If an employer wishes to abandon an patent application filed on a service invention, he must transfer the right to the employee and inventor at the request of the latter. The employer is entitled to abandon the right unless the employee requests the transfer of the right within three months after receipt of the notification (Sec. 16 (1) and (2) ArbEG). However, if the employee requests the transfer of the right within the three-month period, the employer has an oblication to transfer the right. He may then no longer change his mind (BGH, decision of February 6, 2002 - X ZR 215/00. Drahtinjektionseinrichtung).
The BGH now had to decide whether such an obligation to transfer the right exists even if the employee makes a request to this effect after the expiry of the three-month period and denies this.
Following notification within the meaning of Section 16 (1) ArbEG, an employer is obliged to transfer the right to the employee only if the latter makes a corresponding request within the period of Section 16 (2) ArbEG. This also applies if the employer no longer adheres to its intention to abandon the property right application or the property right (BGH X ZR 61/20 – Zündlanze, headnote).