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Can I Be Fired For Refusing To File a Patent? 617

Posted by kdawson
from the if-you-don't-cooperate-your-replacement-will dept.
An anonymous reader writes "I am a developer for a medium-sized private technology company getting ready for an IPO. My manager woke up one morning and decided to patent some stuff I did recently. The problem is, I'm strongly opposed to software patents, believing that they are stifling innovation and dragging the technology industry down (see all the frivolous lawsuits reported here on Slashdot!). Now, my concern is: what kind of consequences could I bring on myself for refusing to support the patent process? Has anybody been in a similar position and what was the outcome?"
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Can I Be Fired For Refusing To File a Patent?

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  • Well... (Score:5, Insightful)

    by fyngyrz (762201) * on Sunday August 17, 2008 @04:02AM (#24632817) Homepage Journal

    You can be fired for anything.

    The real question is, can you afford legal action to contest your firing, and do the state and federal laws, and your employment contract, support your actions? To answer those toughies, you need a good lawyer. Not slashdot.

    • Better approach (Score:5, Insightful)

      by EmbeddedJanitor (597831) on Sunday August 17, 2008 @04:15AM (#24632901)
      Find some prior art. It's generally quite simple beacause there really are few new ideas oth there.

      Tell boss the patent wont fly because of this prior art and you're saving the company $10k+

      • Re:Better approach (Score:5, Insightful)

        by beeblebrox (16781) on Sunday August 17, 2008 @04:52AM (#24633067)

        Find some prior art.

        and tell your boss, as well as the IP attorneys working on it within/for your company, in a paper-trail-setting medium like email, dressed up as a question of an inquisitive techno-geek wanting to satisfy his curiosity:

        "So, on this flux capacitor patent thing: What do you guys make of this Heisenberg compensator design I found at this URL here? I kind of derived my design from that, is that something that would go in the prior art list we talked about during the IP attorney meeting the other day?"

        Poison that well.

        • Re:Better approach (Score:4, Informative)

          by WindBourne (631190) on Sunday August 17, 2008 @05:14AM (#24633139) Journal
          If doing email, be sure to run it some of them through a timestamper and forwarder to a different address. You want not just a trial, but they could easily delete their email logs/emails. But if it went through a stamper then they will have to answer for it. In general, little guy has the edge.
          http://www.itconsult.co.uk/stamper.htm [itconsult.co.uk]
          • Re:Better approach (Score:5, Insightful)

            by rvw (755107) on Sunday August 17, 2008 @09:08AM (#24634035)

            Just BCC to a Gmail account. The addressees won't know, and you can't tamper with those mail properties I suppose. That should do as timestamp and backup.

            • by Anonymous Coward

              Just BCC to a Gmail account.

              1 months later google patents that idea...

              I Kid! I kid!

              • by multisync (218450) * on Sunday August 17, 2008 @03:01PM (#24636725) Journal

                1 months later google patents that idea...

                That's Funny/Insightful, but it also raises the point that forwarding confidential company emails to a "timestamper" or a Gmail account may be sufficient grounds to fire you. I don't know what the labour laws are in various places, but if you signed any kind of an employment agreement or an NDA or something, read it carefully before forwarding unencrypted, internal company docs anywhere. Even if you didn't, make sure that if something that could be construed as a "trade secret" or "proprietary information" surfaces out in the wild, it can not be traced back to you.

                Also, the more I think about it, the more I'm certain the parent was Insightful. Google does parse your email, and I wouldn't want to have to explain to my boss how Google managed to beat us on a patent for something we've spent a lot of resources on developing.

          • Re:Better approach (Score:5, Insightful)

            by JoeMerchant (803320) on Sunday August 17, 2008 @09:56AM (#24634299)

            In general, little guy has the edge.

            In what twisted reality are you living? In my reality, the little guy needs income, to wit: a job, without which he will, in the space of something like 6 months to a year (or two if he's rare and has savings), lose his home, means of transportation, and most likely his spouse and children. Furthering your divergence from the earthly plane is the fact that barristers, advocates, abogados, and douche-bag ambulance chasers on my planet all expect to be paid. Unless you have such a slam-dunk obvious case that one of these pillars of society will take it on contingency (which is expressly forbidden by the courts in many situations: consult your local douche-bag for details), where does this money come from - oh yes, the next mortgage payment, and what does the wife think of that, paying $300 per hour on a gamble against $1800 per month for a roof? Oh, and how long do cases typically require to come to trial?

            Meanwhile, on the other side, we have the employer, who likely either employs a legal department or, if they are relatively small, at least has one or more on retainer.

            With these starting conditions, I'd say that the little guy doesn't have much edge at all. Of course, if the little guy does get to see the inside of the courtroom before he's homeless, he does have all kinds of sympathy on his side - and that comprises a bit of an edge. Add to this the fact that little guys (with any brains) would only pursue cases in which they are far onto the righteous side, and I bet the little guy has a better than average win record, in the courtroom.

            Stampers are a nice idea, but use of one may in and of itself be grounds for dismissal under confidentiality agreements that employers commonly require the little guys to sign (transmission of confidential information, including internal communications, to a third party.)

