Should Inventions Be Automatically Owned By Your Employer? 291
An anonymous reader writes "Joshua Simmons authored an article for the N.Y.U. Journal of Intellectual Property and Entertainment Law. The article is a comparison of the developments in copyright law and patent law in the nineteenth century that resulted in copyright law developing a work made for hire doctrine while patent law only developed a patch work of judge-made employment doctrines. The article theorizes that patent law did not develop an inventions made for hire doctrine, because inventive activity was almost exclusively perceived to be performed by individuals. It goes on to suggest that, as patentable inventions today are generally perceived to be invented collaboratively, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine."
Depends .... (Score:5, Insightful)
irrelevant (Score:5, Insightful)
Employers have enough power to force employees to sign contracts as a condition of employment not unlike what you'd find in an EULA. No signature, no job.
So it doesn't really matter in the long run what laws we pass unless we make it illegal for employers to ask for certain concessions.
Re:irrelevant (Score:5, Insightful)
Employers have enough power to force employees to sign contracts as a condition of employment not unlike what you'd find in an EULA. No signature, no job.
So it doesn't really matter in the long run what laws we pass unless we make it illegal for employers to ask for certain concessions.
Employers count on our fear of being unemployed to bully the prospective employee to sign away their rights.
Re:Depends .... (Score:5, Insightful)
People have a life outside of work, after all.
Depends on how much of your life they buy (Score:5, Insightful)
Your employer absolutely should be entitled to any IP you produce ... *if* they're paying you for 168/hours a week. If it's only 40 hours/week then there has to be room for you to do your thing on the time that belongs to you. I hate it (and refuse to sign -- cost me a great job once) when they try to just stick a catchall into your employee contract. Contracts are supposed to be quid pro quo deals, not quid pro nothing.
Re:Isn't it simple? (Score:4, Insightful)
IANAL, but you'd bloody well better talk to yours before you try to invoke that principle.
Employers have so much power (Score:2, Insightful)
because people are making babies too fast.
Re:Of course (Score:5, Insightful)
Otherwise, how would Edison have invented so many things?
That's easy, by being a patent clerk and being the worlds first patent troll.
Re:Depends .... (Score:5, Insightful)
If you've invented this on your own time, money, and resources there is no way in the shady side of hell that your employer should have any ownership of it. If you did this while being compensated by your employer, the situation is different. If you've used your employer's money and resources, then it is fair.
Well that depends...
Most people can't compartmentalize their lives that completely. This is especially so when engaged in intellectual work (as opposed to factory drone work where you can simply flip a switch in your brain as you walk out the door).
So if I hire you to develop a left handed corner scraper and in the process you create a patentable piece of work, you might claim (truthfully) that the idea came to you while sitting on the throne in your house on a sunday afternoon when you saw the reflection of the light switch in the mirror.
Still, had you not been working for me explicitly on this project, you would, in all probability, never have had that spark of intuition.
Its too easy for you to claim you had the idea after work hours. Every body mulls over work problems at home.
Similarly, if you are employed to handle billing for your company and you stumble upon a totally unrelated idea, say for a new fishhook, on your day off or even on the job, its too easy for the company to claim it.
Fishhooks have nothing to do with billing. Everybody mulls over recreational problems while at work.
There needs to be a rational separation, such that your employer can only claim and idea when:
1) the invention must have some relevance to your work duties
2) you must be employed specifically to design/build/invent stuff
3) you must have made some use of your employers facilities or time to develop, build, and test the invention
4) you had access to some of your employer's proprietary information that helped you
5) ??
The night watchman at the Boeing plant plant that invents a new nose gear part after years of watching planes
take off from his post in the guard station should still get to keep his design.
The engineer or mechanic working on nose gear installation: Not so much.
There is still a lot of grey areas, but at least rules like the above would eliminate a lot of patent grabbing. (From both sides).
Re:Depends .... (Score:5, Insightful)
What a quaint and archaic concept.
Re:Depends .... (Score:4, Insightful)
Re:irrelevant (Score:5, Insightful)
Re:Depends .... (Score:3, Insightful)
Re:Depends .... (Score:5, Insightful)
It's too easy to claim that an employer provided the "spark of intuition". It must have been bubbles in the watercooler, or something you heard in a meeting, or a thought you had while using the toilet at work!!
