Can I Be Fired For Refusing To File a Patent? 617
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?"
Well... (Score:5, Insightful)
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.
Obligation to Company (Score:5, Insightful)
Of course (Score:5, Insightful)
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.
Better approach (Score:5, Insightful)
Tell boss the patent wont fly because of this prior art and you're saving the company $10k+
Think it through... (Score:5, Insightful)
You'll be fired, and they'll file the patent anyway.
You're asking the wrong question (Score:5, Insightful)
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)
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.
Chances are... you have "at will" employment (Score:5, Insightful)
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?
As much as it pains me to say this... (Score:5, Insightful)
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.
The rough draft of the summary: (Score:5, Insightful)
"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.
Re:Why fight? (Score:4, Insightful)
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.
Re:Play the game (Score:1, Insightful)
Maybe you can just copy and paste some wording of another "similar" patent and wait that the system rejects the patent...
I wouldn't.
This is the USPTO we are talking about. I wouldn't give them too much credit if I was you.
Best bet, take ten minutes on google and find some prior art, point your boss at it and explain why a patent claim would be a waste of time and money.
If you have to break out the big guns, hint that while the USPTO might be stupid enough to pass it, the first time you tried it in court any lawyer smart enough to tie his own shoes would rip it to pieces.
Black and white: yes (Score:2, Insightful)
Re:Obligation to Company (Score:5, Insightful)
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.
Re:Patents are not automatically enforced. Patent (Score:1, Insightful)
He wouldn't own the patent, his company would, and he would have no say in whether to enforce it or not.
Re:Patents are not automatically enforced. Patent (Score:3, Insightful)
The best thing is to publish it. If you patent it even without intending to enforce it, the patent can still be acquired later by someone who will. In fact, that's exactly what happened with the lzw/gif patent.
Re:As much as it pains me to say this... (Score:4, Insightful)
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.
You're confused (Score:2, Insightful)
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
Re:Better approach (Score:5, Insightful)
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.
Not really (Score:5, Insightful)
The idea of getting a lawyer is the best advice that anyone can give.
Re:Obligation to Company (Score:5, Insightful)
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...
Check your contract, ask a lawyer (Score:3, Insightful)
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.
Re:Obligation to Company (Score:5, Insightful)
Re:Better approach (Score:4, Insightful)
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:Better approach (Score:3, Insightful)
Grow up (Score:1, Insightful)
Grow up, and learn the ways of your opponent.
Unless your boss (and your boss's boss) is a real cool guy who is up on the idea of bad software patents, yes, you likely will be fired or reprimanded in one way or another for refusing to do something (which is legal, mind you) that you are paid to do. In short, you would be on the wrong side of the law, not your boss.
As much as we all would want to just do the right thing, sometimes doing the right thing in the right WAY is not very easy.
If I were seriously troubled by the idea that one of my programs (or algorithms) is about to be patented by my company, I would try to start thinking like your boss. First, your boss likely want to get a good patent portfolio going in preparation of the IPO. It probably isn't as important as to WHAT is being patented, as the fact that there are "many" patents in the portfolio. So first and foremost, don't think for a second that you'll be able to talk him out of patenting ANYTHING. Won't happen.
So what you DO want to do is provide whatever you do that is patentable, and likely won't mean diddly-squat in the real world. If your boss can claim to have helped patent 5, 10, or 100 patents for the company, he'll get what he's looking for. If it can be called a proprietary solution that can be peddled as such to customers (even if just a very subtle change would mean anyone else could peddle a similar version), that's even better.
Next, you'll want to find a way to NOT get the really important ones that you want to keep free, free. Except, you'll also want your boss to agree to it too. Prior art is an excellent choice here. While your boss will want to get as many patents as possible, he probably would be reluctant to do so if you can show that there's a high probability that the patent would be challenged in court, and likely lose, due to prior art. Getting your candy taken away in court, and actually PAYING legal costs to get it taken away, is not a very appealing scenario to just about anyone.
So the deal is, as with most things in the real world, that you need to play your cards right, and be willing to win some and lose some. Just make sure you win the important ones, and you'll be better off than just outright refusing something unavoidable and losing your job.
This is not legal advice, this is common sense work-place advice.
Re:You're confused (Score:1, Insightful)
There's a place where you follow strict orders and shut the fuck up. It's called the military.
FTFY.
If your manager is more similar to a drill sergeant than a regular human being, it's probably time to switch jobs to one that expects its employees to have minds of their own.
Re:Obligation to Company (Score:1, Insightful)
You know that your reasoning can also be used to justify Yahoo/Google/whatevers cooperation with dictatorships et al?
Spineless, greedy coward.
stall or make very specific claims (Score:1, Insightful)
Since there is a lot of paperwork and plenty of revisions to do with the attorney, there is ample room to stall (if what you are trying to patent is disclosed to the public, you only have 12 months to stall). The other option is to make the primary independent claims so specific that they have no value as IP but still look good on paper. You still get credit but the company loses hehe. . .
Re:You're confused (Score:1, Insightful)
There's a place where you follow strict orders and shut the fuck up. It's called your job.
Life's too short. If you can't be happy where you spend the majority of your time every day, find another job.
Re:Better approach (Score:5, Insightful)
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:Obligation to Company (Score:2, Insightful)
Your job is to be a soldier for a government - they pay you for this. Thus, your feelings on whether the war is just is irrelevant. Any weapons you've built for the government while being paid by the government belong to the government, and if they choose to carpet bomb with them 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 reprimand you? Absolutely.
Remember, you were just following orders. That's always a valid defense, right?