            Hat tip to the virtuous attorneys out there, all nineteen of you worldwide, keep fighting the good fight!

            To the poster: consider polishing the resume' - this is sound advice at any time, but if you are having philosophical differences, it might be a good time to shop the market, get a realistic picture of your options, and then decide what to do based on that information. If there's nothing else out there for you, sit down, shut up, and file the patent - it's actually good for your resume no matter how you slice it, even if you eventually seek employment at an ideally minded firm, you can tell them that the reason you are leaving your current job is because they compelled you to file the patent and you didn't have any options at the time. If your options are strong, you can use that to leverage your current position - demand the patent not be filed, and a pay raise, and if they don't like it, exercise that option to move to a new job.

            • Re:Better approach (Score:4, Informative)

              by darkfire5252 (760516) on Sunday August 17, 2008 @11:35AM (#24635053)

              Stampers are a nice idea, but use of one may in and of itself be grounds for dismissal under confidentiality agreements that employers commonly require the little guys to sign (transmission of confidential information, including internal communications, to a third party.)

              Stampers are only as 'authentic' as a judge believes a third-party to be. There's an ironclad way to maintain confidentiality and to record the time and date of the communication. Send the e-mail, ask for a reply. When you get the reply (or after a few days, if they do not respond), print out the e-mail. Take the printout to a notary public and ask the notary to officially witness that you've been in possession of this document at this time and day.

            • Re: (Score:3, Insightful)

              by westlake (615356)
              Of course, if the little guy does get to see the inside of the courtroom before he's homeless, he does have all kinds of sympathy on his side - and that comprises a bit of an edge. Add to this the fact that little guys (with any brains) would only pursue cases in which they are far onto the righteous side, and I bet the little guy has a better than average win record, in the courtroom.
              .

              This is so wrong so on many levels.

              The trial lawyer will tell you that Hearts and Flowers doesn't play well to a judge

              -

        • Re:Better approach (Score:5, Insightful)

          by Hal_Porter (817932) on Sunday August 17, 2008 @07:12AM (#24633557)

          Find some prior art.

          and tell your boss, as well as the IP attorneys working on it within/for your company, in a paper-trail-setting medium like email, dressed up as a question of an inquisitive techno-geek wanting to satisfy his curiosity:

          "So, on this flux capacitor patent thing: What do you guys make of this Heisenberg compensator design I found at this URL here? I kind of derived my design from that, is that something that would go in the prior art list we talked about during the IP attorney meeting the other day?"

          Poison that well.

          Umm, really bad idea. They'll just fire him for 'stealing paperclips' or some such pretext in week's time.

          Result: Dishonourable discharge, i.e. fired + bad reference. No one respects a weasel.

          Another possibility is going to your boss and expressing your concerns. Bosses respect that shit, but they won't know what the hell he is talking about. There is a risk of a blazing row.

          Result: Honourable discharge, i.e. let go with a glowing reference (best case) dishonourable discharge (worst case).

          Better but still not good. And they'll just ask someone else to file the patent anyway.

          I'd take the patent and try to get them to offer to license free for non commercial use. Talk about laptops for African orphans or whatever your concern is. It's the best chance of not hosing your career. Plus there's the opportunity to have a serious talk with the boss, and they absolutely love that shit. And they can spin it as corporate social responsibility, laptops for photogenic smiling African orphans, file photos of which can be put on the website. Hell, offer to do that webpage too.

          Result: Your career is safe.

          • Re: (Score:3, Informative)

            by jbengt (874751)

            Result: Dishonourable discharge, i.e. fired + bad reference.

            Almost no companies anymore give a referal beyond "Yes, he worked here from date x to date y as an (engineer/manager/whatever)". They're advised by their lawyers to avoid disparagement or praise of former employees in order to avoid lawsuits from unemployed ex-employees or unsatisified employers.

        • Re:Better approach (Score:5, Insightful)

          by Anonymous Coward on Sunday August 17, 2008 @10:41AM (#24634617)

          Poison that well.

          You missed the point. The question is poised from the perspective that the submitter would like to keep his job.

          As an employer I can respect a someone standing up for what they think is matter of principle. I wouldn't fire him but I would consider his principles when deciding who works on what projects and who is moving up in the company.

          On the other hand, if I have an employee who clearly has become subversive, well, he might as well be working for my competition.

          And I don't need him to the file patent. I own the work considering it was developed while under my employ. The Patent Office isn't going to spend any time tracking him down to garner his opinions on the existence of prior art.

          Pinky, you don't have to participate in my plans for world domination to be an employee here. But don't expect me to employ you so you can try to thwart me.

      • Re:Better approach (Score:4, Interesting)

        by Z00L00K (682162) on Sunday August 17, 2008 @05:01AM (#24633103) Homepage

        File the prior art together with the patent application and make the application so bad that it's rejected.

        That should teach your boss.

        Or file the whole thing on slashdot as an AC. But let a friend write it so the writing style isn't matching your style.

