Protecting IP when hiring in the Netherlands

The inventor does, unless inventing that kind of thing is what they were employed to do. That is article 12(1) Rijksoctrooiwet 1995, and it is the opposite of the default a founder from an English-speaking country expects.

The provision says that where an invention for which a patent is sought is made by a person employed by another, the inventor is entitled to the patent, unless the nature of the employment entails that the employee applies their special knowledge to making inventions of the same kind as the one in question. In that case, and only in that case, the entitlement belongs to the employer.

So the test is not seniority, and it is not whether the work was done in working hours or on company equipment. It is the nature of the employment. A research engineer hired to invent in a given field is on one side of the line. A finance manager who solves a manufacturing problem at the weekend is on the other, and by default the patent is theirs.

The line is a question of fact about the job, which means it is decided by what the contract and the working reality say the person was engaged to do. An employer whose job descriptions are vague has made the test harder to win, and an employer that hires a specialist to work in a defined technical field and then says so in the contract has made it easier.

One thing this article does not settle, and it is the question most technology buyers actually have: copyright in employee-created work runs under a different Act and is outside the scope of this post. Do not assume the patent rule answers a software or design question. Take Dutch advice on that specifically before anybody signs.

Three further limbs, and one of them is the fix for everything in the first. Article 12(2) covers someone doing work in the context of training at another’s establishment: the entitlement goes to the establishment, unless the invention is unconnected with the subject of the work. Article 12(3) covers researchers employed by a university, a hogeschool or a research institution, where the entitlement goes to the institution.

Article 12(5) is the one that matters commercially. The parties may derogate from the rules in 12(1) to 12(3) by written agreement. Dutch law lets you contract for ownership of your employees’ inventions, and the mechanism is an express written assignment.

Which produces the practical conclusion for any technical Dutch hire: if the contract is silent, article 12(1) decides, and article 12(1) may well decide against the employer. A Dutch arbeidsovereenkomst for an engineering, research or product role should carry an express IP clause, written into the contract rather than referenced from a handbook, and drafted to say what kind of inventions it reaches.

That clause belongs with the rest of the written terms rather than in a separate document nobody signs. What a Dutch employment contract must contain sets out the written form requirements and the article 7:655 BW information duty that sit around it.

The money. Article 12(6) Rijksoctrooiwet 1995 gives the inventor a billijke vergoeding, a fair payment, where they cannot be regarded as compensated for the loss of the patent by their salary, by another allowance they receive, or by a special payment. The amount has regard to the financial importance of the invention and to the circumstances in which it was made.

And article 12(7) makes any clause that derogates from 12(6) void. Not voidable, not unenforceable in some circumstances: void.

There is a time limit on the inventor’s side: the claim lapses three years after the patent is granted. That is a real limit and it cuts the employer’s exposure, but it starts running from the grant rather than the invention, which for a long prosecution can be several years after the employee left.

The drafting point follows from the two rules together. Write the assignment under article 12(5), and deal with compensation openly rather than by trying to exclude it. A clause that says the salary is deemed to compensate the employee for all inventions is at best evidence and at worst the void clause in article 12(7).

Only in an indefinite contract, only in writing, and only with an employee of full age. Article 7:653(1) BW sets those conditions and they are absolute, not factors to be weighed.

So a concurrentiebeding agreed orally is invalid. One that lives only in a staff handbook is invalid. One agreed with a minor is invalid. And one in a fixed-term contract is invalid unless it meets an extra requirement of its own.

That extra requirement is article 7:653(2). A clause in a fixed-term arbeidsovereenkomst is valid only if the clause itself carries a written reasoning from the employer showing it is necessary because of compelling business or service interests, in Dutch zwaarwegende bedrijfs- of dienstbelangen. The statute’s own words tie the motivation to the clause, so it has to be in the clause, not in a covering letter and not in a recital at the front of the contract.

The indefinite-contract condition is worth pausing on, because it interacts with how most foreign employers start in the Netherlands. A first Dutch hire is very often on a fixed term. A restriction in that contract therefore needs its written justification from day one, and rewriting the contract later to add one does not repair the earlier period.

