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?"
Play the game (Score:2, Interesting)
Job vs principaled stand (Score:5, Interesting)
Not going along with legal/hr is a losing battle. (Score:5, Interesting)
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!
Easy fix (Score:5, Interesting)
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.
How "strongly" opposed are you really? (Score:5, Interesting)
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?
Re:Obligation to Company (Score:1, Interesting)
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.
Not true. He could just refuse to patent. This might get him fired, but so what? It's his decision. Nevertheless, it would be somewhat awkward for the company to file a patent in the name of an employee they fired (yes, they have to mention his name in the U.S., even if it is a work for hire).
Re:Firing (Score:3, Interesting)
I went through a similar issue (Score:4, Interesting)
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.
Filing is step 1 (Score:5, Interesting)
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.
Re:Obligation to Company (Score:2, Interesting)
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.
The better way is... (Score:3, Interesting)
AFAIK, at John Deere my boss has patented mechanical things, and we have made Trade Secrets out of software.
Re:Better approach (Score:4, Interesting)
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:Obligation to Company (Score:2, Interesting)
> Anything that you've written for the company while being paid by the company belongs to the company
Except for your name on the Patent as inventor.
I wonder if that raises issues of responsibility regarding prior art?
Re:Well... (Score:4, Interesting)
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
Re:Better approach (Score:3, Interesting)
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:3, Interesting)
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.
File? (Score:3, Interesting)
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.
Re:Better approach (Score:2, Interesting)
Re:Black and white: yes (Score:3, Interesting)
I think you are taking this sort of thing far too casually. Just don't get caught in a courtroom or be brought before a deposition and having to answer why you were so incredibly stupid to sign a document with the forged signature of Adolf Hitler.
I promise that not only will there be legal consequence to such a stupid act, but your credibility for anything else you will say will be shot to hell.
I, unfortunately, know of a kid who signed the name "Mickey Mouse" to a credit card application and did 10 years in prison because of it, under the charge of "credit card fraud". He put a whole bunch of other B.S. into the application that perhaps ought to have given the judge a chuckle and had the case thrown out of court, but instead the judge lacked humor and tossed the book at him. This BTW was the only credit card application that the kid had ever filled out in his life, and made the mistake of filling it out the day after his 18th birthday (and therefore legally an adult).
Re:Better approach (Score:2, Interesting)
No, you absolutely do not. Generally speaking, you (as an inventor) only disclose any prior art you know of at the time of the filing. It is up to the PTO to find other (previously unknown) prior art during patent prosecution.
The exception to this is when you file a petition to "make special", which speeds up some parts of the process, but does place an affirmative burden on the applicant to do a prior art search.
As the other posts note, doing this on your own (without legal advice and against the wishes of your company), potentially opens you and your company up to willful infringement issues.
Re:patents not necessarily a feather in one's cap (Score:2, Interesting)
Send your ideas to google first! (Score:3, Interesting)
Just BCC to a Gmail account.
1 months later google patents that idea...
I Kid! I kid!
Re:Send your ideas to google first! (Score:5, Interesting)
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:1, Interesting)
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.
When I consider hiring someone for a software development position where patentable I.P. may be involved, I have the P.I. firm I keep on retainer do some digging. I have the P.I. look through the prospective employees' employment history, as well as having them examine their internet browsing history and phone records (I don't know how they do it and frankly I don't care) and any political and/or activist affiliations, as well as banking and other financial records. It's also rather nice if other than what I've mentioned, that an affair or other equally nasty secret is uncovered as that gives me leverage if salary demands or moral qualms on the employees' part comes up.
If the P.I. finds that the candidate frequents any sites like /., Groklaw, or any patent reform advocacy sites, or has contributed to or participated in any patent reform organizations, the E.F.F., net neutrality organizations, etc etc etc, then their resume goes in the bin. There are entirely to many downsides to hiring an "activist" or anyone who may cause my corporation any trouble. The only question I want from an employee is to ask "how high?" when I say "jump!". I don't care if I just told him or her to directly rip code from an open-source project, it's not their job to question, just do what they're told. That's what our corporate legal department is for.
Yes, it's nasty, amoral, possibly illegal (if proven in court), but this is business with the big-boys. Even if caught, the money we make/save far outweighs any penalties. In almost 20 years, we have yet to face any court challenges. Will I/we tell you that we're being this invasive? Fat chance! Will you have any clue why you didn't "make the cut"? Not a chance! You'll be given some bogus reasonable-sounding excuse. Plausible deniability isn't just for 3-letter government agencies.