        But maybe your boss was asked for possible patents from an investor. Venture capitalists usually looks for companies to invest in by measuring the patents they have. Which in the end doesn't say a thing about how well the company actually can fare. It may also be that your boss (if he owns the company) is under way of selling it and wants to get as much money out of it as possible, which may mean that you can get fired anyway for other reasons.

      • Re: (Score:3, Funny)

        So... can I be fired for finding prior art to a company's patent? ;)
        • Re: (Score:3, Interesting)

          by budgenator (254554)

          In some states you can be fired for anything except age, sex, race, regilon or national origin; It's probably safer for the employer to fire you for no reason than for a reason litigation wise.

      • Re:Better approach (Score:4, Insightful)

        by WalterGR (106787) on Sunday August 17, 2008 @05:51AM (#24633281) Homepage

        Tell boss the patent wont fly because of this prior art and you're saving the company $10k+

        Smart.

        If you find an existing patent that covers your company's product(s), and fail to license the patent from the patent-holder, your continuing infringement will constitute willful infringement. In which case the patent-holder is entitled to triple damages.

        As others have said, consult a lawyer, not slashdot. Seriously.

        P.S. Is the patent your boss wants for your company's only product or primary breadwinner? Because if so, and you find prior art, you will in effect force your company to license said prior art. In other words, you will force your company to buy into this system that you loathe.

        • Re: (Score:3, Insightful)

          by jessecurry (820286)
          prior art doesn't necessarily have to be patented. In fact, most often it is not patented, but is something that has been in use by many people and simply accepted as common technique.
          • Re:Better approach (Score:5, Insightful)

            by WalterGR (106787) on Sunday August 17, 2008 @08:13AM (#24633759) Homepage

            prior art doesn't necessarily have to be patented.

            Right. But if you're doing research on prior art and stumble upon an existing patent, you've immediately started willful infringement. Doing the research itself is risky.

            Of course, so is getting legal advice from slashdot.

            • Re:Better approach (Score:5, Informative)

              by mrchaotica (681592) * on Sunday August 17, 2008 @10:24AM (#24634497)

              But if you're doing research on prior art...

              You have to do that as part of the patent application process anyway!

              • Re: (Score:3, Informative)

                by WalterGR (106787)

                You have to do that as part of the patent application process anyway!

                If you're a lone gun with no money to pay lawyers, then sure. If you're at a company, as this guy is, and the company is smart, he doesn't do the research, the legal team does.

                Now, if the legal team discovers that their company is, in fact, infringing on an existing patent, but they don't tell anyone else within the company, I don't know what happens. (i.e. does the infringement begin to be considered willful?) That's why I would consul

              • by ameline (771895) <ian.ameline@gmailMOSCOW.com minus city> on Sunday August 17, 2008 @11:41AM (#24635097) Homepage Journal

                > You have to do that as part of the patent application process anyway!

                Actually, no, you don't. You have an obligation (and it continues right up until the patent issues) to disclose any relevant prior art you know of -- or, for that matter any information you know that could affect, in any way, the patent examiners decisions.

                But you are under no obligation to go *looking* for that information. That's the examiners job.

                Of course I'm not a lawyer, but that's what they tell me when I do file patents. (yes, I'm an evil software patenter -- there goes my karma)

                Your lawyer may say something different -- if you are filing a patent, I suggest you listen to him, and not me on this subject :-).

                Back to the original subject at hand -- if you do find prior art, it would save the company money by not patenting -- which does cost 10 to 20k per. And whether you send this notice by email or not, you can and should insist on meeting your obligations under law to disclose that prior art to the patent office when and if you file for a patent.

                • Re: (Score:3, Informative)

                  by nomadic (141991)
                  But you are under no obligation to go *looking* for that information. That's the examiners job.

                  I asked a patent lawyer friend of mine about this today, she said while there is no requirement to look for prior art, the court is allowed to hold it against you in a later infringement action.
          • Re: (Score:3, Interesting)

            by budgenator (254554)

            I believe that in the US the patent is awarded to the first to conceive rather than the first to file like in the EU. The result of this is a lone-wolf inventor can conceive and document, then wait years for a company like yours to receive a patent then yank the rug out from under you in court. Now you company is going to have to pay royalties on it's cash-cow.

        • Re: (Score:3, Insightful)

          Is the patent your boss wants for your company's only product or primary breadwinner?

          If the company you work for is dependent on new software patents and you are of an anti-software patent ideology, maybe you should look for a job with a company that makes a product that you want to produce. It's kinda like going to an anti-war protest on the weekend, and working in a munitions factory during the week. Who do you really support? Actions speak louder than words, get your money and your ideology in line.
      • Re: (Score:3, Insightful)

        by mysticgoat (582871)

        Find some prior art.

        Uh, no, that probably isn't a good idea. If you find prior art that someone else has patented, you've exposed the company to willful infringement, as other replies have pointed out. Linus Torvalds has said some interesting things along these lines but at the moment I can't think of an easy way to google up his quote (too little coffee on board as yet). In any event, the common wisdom is: don't go there. It is better not to know.

        A big question is how the company intends to use your work.