Re:A rate should be set at hire (Score:1, Insightful)
Patents are already fairly well negotiated. Employees work for a PAYCHECK and promise to sign over any on the job patents. This works because a patent is typically something small and specific. The PTO has always required a NAMED inventor and not allowed corporations to put their name in.
On the flip side, copyright by necessity has always had tens or hundreds of people involved. Just your basic daily newspaper has dozens of individual reporters and columnists involved. They have traditionally been salary to do daily research, or paid per specific piece like editorial, etc. not to mention dealing with all the photographers, graphic designers, layout, etc... That could all claim individual "copyright" if the process wasn't streamlined as work for hire.
Re:irrelevant (Score:4, Insightful)
Employers count on our fear of being unemployed to bully the prospective employee to sign away their rights.
that tactic falls flat awful quick when the prospective employee is not in fear, no?
I recall turning down prospective employers who tried that tactic on other points, and since I was already working, I politely turned them down. You would be amazed at what an employer does when you're the one who turns down their offer. Most will try to negotiate to some extent, some will move on to the next candidate, and some (rare, but) will act like a jilted prom date.
Besides, consider it this way: if they're that willing to screw you over on minor stuff like patents before you work for them, imagine to what depths of screwing they'll plumb once you're already an employee and have no other option at the moment...
Re:Depends .... (Score:4, Insightful)
Wrong. I called the recruiter, and he said they make no changes, no exceptions. I pointed out that they would be effectively stealing from me, as by this point the book was actually done, and just waiting to hit the printers. No flexibility.
Your copyright exists from the time you type the words on the page. That it had not hit the street in book form yet had no bearing on the case.
So your CURRENT employer may have had a claim against your book, but your prospective employer wouldn't.
If you still had wanted to work for that prospective employer, you would have won any court case. But why the hell would you want to work there?
Bringing it back around to my post to which you were applying, perhaps point 5 should have been:
5) the invention must have been created wholly during your time of employment
I forgot to mention in my post (above) that ALL the rules had to be met for your employer to claim the invention.
It doesn't matter. As soon as I need to debate the point with my own employer, I lose. I lose the money I made writing the book, instead using it to pay a lawyer. I lose a lot of time and energy fighting it. I lose goodwill with the publisher for getting them caught up in it. And I lose headway in my career...because let's face it, suing your own employer is NOT the way to get ahead in business. There's being right, and there's being smart. Relying on the first isn't always being the second.
Oh, and even more importantly...there's the fact that my future employer was being an asshole. Why on earth would I work for them?
Re:Depends .... (Score:4, Insightful)
Does 24/7 on the clock mean you can't enjoy a nice beer at home on a free Saturday night because that would mean you'd be drinking on the job?
Having posed that: if your contract states that every invention you make (on or off the clock) is theirs that just means you didn't do the contract negotiations very well. Dunno if it'd hold up in court, I am not a lawyer, but I think it shouldn't.
Re:A rate should be set at hire (Score:5, Insightful)
Wrong, you are paid to do what you are paid to do. Inventions can only be owned by your employer if you are paid to sit on your arse all day long thinking and trying to invent things. If you are paid to code they own the code, not any inventions. If you are paid to calculate they own the product of the calculations not any inventions. Of course not to forget fuck all catch all clauses as they are clearly false in intent and there is no way they can claim when you invented anything, their paid for time or in your time. You or your mind is never, ever a slave to someone else's greed, regardless what psychopath corporate douche bags like Thomas Edison try to write in contracts so that they can publicly claim to invent things other people actually did.
Re:A rate should be set at hire (Score:5, Insightful)
"Gee, Bank of America, I'm sorry I don't have a job and can't pay my mortgage, but you'll be happy to know that I turned down a gig on principle!"
Yeah, see how far that gets you. Not to mention, if you're collecting unemployment benefits and you turn down a job, you disqualify yourself from any further benefits.
Then there's the whole "US health insurance industry" problem, where getting cancer while not insured is fatal to either yourself or your entire economic identity. Most people don't have any choice but to get health insurance through their employer and, thanks to the for-profit health insurance industry, paying for your care out-of-pocket will cost you everything you own.
Yeah, you'll be taking what we offer and you'll like it. If you don't like the language in the employment agreement, I'm sure we'll find someone that does.