Teoria impreviziunii în domeniul invențiilor

• Published in: Dreptul (București) no. 3; pp. 49 - 77
• Main Author: Speriusi-Vlad, Alin
• Format: Journal Article
• Language: Romanian
• Published: Bucharest Union of Jurists of Romania 2020; Uniunea Juriștilor din România
• Subjects: Civil Law; Intellectual property; Patent law; Romania; preference right; compulsory license; unpredictability; invention of service; assignment; price; remuneration; conditions; preemption; patent law
• ISSN: 1018-0435

The unpredictability involves the intervention of the judge in a contractual legal relationship. Intellectual property can be considered a „laboratory” in which the intervention of the judge in the agreement of the parties has always been allowed. Without any connection with the unpredictability, in patent law there are legal mechanisms that allow the court to intervene to complete the contract regarding the quantum of the price in order to encourage the exploitation of the invention. In this hypothesis, the parties agree to contract, they do so, setting even the object of the contract, less the sale price. In other cases, the parties are obliged to contract by law, the court being required to intervene in the contractual mechanism established by law to determine the price. In Romania it cannot be argued that under the influence of the previous Civil Code the legislator has ruled on the non-application de plano of the unpredictability and that he would have been in favour of its application in certain special laws, such as the one from the field of intellectual property, because the reason for the judge’s intervention in the agreement of the parties is to favour the exploitation of intellectual creations, encouraging creativity. In the new Civil Code the conditions of the unpredictability are: 1. the existence of an excessive onerosity caused by an exceptional change (out of the ordinary, and not an ordinary one, simple or routine) and unforeseen (unpredictable), including as extension, of the circumstances existing at the conclusion of the contract. Excessive onerosity represents a contractual imbalance in relation to the initial contractual balance, which must exist as long as neither of the parties’ benefits can have a significantly higher value than the other, in the light of the regulation of the injury in the new Civil Code. The contractual imbalance, which must result in both excessive onerosity for the debtor, and a correlative gain for the creditor, requires the contract to be adapted by the Romanian judge by adjusting a contractual obligation to the correlative law of the co-contractor, and not the revision of the contract, to which only the French judge can proceed, simply changing the agreement of the parties. 2. change of the circumstances capable of leading to the adaptation of the contract to intervene after the conclusion of the contract. The condition, which has the legal value of a premise, is also fulfilled when in the content of the (apparently) immediate performance contracts enter continuous obligations capable of leading to a contractual imbalance, such as the obligation of non-competition in the case of a patent assignment. 3. the parties have not assumed, expressly or implicitly, the risk of changing the circumstances existing at the conclusion of the contract. Any assumption may concern certain individually determined risks, but not all risks, the debtor not being able to give up completely and in advance the possibility of invoking the unpredictability. In patent law, the emergence, development of new technologies or the existence of factual circumstances that „amplify” the use of the invention can lead to the adaptation of the contract or its termination in order to increase the remuneration of the one who has assigned his rights over the invention, falling under the hypothesis of unforeseen circumstances. On the other hand, the non-exploitation of the invention is due to the inability of the person who acquires the rights over the invention, not in the presence of an objective circumstance, but of a subjective one. If this inability has existed since the beginning of the contract, the person who assigns the rights to the invention can invoke the dolus, and if it subsequently occurs, he can request the termination of the contract on grounds of the resolution. At the same time, a fixed remuneration increases the probability of successfully invoking unpredictability in the field of patents, especially in the relationships between the employed inventor and the employer.