        If your work is o

    • by vladkrupin (44145) on Sunday August 17, 2008 @04:18AM (#24632923) Homepage

      which means that either you or the employer can terminate the relationship at any time with or without cause.

      which also probably means they can fire you and not face the consequences. It just won't be a "for cause" firing, but rather letting you go for some bogus reason.

      which, if you think about it, makes sense.

      The real question is -- what's more important to your employer (or, more precisely, your immediate manager)? You or your cooperation with whatever they ask?

    • by Senes (928228)
      It's your employer's call. It WILL offend them, and they WILL get even. Consider the bad economy before you put your career on the line to make a statement, and then consider what the patent is worth - unless you're claiming ownership of ones and zeroes then it likely won't hurt anyone too much to sacrifice yourself over.
      • Re: (Score:3, Informative)

        by Xiaran (836924)
        I think you are being a little melodramatic. I worked for a large R&D division of a large European telco whose business was patenting. I had a problem with software patents so I requested that my name was not attached to any of them. They had no problem with it. I felt I made my statement as far as I could without being annoyingly preachy. Did I do any good? Probably not much :)
    • Not really (Score:5, Insightful)

      by WindBourne (631190) on Sunday August 17, 2008 @05:08AM (#24633125) Journal
      First, it will depend on the state. But the simple fact is, that he developed those items FOR the company AND on company time. In just about EVERY STATE, if not ALL states, the company owns the patent (unless the author explicity excluded those BEFORE time of contract. As such, they are now asking him to submit THEIR idea to the PO. This is no different than if they ask you to take a pix of something, or back up something, or whatever. It is expected AND legal for the actions that they are asking him to do. As such, I would expect him to be fired for not doing the patents. Though that is NOT a very good idea in front of an IPO.

      The idea of getting a lawyer is the best advice that anyone can give.
      • Re: (Score:3, Informative)

        by Teancum (67324)

        Actually, you aren't quite correct.

        A patent isn't a state issue, but rather a federal one. Patents are filed with the U.S. Patent and Trademark Office, so it really is a federal law here where individual state laws really don't apply... at least in terms of patent ownership and such.

        Patents are filed in the name of an individual, and are issued to individuals, not corporations. This said, there may be a condition of employment that requires you to license these patents to your employer on an exclusive bas

    • Not exactly. A better question is 'what will having the patent change'? They're great on your resume, and there are plenty of reasons to want even frivolous patents. IBM, for example, has a huge library of patents that they use as defense against intellectual property lawsuits, and to demonstrate their expertise in hardware and software. Patenting the ideas in the software, and releasing it under GPLv3, would allow your company to protect its intellectual property in some fascinating ways.

      Software patents a

    • Re:Well... (Score:5, Informative)

      by dshaw858 (828072) on Sunday August 17, 2008 @05:21AM (#24633173) Homepage Journal
      Okay, as an "inventor" for a private firm, you probably signed an agreement stating that all of your work done at said company is owned by the company. I think, therefore, that it is out of your hands--if the company wants to file a patent, they can do so.

      Notice how Microsoft patents, for example, are owned by Microsoft Corporation, not by the individual coders who came up with whatever algorithm/mechanism/whatever the company is trying to patent.

      Therefore, I *think* that your boss is just requesting your help filing and managing whatever the software does (assuming he is not a techie and can't write out the algorithm/flow charts himself). If you refuse to help him, he could still get a patent, and probably fire you, too...

      HOWEVER! I am not a lawyer, and this sounds like something that should be verified by one. I would recommend talking to a patent attorney as well.

      Hope that helps!
      • Re:Well... (Score:4, Interesting)

        by pdh11 (227974) on Sunday August 17, 2008 @07:36AM (#24633639) Homepage

        Notice how Microsoft patents, for example, are owned by Microsoft Corporation, not by the individual coders who came up with whatever algorithm/mechanism/whatever the company is trying to patent.

        They're owned by Microsoft, but (AFAIK) the original inventor is still listed by name. When I was in this situation, that was the part that most rankled: that it was 100% the company's idea to file a patent for this stupidly broad and obvious idea, but that my own name would end up on the paperwork. So if this is the case for you too, perhaps you could try and persuade your boss, or someone else, that the conversations you had with them while developing the idea actually mean that they are the real inventor, and should have their name on the patent instead of yours.

        FWIW the eventual outcome in my case was that the (UK) patent office rejected the patent, citing as prior art something so left-field that connecting it to the patent application seemed to me much more of an intellectual leap, than coming up with the idea we were trying to patent in the first place. Or, in other words, the company spend thousands of pounds on absolutely nothing and learned not to do that again. Which is a good outcome.

        Peter

  • Firing (Score:4, Informative)

    by Boronx (228853) <evonreis@mohr-enginee r i ng.com> on Sunday August 17, 2008 @04:07AM (#24632845) Homepage Journal

    IANAL, but I'm pretty sure there's only a small set of things you can't be fired for in the US, like race, and anything else is legal. There's probably no law protecting your right not to file patents.

