borchardt | Jörg Sosna

Sokratesplatz 1, Building C01-0.09

E-Mail: [function email] ip(at)haw-kiel.de

Phone: 210-1030 | -1029

Better early than too late. Specifically, we recommend

• Before you sign a project contract or cooperation agreement
• As soon as you have developed a technical solution that could be new or you want to submit a publication or register a presentation in this context
• As soon as you are unsure whether dual-use regulations are relevant

• In case of doubt: report first, then publish.
• Always report inventions, even from secondary employment and third-party funded research.
• Planned publication: notify at least 2 months in advance (Section 42 No. 1 ArbnErfG).
• Clarify IP before project start, not retrospectively.
• Revenue sharing: 30% of gross exploitation revenue, regulated by law and cannot be less than this.
• Recognize and report dual-use relevance at an early stage.

It is better to contact the T staff unit at an early stage: early Counselling prevents problems.