Re:Better approach (Score:1, Insightful)
All commentators so far have missed something important: patents ARE NOT filed in your company's name. They are always granted to an individual (or set of) and then can be assigned to the company. This is not copyright work-for-hire. So yes, it is your name and your right to not file. And if you are not included in the inventors list and you DID invent it, then you should be able to show the patent is invalid.
Do your job and HELP the company by reporting prior art to your manager. CC unrelated people (and not your lawyer) so that it isn' privileged communication.
If you poison the well then the patent will be worthless anyway. Be sure to ask about patent rewards (most places give a bonus upon filing) and request the bonus because of your good work.
Basically, make it clear that you are a money-grubbing person asking to file many patents and getting rewards in the meantime asking questions that undermine the patents. If you do this innocently enough you probably will get away without reprecussion except being ignored on patent applications.
Do NOT undermine your business and job based on patents that probably won't ever be used. And you could always testify against in court later against your claims, at which point you probably won't be at the company very long anyway.
Finally, just threaten to quit if the advice above is too against your principles.
Re:Better approach (Score:5, Insightful)
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:Well... (Score:2, Insightful)
That's the answer in 90% of these dumb "Ask Slashdot" hypotheticals. Anyway, I'm sure the submitter just made the entire story up, trying to come up with something that would press the right buttons with the Slashdot editors; who in turn are looking for something that will excite 400+ posts of blather.
What kind of a fucking idiot would contemplate defying his company in this way? And what complete doofus would base a career-defining decision on what a bunch of bored geeky jokesters post on a forum? If the submitter is not really such an idiot, he just made the whole scenario up. In either case, wasted effort to take it seriously.
Re:Better approach (Score:5, Insightful)
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.
Re:Better approach (Score:2, Insightful)
Right and everyone is rational individual who's too sensible risk libel cases, no one is power crazed, vindictive prick.
I dunno about you but I'd much rather leave on good terms than bad ones. If someone does call them and they hate you they can say "Yes, he worked here from date x to date y as an (engineer/manager/whatever)". If they like you they'll say "Oh yeah? He worked here and was very good in these areas/ was a good laugh to go out for a drink with/ worked hard/ some other positive thing".
Re:Chances are... you have "at will" employment (Score:2, Insightful)
"He wouldn't do what I told him to do" would be for cause.
Re:Up to you but just remember... (Score:2, Insightful)
Just because he morally disagrees with patents on IP does not mean that he should not persue this legal avenue to protect his company and his job. Until the law is changed, you have to work within its limits or face potential consequences. Even when you are in the right court cases are costly and bad for business.
Re:Better approach (Score:5, Insightful)
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:Well... (Score:4, Insightful)
Re:Better approach (Score:3, Insightful)
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 only going to be used in house, then argue that it is both less costly and less risky to treat it as a trade secret (no worries about being sued for infringing somebody else's patent; no unnecessary legal expenses with the crapshoot patent process). You and management might have some disagreements about your NDA, but that's a very different problem. If you were hired without a formal NDA that covers this kind of thing, then it would be in their interest to have you sign one, and you should be compensated for your signature with a raise or bonus (otherwise the NDA might not be a legally binding contract).
If the company intends to include your work in a product that it will sell or put before the public, and your work will be visible in that product, then the company should be thinking about patent protection, reducing risks of exposure to infringements, and all those kinds of things. Your personal objections to software patents need to take a back seat in this situation. Since the company paid you to develop the application, the application belongs to the company and if you don't like that, you should have walked away.
The above advice is worth every penny you paid for it....
Re:Better approach (Score:5, Insightful)
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.
The worst (Score:2, Insightful)
The worst that can happen is that someone else patents it 5 minutes later, and then you lose out on your own work. Not all patent applications are offensive. Some are defensive.
Re:Chances are... you have "at will" employment (Score:3, Insightful)
There doesn't need to be an actual written contract setting out specific duties; without a written contract (or even with one where the duties aren't defined) the law will interpret the terms, and I think for a software developer to be asked to help out with the patent process would be considered normal job duties. Therefore, refusal to follow orders to help out would be cause for firing.
Your example is worlds away from what's going on here.
Re:Better approach (Score:3, Insightful)
.
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
- whose professional instincts are to strip away the melodrama and get down to the essentials.
The geek in his BVDs doesn't cut quite so sympathetic a figure.
The lawyer will tell you that the odds are no better than fifty-fifty if you go to a jury verdict - and that you are more likely to lose big than to win big.
Think about it for a moment:
The jury gets to decide only the remaining factual disputes that the judge believes are significant. If that is a slam-dunk for one side or the other, why are you here at all?
Re:Chances are... you have "at will" employment (Score:3, Insightful)
>Your example is worlds away from what's going on here.
Patent application process exposes the individual to all kinds of personal civil and criminal liability.
He should ask the company for written prior agreements to represent him with his choice of legal counsel.
The company is asking him to take personal liability for certain things. He has a right to refuse this.
You can't cheat an honest man (Score:4, Insightful)
.
You will find the lawyer - or the doctor - you deserve.
If he isn't telling you the truth, it is because you don't want to hear the truth.
Principles First (Score:4, Insightful)
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.
Re:Better approach (Score:3, Insightful)
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:Well... (Score:3, Insightful)
Being serious for a moment, it is possible to overdo a parody to the point where it's no longer as good. If you add too much, it starts to look like a parody of what you think content-free managers say, rather than a parody of what they actually say.
Having said that, you have a point. There is a kind of Poe's Law [rationalwiki.com] when it comes to managerial weasel words.
Re:Better approach (Score:2, Insightful)
I see.. so you work for Microsoft, and you only want developers with no backbone and no brain?
As for the P.I. nastiness; it is illegal to obtain those records, and crime doesn't pay, i'm sure there will be repurcussions for your company, when the P.I. is eventually caught.
You shouldn't have posted... the deniability is no longer plausible!