  • Play the game (Score:2, Interesting)

    by nicc777 (614519)
    Maybe you can just copy and paste some wording of another "similar" patent and wait that the system rejects the patent...
  • by LightPhoenix7 (1070028) on Sunday August 17, 2008 @04:08AM (#24632855)
    Your job is to do development for a company - they pay you for this. Thus, your feelings on whether patents are broken or not is irrelevent. Anything that you've written for the company while being paid by the company belongs to the company, and if they choose to patent it that is their right. You don't own it, you have no say. Consequently, when you tell your boss you won't do what you are being told, despite the fact that ethically you may have a point, you don't actually have a leg to stand on. So will you get fired? Who knows, we don't know your boss. Would your boss be in the right to repremand you? Absolutely.
    • by cp.tar (871488)

      While you are right, I do wonder whether it is his job to file patents. Maybe someone from the legal department would be better suited for the task?

      • It does not matter. I would imagine that a patent application requires some technical specialist to contribute as well (since you do need to have the technical description of the process).
    • by Anonymous Coward

      You do face a possibility of being fired for refusing to go along with their demands. As others have mentioned, you can be fired for damn near anything -- even if you don't live in a "right to work^H^H^H^Hbe fired" state, they can still make up a reason and fire you.

      They are looking to you to provide them with the basis for their IP (imaginary property) when they file their patent -- so you may want to make sure the patent is as indefensible as possible. Throw in lots of obvious prior art, don't explicitl

    • by Confused (34234) on Sunday August 17, 2008 @04:43AM (#24633031) Homepage

      The previous poster is right, mostly. If your employer feels your wonderful software needs to be patented, you have to do it. No way around it.

      On the other hand, you should strive to do your work as well as possible and support your employer whole-heartly and stay inside the law. Take it as an opportunity to learn more about the patent process. Try to provide good data for the patent.

      First is the matter of previous art. Take your time and research it properly - no vague: Doh, someone must have done it before it isn't rocket science. Document your findings and keep the documentation and send it to the responsible people for filing the patent in a provable manner.

      The other part is the obviousness, but that may be harder to document that management understands. You may get away with documenting that your things are just standard techniques any decent CS-major or developer knows about and uses daily.

      Legal people really hate it, when they can't deny knowing about holes in their patent. And if you did your work properly, the patent shouldn't have many legs to stand on, should they go ahead.

      • by Z00L00K (682162) on Sunday August 17, 2008 @05:09AM (#24633133) Homepage

        Legal people really hate it, when they can't deny knowing about holes in their patent. And if you did your work properly, the patent shouldn't have many legs to stand on, should they go ahead.

        One problem is that if you file your part of the patent claim to the legal people and then they file the patent they may chose to cut out parts of prior art that you have written just to ensure that it will get through the patent system. That's one reason for hiring a patent lawyer - make the application as general as possible to allow for the best and broadest hit. The patent office won't be able to search fully for prior art because they don't have the knowledge you have about the thing patented.

        Yes - I have an evil mood today...

    • Re: (Score:2, Interesting)

      by aysa (452184)

      Consequently, when you tell your boss you won't do what you are being told, despite the fact that ethically you may have a point, you don't actually have a leg to stand on.

      If may boss tells me to start cleaning the toilettes be sure I can reject that standing on two legs. This is not black and white.

      • by weicco (645927) on Sunday August 17, 2008 @06:42AM (#24633445)

        That's totally wrong analogy. Let's take my favorite subject, me, for example.

        To do development and participate in other functions around development, like patenting stuff, is what I am paid for. I signed a contract that says so, so I must obey it or I get my ass fired and beaten in the court.

        Now allthough my contract says that I'm supposed to do "other duties assigned by the employer" those "other duties" must relate to my actual work function somehow. Cleaning toilets is totally out of the question but like changing ink cartridges to the printer could be considered as "other duties".

    • by ScrewMaster (602015) on Sunday August 17, 2008 @05:32AM (#24633215)
      If he refuses to help on the patent application after being instructed to do so, he's being insubordinate. That's grounds for immediate dismissal at most places I've worked. His personal feelings aside (and I agree with him that software patents were and are a bad idea) the reality is that the code in question is not his property. He should just deal with it, and if it really bothers him that much seek a position elsewhere.
  • by illama (1275186) on Sunday August 17, 2008 @04:08AM (#24632857)
    Just patent the process of firing someone for refusing to file a patent.

    Then they'll have to license the technology to be able to use it against you.

    Frivolous patents are evil.
    • by bobdotorg (598873)

      Just patent the process of firing someone for refusing to file a patent.

      Then they'll have to license the technology to be able to use it against you.

      Well hell, don't be half assed about it. Finish the job and also file a patent for not firing someone for refusing to file a patent.
      ???
      Profit.

    • The sad thing is, with the current state of the patent industry, such a patent might actually be granted.

    • Is this NOT prior art that prevents it from being filed? i.e the company could simply pull this up and declare it prior art and it is all over.
  • by Cherveny (647444) on Sunday August 17, 2008 @04:11AM (#24632875) Homepage
    In many states, you can be let go at any time for any reason. It really comes down to what you value more, your principals or your job. Of course, if you are a valued employee, and if you are coming up with patentable ideas, I'd assume you are, how you broach the subject may help influence how stable your job is. Instead of first saying "I refuse," instead consider, "I object," followed by your reasoning. If they then push the issue past your objections, you can always move on to "I refuse."
  • I suppose that, overall, it could be deemed insubordination to refuse, and you could end up out on your ass. It all depends on the company's overall handling of employees, and how willing they are to get rid of outside-the-box-thinkers.

