International Business Law - Assignment Example

 [1] Advise 10X on any legal rights it might have in connection with Shabana’s sale of the widget invention to Keg Ltd. The first issue to settle is whether there is tied (service) or free invention. As a rule, if there is free invention, 10X has no right in connection with Shabana’s sale of the widget invention to Keg Ltd. But if there is tied invention, then 10X will have legal rights over the sale. The next thing to do is define the terms on what are the meanings of free and tied inventions. The German Law on inventions gave us the definitions of the two: “§4. Service Inventions and Free Inventions (1) Employee inventions within the meaning of this Law may be either tied or free. (2) Tied inventions (service inventions) are those made during the term of employment. Which: (i) either resulted from the employee’s tasks in the private enterprise or in the public authority, (ii) or are essentially based upon the experience or activities of the enterprise or public authority. (3) Other inventions of an employee shall be free inventions. They shall however be subject to the limitations contained in Sections 18 and 19, below: (4) Subsection (1) to (3) shall apply mutatis mutandis to inventions made by civil servants and members of the armed forces.” From the above, we have seen the definition by classification. If asked whether there is now a basis to declare whether the widget invention as free or tied, we hypothesize that it is tied because the invention was made during the term of the employment of Shabana to 10X. But par (3) of the above section does not exclude inventions that were done outside employment; hence it is still possible that the invention is still free. The next question therefore is: Did Shabana make the widget invention in the course of her employment at 10X? Case facts answer us, yes, by the statement, “Shabana had reached an advanced stage of invention before her return to Australia. She completed work on the creation of the special widget a week later.” Hence, there is no issue that it was done in 10X during employment. The next question therefore is: “How would the employer acquire the tied invention? Is it automatic? Must it not do something to acquire the same in addition to employing Shabana? The answer to question is found in the German law which states, “§5.- Duty to Report (1) Any employee making a service invention shall be under a duty to report the invention to his employer immediately in a special written notice indicating that said writing constitutes the report of an invention. Where two or more employees have contributed to making the invention, a joint notice may be filed. The employer shall inform his employee without delay and in writing of the date the report was received.” It appears on the basis of Section 5 (1), that it is the duty of an employee to report the invention which was not done by Shabana in this case. The facts of the case are clear on this. There was no mention of notice to 10X because the latter had known the invention only upon sale by Shabana. So the next question is: “What is the consequence of Shabana’s failure to report given the disposition made to Keg. Again the German law provide the answer as follows: “§7.- Effect of the Claim (1) On the receipt of a written declaration of an unlimited claim, all rights in the service invention shall pass to the employer. (2) On the receipt of a written declaration of a limited claim, a non-exclusive right to use the service invention shall pass to the employer. Should an employer’s right of use unreasonably impede an employee’s further exploitation of his invention, the employee may request that, within a period of two month, his employer either make an unlimited claim to the service invention or release it to the employee. (3) Dispositions of a service invention made by an employee before his employer has declared a claim shall have no effect on his employer, insofar as the employer’s rights are concerned.” (Emphasis supplied) It appears that the employee cannot make a disposition of service invention before an employer could declare a claim. The disposition therefore made by Shabana to Keg, Ltd. was invalid. Hence, 10X can have the contract between Shabana and Keg Ltd. annulled or declared void. As to how the claim could be made by the employer, we have the following section from the German law” “§6. - Claiming a Service Invention (1)An employer may claim a service invention by means of an unlimited or a limited claim. (2) Such claim shall be made in a written statement, addressed to the employee. It shall be made as soon as possible, and no later than four months from the receipt of a proper report (Section 5(2) and (3)).” Therefore, 10X can choose to sue Shabana and Keg, Ltd. for annulment of the contract with damages or it could just sue Shabana for damages in addition to the recovery of the proceeds of the disposition of the invention. But we may ask, “Has not 10X lost its rights since it was already one year after employment that Shabana sold the inventions to Keg Ltd.? Has not the right of 10X prescribed? Case facts say that the only time that such an invention was known to 10X, is when the sales was made in May, the following year. Hence, it must not be deemed that 10X has slept in its rights by prescription. Therefore, based on the foregoing, 10X has still right to sue Shabana and Keg,Ltd. for annulment of contract with damages against Shabana only if Keg was in good faith or it could just sue Shabana to recovery the proceeds of the sale plus damages because of the fraud or violation of German invention law. [2] Advise Riswana on any legal rights she might have against 10X GMb in connection with the company’s rejection of her application. A denied application for employment confers no right to an applicant if there is no proof of discrimination on the part of the employer. This argument is based on the principle of freedom to enter into contracts. Every contract needs consent of the contracting parties for its perfection. It cannot be a one-way ticket where the applicant must decide whether she should be hired. This argument has also basis in common sense because an employer would be spending