IP and inventions with Brazilian staff: who ends up owning the work

Under the reading most Brazilian lawyers give, an invention that results from the work the employee was hired to do belongs to the employer. The source usually cited is the Industrial Property Law, Lei 9.279/1996, art. 88. Our 2026 review did not re-check that article, so use the rule as a starting point for advice from a Brazilian lawyer, not as a clause you can copy.

The word that matters in that rule is employer. Hire through Employer of Record Brazil and the CLT employer is the employer of record; your company is the EOR’s client. Any statutory rule that gives ownership to the employer therefore points first at the employer of record, and your rights depend on the contract chain that passes them on to you. Our explainer on how an employer of record works for Brazil hires explains how responsibilities divide between the employer of record and your company.

That chain has two links. The employment contract, signed by the employer of record and the employee, should say that work product and inventions made in the course of the job belong to the employer. The services agreement between you and the employer of record should then assign everything the EOR acquires from your assigned employees to your company, promptly and without extra charge.

Check both links before the first line of code or the first design is produced. Fixing an ownership gap after a product has shipped is far harder, and it depends on the goodwill of people who may have left.

The commonly described position is that an invention made outside the contracted duties, but with the employer’s resources, data or equipment, is owned jointly by employer and employee (Lei 9.279/1996, art. 91). This point is flagged as not re-read for 2026, and the practical consequences of joint ownership, including any compensation to the employee, should be confirmed with counsel.

The grey zone is wider than it sounds. A backend developer who builds a data tool in a weekend, on a company laptop, using ideas from a customer problem, sits somewhere between the two rules. A support specialist who designs a patentable device unrelated to the job may be further away still.

Three habits make the grey zone smaller:

• Describe the duties broadly enough in the contract to cover the kind of work you expect, including research and tooling.
• Run a simple disclosure process, so employees report potential inventions to the employer of record and to you as they arise.
• Record which equipment and systems belong to the company, which also helps when a remote employee leaves.

For roles with real invention potential, such as hardware engineering or applied research, ask the employer of record whether its standard contract has an invention clause and have your own lawyer read it before the offer goes out.

Software developed during the employment is generally described as the employer’s property, save for a contrary agreement between the parties, under the Software Law, Lei 9.609/1998, art. 4. As with the industrial property rules, we list this as not re-read for 2026 and recommend confirming the current text with a Brazilian lawyer.

For most technology companies, this is the rule that matters most. Code, scripts, internal tools, infrastructure templates and documentation are produced every day, and nobody files a patent for them. Ownership rests on the employment relationship and the contract wording, and the same two-link chain applies: employee to employer of record in the CLT contract, employer of record to you in the services agreement.

Open-source contributions are worth a policy of their own. If your engineers contribute to public repositories, say which licences are approved, whether personal projects on company time are allowed, and who signs contributor licence agreements. A short written policy, acknowledged by the employee, avoids arguments about whether a side project was company work. Write it in Portuguese and keep it with the contract.

Repository access is part of the same picture. Code should live in systems your company controls, with the employee using company accounts. When the employment ends, access is removed on the last day, and the employer of record’s offboarding checklist should include confirmation that company code and credentials have been returned.

There is no statute setting the rules for post-employment non-competes in Brazil. Labour courts have generally accepted them only when they are limited in time, commonly up to two years, limited in scope and territory, and paid for. That is a case-law position, not a written rule, so the strength of any clause depends on how a court reads it.

The payment element is the one foreign employers most often miss. A restriction that stops a former employee from working in their field without any compensation is at serious risk of being set aside. Budget for the payment when you decide to use a non-compete, and ask whether the risk you are protecting against justifies it. Because the employer of record is the employer, the payment would run through its payroll, so agree the amount and timing with the EOR in advance and reflect it in your cost forecast for the leaver.

For many roles, confidentiality and non-solicitation clauses give most of the protection with less friction. A clause that forbids use of confidential information, and another that restricts approaching clients or colleagues for a defined period, can be drafted narrowly and fit the case-law pattern more comfortably.

Labour claims can be filed within two years of the contract ending and may reach back five years, under art. 7º, XXIX of the Constitution. A poorly drafted restriction that the employee challenges can reopen other points in the same claim, so keep the clause proportionate and in Portuguese. The other clauses to settle at the offer stage are listed in our CLT contracts and probation guide.

It changes the legal basis, and it adds a different risk. The ownership rules for employees attach to the employment relationship; for a contractor who invoices through a company of their own, a pessoa jurídica or PJ, ownership rests on the assignment wording in the commercial contract. Companies that begin with PJ contractors sometimes find later that this wording was thin.

The bigger issue is status. Employee status under CLT art. 3 turns on four elements: personal service, regularity, direction by the employer and pay, and acts designed to avoid the CLT are void (art. 9). A contractor who works full-time on your product, under your managers, looks like an employee whatever the contract says. The practice of hiring people through their own companies, pejotização, is under review by the Supreme Court in Tema 1389, with the merits undecided as at 25 September 2026.

Converting a departing employee into a contractor raises a specific trap. An 18-month quarantine applies here: a dismissed employee may not come back to serve the same business through a service-provider company before that period ends (the quarantine rule in Lei 6.019/1974, found at articles 5-C and 5-D).

The legal tests are covered in more depth in our piece on PJ versus CLT misclassification. For long-term product work, a CLT hire through an employer of record is usually the cleaner route for ownership as well as status.

The services agreement between your company and the employer of record is the document that turns the employer’s rights into your rights, so it deserves as much attention as the employment contract. Read its IP clause before you sign, not when the first product ships.

Four points are worth checking. The assignment should cover everything the employer of record acquires from the employees assigned to you, including inventions, software, designs and written material, and it should take effect automatically as the work is created, without a separate transfer each time. It should not depend on your invoices being paid up to date, because a billing dispute should never put ownership of your product in doubt. The employer of record should agree to sign any further documents needed to register or enforce rights. And the clause should survive the end of the agreement.

The last point matters if you open a Brazilian company of your own later and move the team across. Rights already assigned stay with you, but the employees will sign new contracts with your new entity, and those contracts need their own ownership terms from day one.

Employees sometimes arrive with their own earlier work: a personal library, a design portfolio, a side project. Ask them to list anything they want to keep outside the ownership clause at the offer stage. A short, dated list protects the employee and stops disagreements about whether old code quietly became company code.

A sound IP position for a Brazilian team rests on a small number of written terms, reviewed by a Brazilian lawyer and signed before work starts. Ask the employer of record to confirm each of these is covered, and ask for the services agreement wording that passes rights to you.

• Ownership of inventions, software and other work product created in the course of the job, stated in Portuguese.
• An obligation to disclose potential inventions promptly.
• Confidentiality during and after employment, with a clear definition of confidential information.
• Return of equipment, documents and credentials on exit.
• Any non-compete, limited in time, scope and territory, with the compensation stated.
• Assignment from the employer of record to your company of all rights it acquires from the employee.

Data protection belongs alongside these terms. Brazil’s LGPD (Lei 13.709/2018), overseen by the ANPD, is generally understood to apply to employee data; this article does not re-examine its text. Where employees handle customer data, confidentiality and data protection obligations should point in the same direction.

Keep the signed documents together, with the date of each. If ownership is ever questioned, a clean file showing when the employee accepted the terms is the first thing a lawyer will ask for.