    You also need to look at any sort of contract/agreement that you'd signed pursuant to your employment; essentially, if such an agreement says that the company owns any work you do for them, which one would assume they would insert such a clause to prevent you jumping ship
  • Of course (Score:5, Insightful)

    by tsotha (720379) on Sunday August 17, 2008 @04:12AM (#24632887)

    When you get paid to do a job what you produce isn't yours. Of course you can be fired for this - and what difference does it make whether you file the patent or someone else does? If you feel really strongly about it you can hold firm, but realize if they can you there's nothing you can do.

    On the other hand, if you really want to screw him you can search the patent databases and find one that's similar. Then tell your boss. Knowingly violating a patent is treble damages, which is why they tell you never to look. They'll probably fire you for that too, but that should severely complicate their foray into patentland.

  • You may need to read your employment agreement.. if there is anything in there about the company owning the rights to your work while employed there, then you don't have much recourse because they can just file it without your permission anyway as "something our team developed."

  • by twitchkat (566638) on Sunday August 17, 2008 @04:14AM (#24632895) Homepage

    Does the phrase "at will employment" ring a bell?

    Choose your battles in business wisely -- making a philosophical stand could have a heavy financial impact on you.

    You may not "get fired" over taking a stand -- but it would probably put you in the "not a team player" camp.

    Career-wise, that may be even worse (financially) than being fired. If your Company is planning an IPO, they probably have a substantial legal department... And enemies in Legal (the same people usually championing the patent process) are the worse kind of enemies to have. You may start getting the cold shoulder at review time, bonus time, and option-allotment time... Legal, unfortunately, isn't quiet when they have gripes -- and they usually have the means to pull strings like that!

  • by coolgeek (140561) on Sunday August 17, 2008 @04:15AM (#24632903) Homepage

    You'll be fired, and they'll file the patent anyway.

  • by QuantumG (50515) * <qg@biodome.org> on Sunday August 17, 2008 @04:15AM (#24632907) Homepage Journal

    A better question is: am I valuable enough to the company that threatening to quit if they patent my work likely to be of any concern to them? If the answer is no, you make your own decision about what is more important to you, your job or your ethics.

  • Why fight? (Score:2, Insightful)

    by Anonymous Coward

    Why not try to convince him instead of trying to fight him? Fighting will probably result in the patent being filed anyway - he does not need your consent for it (at least not in my part of the world) - and maybe in you being fired.

    • Re:Why fight? (Score:4, Insightful)

      by thegrassyknowl (762218) on Sunday August 17, 2008 @04:28AM (#24632971)

      The do need to list the inventors by name, even if the patent belongs to a company. IIRC they do need to list your name on the patent, and that requires your consent/signature.

      I agree with trying to convince the boss to see reason. You'll likely not succeed though.

      It sounds like the usual bunch of suits trying to fluff up the value of their company with things that have little meaning and that they know very little about (patents pending that may or may not rejected later) before they flog it off and get rich.

  • Easy fix (Score:5, Interesting)

    by Hektor_Troy (262592) on Sunday August 17, 2008 @04:21AM (#24632943)

    There's a very easy fix for this.

    Make an anonymous posting somewhere, describing the innovation you came up with. If it has been disseminated before, it cannot be patented.

    This is a fairly common process with companies that either cannot afford to patent or don't want to. They put in a 1 page add in some random magazine (Sheep Shearer Magazine, New Zealand) describing the invention and order a copy of the magazine. Then when someone else comes along and threatens a lawsuit because they patented the process, they simply show the magazine again and Bob's your uncle.

    Maybe Slashdot could make an "invention" section for just this kind of stuff.

    • Re:Easy fix (Score:5, Informative)

      by thegrassyknowl (762218) on Sunday August 17, 2008 @04:32AM (#24632991)

      Make an anonymous posting somewhere, describing the innovation you came up with. If it has been disseminated before, it cannot be patented.

      The problem with doing that is if the invention is not obvious and has paved the way for considerable financial gain then the company can probably trace it back to you through court orders for information; regardless of how anonymous you thought you were at the time.

      It _IS_ a breach of your contract to release trade secrets outside of the company you work for. It's a pretty much standard clause in every employment contract. If it is traced back to you there could be loss of job, litigation, and possibly criminal charges depending on the severity that your company puts on the matter.

  • by Draconix (653959) on Sunday August 17, 2008 @04:23AM (#24632949)

    If you are against software patents, the best thing you can do is get your own patents in the current state of things. Then you can choose to not enforce them, while having strong grounds to prevent anyone else from patenting it and suing you despite your work being prior art. (It can and does happen.)

  • by galimore (461274) on Sunday August 17, 2008 @04:24AM (#24632953)

    I think a better question is... is your opposition to patents so strong that you would be willing to stand up and lose your job for it?

    I've been in a situation that forced me to stand up for what I believe in and was fired for it. I'd do it again in a heartbeat, because I wouldn't be able to work at a place that compromised my value system...