A generic paragraph about protecting the company will not do. The motivation has to be specific to the role and to why this person, in this job, needs restricting. Employers who use one template across fifty fixed-term contracts have fifty clauses with the same weakness.

A good deal, and it is the reason a Dutch non-compete is a starting position rather than a settled entitlement. Under article 7:653(3) BW the court may annul the clause entirely where a fixed-term clause is not in fact necessary on compelling business or service interests, and may annul it wholly or in part where, weighed against the employer’s interest, the employee is unfairly prejudiced by it.

Article 7:653(4) goes further. The employer cannot rely on the clause at all where the ending or the non-continuation of the contract is the result of seriously culpable acts or omissions by the employer. Get the exit wrong and the restriction goes with it, which links the clause directly to how the employment is brought to an end: ending a Dutch employment contract is its own procedure and its own risk.

Article 7:653(5) lets the court order the employer to pay compensation for the duration of the restriction where the clause significantly impedes the employee from working elsewhere, set by the court on the circumstances. Note carefully what that is and is not. As the law stands in September 2026 paying compensation is a discretionary judicial remedy, not a condition of validity. It is not payable where the ending resulted from the employee’s own seriously culpable conduct.

Taken together, these four provisions describe a clause that is enforceable but conditional at every stage. It has to be validly agreed, it has to be justified where the contract is fixed-term, it has to survive a proportionality test against the employee’s interest, and it has to have been kept alive by an employer that ended the relationship properly.

A separate clause governs outside work during employment rather than after it. The nevenwerkzaamhedenbeding falls under article 7:653a BW and is void unless it can be justified on an objective ground, and an employer may not disadvantage an employee for asserting that. Article 7:653a itself carries a further amendment taking effect on 1 January 2028.

A reform of the concurrentiebeding has been announced and it is not law. It is a cabinet proposal that has not been adopted, both chambers still have to decide, the proposal may still change, and the commencement date is not known.

As described by the government, the proposal would cap the duration at one year after the end of the arbeidsovereenkomst, require the employer to specify the geographic area in which the employee is restricted, extend the written justification requirement from fixed-term contracts to indefinite contracts as well, and make compensation compulsory when the employer invokes the clause. The proposed amount is 50% of the employee’s last monthly salary for each month the clause is in force, so a six-month restriction would cost three months of salary.

• Maximum duration of one year, as proposed
• The geographic area to be specified in the clause, as proposed
• Written justification extended to indefinite contracts, as proposed
• Payment compulsory on invoking the clause, as proposed
• None of it in force, and no commencement date

It would be the largest single change to Dutch employment contracts on the horizon, and it is worth planning for without drafting as though it had happened. A clause written today is governed by article 7:653 BW as it stands. A clause written today that would also survive the proposal is a clause with a stated area, a stated duration of a year or less and a specific justification, which is better drafting in any event.

The EOR becomes the legal employer of the person you hire, which means the IP clause and the concurrentiebeding sit in an arbeidsovereenkomst your business does not sign. That is a point to handle deliberately at the start rather than discover at the end.

Two things follow. The assignment under article 12(5) Rijksoctrooiwet 1995 has to run through to your business rather than stopping at the employing company, and that chain is set up in the contracts, not assumed. And the restrictive clauses have to be drafted for the role you are actually filling, with the written justification article 7:653(2) BW demands where the contract is fixed-term.

The commercial reading of all this is that Dutch IP protection is a drafting job rather than a jurisdiction risk. The statute allows an employer to hold what its people invent. It simply declines to hand it over by default, and it prices the transfer. Neither of those is a reason to hire somewhere else; both are reasons to read the contract.

The hire happens in the Netherlands with no company of yours registered there. Employer of Record Netherlands sets out how the arrangement works and what sits in the fee from €599 per employee per month, and the steps to hiring a Dutch employee covers the sequence from the offer to the first payroll run. Ask to see the contract template before you commit, and read the IP clause first.