money for the employee should she gets hired. The qualification on possible violation of anti-discrimination laws is based on the fact that states normally provide in their constitutions or statutes anti-discriminatory provisions. In the case of Germany where 10X is supposed to be operating, we have to find some basis in its laws or in a treaty or agreement with other countries, if there is any. Germany is a member of the European Union (EU) and as such it is covered by the EU Anti-Discrimination Policy: From Equal Opportunities Between Women And Men To Combating Racism. The office of the Directorate-General for Research in EU, gives the following information on the said policy as follows: “2. Towards an anti-discrimination directive? Naturally, the EU faces numerous policy choices in the move towards the introduction of binding legislation. Inevitably though, the model which has been most frequently cited is the EU's pre-existing equal opportunities legislation, most notably the 1976 Equal Treatment Directive. The Kahn Commission called for action to enshrine in EU law the principle that "all individuals, regardless of their colour, race, nationality, ethnic or national origins or religion should have the right of equal access to employment, equal pay and fair treatment from an employer." (1) It suggested this could be achieved through directives with "the same potential effect as the existing Equal Pay and Equal Treatment Directives in terms of providing widely available remedies, including compensation, to the victims of discrimination that can be enforced in national courts throughout the Community." (2) The temptation to replicate the sexual equality legislation is understandable. Certainly, it is a most useful reference point in preparing further anti-discrimination legislation. However, what is required is a learning process, whereby the weaknesses inherent in the existing sexual equality legislation are not reproduced in a new anti-discrimination legislation. As a result, there must also be consideration of the range of alternative sources of inspiration, specifically relevant to combating racial discrimination. < http://www.europarl.eu.int/workingpapers/libe/102/text2_en.htm> (Emphasis supplied) On the basis of the above information, Riswana could only be discriminated on the following grounds: colour, race, nationality, ethnic or national origins or religion. Based on the facts given, there is no indication that Riswana’s rights are violated on the basis of her being an Australian. It could hardly be believed that 10X discriminated against Australian since it hired Shabana earlier. Assuming that 10X did decided not to hire Riswana because of the Shabana’ s mistreatment of 10X,which is not backed by evidence, the burden of proof should be on Riswana to prove the allegation of possible discrimination by 10X because of what happened in the case of Shabana. Such lack of good faith however, even if true is not one of grounds for violations of the EU law on anti-discrimination policy. Therefore, it is submitted that Riswana could not have a case against 10X. But one might ask: “Is there no treaty or agreement between Germany and Australia that should promote cooperation on employment between the two countries?” There is this Australia-Germany Partnership 2000 Action Plan which states: “This Action Plan stems from a meeting in Bonn in March 1995 between the German Chancellor and the Australian Prime Minister. A major theme of those discussions was the desirability of Germany and Australia strengthening their commercial links. It was noted that Germany, the third largest economy in the world, and Australia, the fourth largest economy in the East Asia region, should be engaged in a great deal more economic activity together. The German-Australian trade and investment relationship Cooperation in the field of professional training will from now on be promoted on the basis of the Memorandum of Understanding between the Australian Department of Education, Employment, Training and Youth Affairs and the German Ministry of Education, Science, Research and Technology on Cooperation in Education and Training, which was signed in November 1996 in Canberra on the occasion of a delegation visit from the German Ministry. This Memorandum furthers the development of programs and projects in the fields of professional training as well as in the continued education of training personnel. It includes cooperation in third countries. A further refinement of this Memorandum was carried out during a visit to Australia by a delegation of German professional training experts in November 1997.”< http://www.dfat.gov.au/geo/germany/p2000_english.htm>(Emphasis supplied) Based on the above, it will be asked: Will this action plan between the two countries cover the case of Riswana? Is the issue on the field of professional training for Riswana to benefit from the same? Assuming it is, may 10X be compelled to follow the same action although it may not be advantageous to its business? The answer to the question seems to lie on the nature of an action plan and its compelling power on its citizens. My answer to the question is that Riswana has still no right based on the principle of freedom to contract. In conclusion, Riswana may be fully qualified to the position, or she may have been hired in the field of professional training for which her country has an action plan, I respectfully submit that 10X cannot be compelled to hire Riswana and neither can it be accused of discrimination under the EU directive. On the other hand, it has a valid existing right on Shabana’s disposing a tied or service invention without its consent. Bibliography: 1. < http://www.investorwords.com/1775/European_Union.html> 2. < http://education.yahoo.com/reference/encyclopedia/entry?id=47814> 3. < http://www.lectlaw.com/def2/p146.htm> 4. < http://www.niehs.nih.gov/oeeo/disc-def.htm> 5. 6. Australia-Germany Partnership 2000 Action Planhttp://www.dfat.gov.au/geo/germany/p2000_english.htm 7. EU Anti-Discrimination Policy: FROM EQUAL OPPORTUNITIES BETWEEN WOMEN AND MEN TO COMBATING RACISM. < http://www.europarl.eu.int/workingpapers/libe/102/text2_en.htm> 8. The German Law on Inventions, sections 4 to 7. Read More