    So is the question really whether they're able to fire you for not doing it?

    How strong are your convictions, really?

  • by CeruleanDragon (101334) on Sunday August 17, 2008 @04:26AM (#24632959) Homepage

    Your boss may not be wrong for patenting your work.

    If your work contributed to or is a piece of code or software that your company relies on for revenue, what happens if he doesn't patent it? Someone else does. And then turns and sues your company for using "their" code. It's not hard to see where that leads. Company going under, you and your boss getting fired, etc, etc.?

    I don't like it any more than the next Slashdotter, but it's not hard to picture that exact scenario.

    You may have to just grin and bear it.

    • by Znork (31774) on Sunday August 17, 2008 @04:46AM (#24633045)

      what happens if he doesn't patent it? Someone else does.

      Not if the relevant (possibly) patentable materials are already published. Write an article about whatever it is in a trade rag and it will become unpatentable.

      Of course, in the gridlock crap system we have, someone else could patent a natural evolution of the subject matter, in which case having a patent to stop them from improving your thing might be useful.

      You may have to just grin and bear it.

      Or just, which is your duty, carefully disclose every single piece of prior art or similar idea you have read about. Which would strengthen the patent if it actually is issued, but more likely just make it obvious that whatever it is is utterly obvious to anyone actually trying to solve the particular problem.

  • by untaken_name (660789) on Sunday August 17, 2008 @04:27AM (#24632967) Homepage

    "Hey Slashdot, look how cool and ethical I am! I have problems with how my company is doing something and I want to "ask" about it even though all of the relevant options are obvious! This is so everyone will know how awesome I am because I don't believe in patents!"

    I mean, cool or whatever, but did you really think you were going to get any other answer than, "What's worth more, your job, or your beliefs about software patents?"

    Surely anyone intelligent enough to HAVE this dilemma should be able to map out the various options and likely outcomes. At least, just as well as anyone on slashdot can.

  • by Anonymous Coward on Sunday August 17, 2008 @04:34AM (#24633007)

    Basically I did something I thought was obvious, and the company wanted to patent it (which required me to sign a patent application). I said I wasn't willing to sign something asserting that the invention was non-obvious. Surprisingly, the lawyer was ok with this objection (maybe he'd heard it before). He pointed out that the patent application doesn't itself assert non-obviousness anywhere, it only requires me to state that I did the work (which was true). Non-obviousness is determined by the examiners. If their assessment differs from mine, that's not my fault.

    I too am opposed to software patents and wish they would go away, but a situation where the stuff I work on doesn't get patented, but others patent stuff to use against me, is unilateral disarmanent, which is just stupid. I went ahead and signed the application and the patent issued a while later, adding one to the tens of thousands of other stupid and basically useless patents out there. That's not such a great situation, but I figure I signed up for it when I agreed to work for a non-free software startup to begin with. I similarly am opposed to excess carbon emissions but still drive my car more than I really have to.

    The startup I worked at eventually failed, so now I write free software for a living. It doesn't pay as well but I like it better in other regards.

    Anyway, my advice is sign the paper--if you didn't want to do that then you shouldn't have taken the money. Think of it as injecting one more piece of patent pollution into the software atmosphere. Hopefully there will be a mass invalidation of those patents sometime. Meanwhile, if you don't want to contribute to its worsening, consider that you're not working at the right place.

  • You have to pick your battles, not every fight is worth the cost. If I would be in your shoes I would quickly embrace your boss on seeing the wiseness of patenting the stuff you did, you both should hype it to the senior management and in the same turn negotiate with you having pre-IPO shares of the company. If all goes well your net worth will increase and in the best case scenario you get promotion and increase in your pay. With the added money you can either contribute it to political candidates and foun
  • Filing is step 1 (Score:5, Interesting)

    by xquark (649804) on Sunday August 17, 2008 @04:41AM (#24633025) Homepage

    Filing for a patent does not mean you have a patent, it could take years of iterations etc to get a definite patent on something and even then people may still contest it. My suggestion is that if you're inclined to stick to your morals (which btw I don't totally agree with) , to go with the flow but sort of keep the filing so general and vague that any monkey could come along and contest it. At the end of the day you're not a patent lawyer, you can't be accused of not doing your job properly.

    Also don't bite the hand that pays your salary.

  • First Q: If you're so dead set against your company patenting your software IP, did you negotiate (eg, by crossing-out lines of your contract that apply to it) by way of -precluding- your unwilling involvement and/or conflicts that might arise over your tenure with this organisation?

    If not, I don't like your chances.

    2nd Q: How committed are you to your position?

    If your employer asks you to choose between your job & your position on Software Patents, are you prepared to forfeit your job?

    (Of course, even

  • You're confused (Score:2, Insightful)

    by eggstasy (458692)

    There's a place where you follow strict orders and shut the fuck up. It's called your job.
    There's another place where you can fight for ideologies, it's called a trade association.
    You can both be a good worker and a good activist, if you know your place and timing :)

  • The better way is... (Score:3, Interesting)

    by wellingj (1030460) on Sunday August 17, 2008 @04:57AM (#24633091)
    Trade Secret [wikipedia.org]. It gives you all the same protections of a patent and has no limit on enforceable timespan, but disregards people who develop similar things of their own accord. It doesn't prevent reverse engineering however, but that's seldom needed for software. By the time someone can reverse engineer a software product, it's of little use anyways.

    AFAIK, at John Deere my boss has patented mechanical things, and we have made Trade Secrets out of software.
    • by wellingj (1030460)
      I forgot to mention that Trade Secrets are also Patent Protection as Prior Art if the Secret in question pre-dates the Patent.
  • ... off the record. Tell him your stance on patents, and if he wants to go ahead with it, go along with it. Or quit. Those are your choices.
  • You were told to do something by a manager and didn't do it. I think you will get a warning and next time you will get fired.

    Whatever your beliefs, you have to do things at work when you are told to or find another job.

    Software patents may stifle innovation and competition, but if you work for the company that has all the patents then surely your job is safer?

  • If you don't chase after people who infringe on your patents, that's your prerogative. Why you would go ahead and let people get rich off your life's work while you get nothing from it, however, is beyond me. Let people use your work if you want, but the patent process allows you a way to screen who exactly gets to use it, and what they get to use it for. At least this way nobody'll be building a death ray based on your ideas.
  • And yeah, you definitely can be fired for it.
    By all means, talk to your boss and outline your concerns.. but if push comes to shove, and your boss demands that you do it, and you outright refuse, you may very well be looking for a new job.

  • by wrmrxxx (696969) on Sunday August 17, 2008 @05:25AM (#24633191)

    That's not a question anyone here can answer with just the information you have provided. It depends on your contract, and probably also on laws in your jurisdiction.

    If you're likely to get fired for not supporting your boss' patent application, maybe you should consider helping with the patent application then leaving the company on your own terms. Having a patent on your resume might help you move in to a better class of job where your concerns will be respected more.

  • File? (Score:3, Interesting)

    by Chysn (898420) on Sunday August 17, 2008 @09:37AM (#24634179)

    The question title is "Can I be fired for refusing to file a patent?" But that's not really the question, is it? You're a developer, not a patent filer. If you were a patent filer, then patent filing would be your job, and the question would become "Can I be fired for refusing to do my job?"

    But patent filing isn't what you do. You're asking if you can be fired for refusing to support the patent process. In your position, this might entirely amount to telling your boss, "I don't support the patent process." She'll listen to your words, weigh them carefully, then proceed with the process, with or without you. You probably won't be fired for that, unless the corporate culture is really awful.

    Now, if you're asking if you can be fired for actively disrupting the process and doing behind-the-scenes cloak-and-daggery things to make it fail, then yes, unequivocally, you can get fired. And maybe even wind up in jail.

  • Principles First (Score:4, Insightful)

    by Bob9113 (14996) on Sunday August 17, 2008 @12:34PM (#24635471) Homepage

    I was in a situation like this recently, where my principles potentially conflicted with a project my company wanted to do. I had a relatively open schedule and I had mentioned I had an interest in the general technology that would be used. And so the project was first offered to me. I had to explain to my boss that I was not sure that I was comfortable with it. He wanted me to explain myself, and we discussed it at some length. He made a moderate attempt to change my perspective, but ultimately respected the fact that there are some matters on which my principles are not in line with his. And he respected my decision and passed the project on to another developer.

    That is the way it should be. We as a nation (assuming you are in the US, and this may be true elsewhere) do a poor job of placing principles ahead of profit. It is unhealthy for the economy, I believe, because it leads to shoddy products and consumer hostile practices. It is detrimental to employee morale, which I think is a significant underlying component of the general malaise and lack of consumer confidence. Being pressured to compromise one's principles makes it harder for one to trust others (politicians, corporations, whatever), because we see that principles are under attack. Finally, seeing others compromise their principles leads one to feel that his or her principles should be subject to compromise. These last two pieces lead to our general lackadaisical approach to enforcing the law when it comes to people in positions of power (again, politicians, corporations, etc.).

    Principles matter. If you cannot be true to yourself, everything else pales. That does not mean that you must actively block the behavior you question, but it does mean you have to decide if this issue is a principle for you. If it is, you should not participate in the infraction of that principle. Respectfully, and with an appropriate apology (not for having principles, but for the fact that your principles do not allow you to participate), but refuse you must. This nation grew strong because the founders decided to stand on principle. And it is growing weak because so many are being corrupted by greed. Our economic system was founded on the principle of creating economic wealth rather than harvesting financial wealth, and it blew the doors off all competitors because of that principle. And it is faltering now because the harvesting of financial wealth is leading us to sacrifice the creation of economic wealth. The first step in ending this corruption is to be not corrupted. The decision each person must make is whether there are lines that cannot be crossed. Those who have those lines are men of honor. Those who do not are sociopaths or cowards, but not men of honor. You may be fired and you may face criticism, but that is a small sacrifice to make to be able to call yourself - knowing that it holds rare truth when you say it - a man of honor, a patriot, and a capitalist.

"When the going gets weird, the weird turn pro..." -- Hunter S. Thompson

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