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."
A rate should be set at hire (Score:5, Interesting)
By default/law, make it 50/50, and then let employers and potential employees negotiate.
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.
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Please re-read what you just said. You just made a great argument against what you are arguing for.
Re:A rate should be set at hire (Score:5, Informative)
Re:A rate should be set at hire (Score:5, Interesting)
I've never seen any "only while on the job" language in any contract. The language I see is more along the line of "as long as you are employed by XYZ, all your inventions are belong to us."
I and a number of other staff negotiated 'only on the job' language in our employment contracts back in 2000, so yeah, it happens.
These days, I require such language. I have no problem with works for hire, but I do have a problem with someone else taking credit for something in which they were never involved.
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I and a number of other staff negotiated 'only on the job' language in our employment contracts back in 2000, so yeah, it happens.
These days, I require such language. I have no problem with works for hire, but I do have a problem with someone else taking credit for something in which they were never involved.
Agreed, and in several states, any contract stating that EVERYTHING you invent is the employer's is automatically limited by law to things that are a) done on the employer's time, b) done on the employer's equipment or using their resources, OR c) the employer was credibly planning to do already. I believe California is one of those states, and due to this, most standard employment contracts have these exceptions baked in, even in states where an employer assignment can be unlimited. (I am not a lawyer, y
Re:A rate should be set at hire (Score:4, Interesting)
Welcome the world of unenforceable contract terms.
IANAL, but like non compete terms, most "all your base are belong to us" terms are overly broad and non enforceable. You of course have to actually go to court, be able to afford a lawyer who can find his or her own body parts in a darkened room and once again most importantly be able to afford a lawyer who can find his or her own body parts in a darkened room, but generally speaking as I understand it, if you create in your own time on your own equipment and can prove it the invention is yours, even if you've done it on work equipment they'll generally only end up with a free perpetual license as opposed to actual ownership of the idea. I'm fairly certain this applies to copyright which does have work for hire so I don't see why it wouldn't apply for patents as well.
It's the magic of the legal system though, your employer gets you to sign an idiotic contract clause because you're afraid you won't get the job knowing that you are incredibly unlikely to actually challenge said term, even if the legal team know full well it'd get tossed out if you 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.
Depends .... (Score:5, Insightful)
Re:Depends .... (Score:5, Insightful)
People have a life outside of work, after all.
Re:Depends .... (Score:5, Informative)
Nope. It's still yours in the U.S. Most employers who anticipate any inventing on the job require you to sign an agreement at the time of hire stating that everything you invent is theirs. Some of these agreements are very nice and cover job related stuff, others try to include unrelated stuff you think of in the shower. And even then, you have to sign paperwork to assign an individual invention to the company.
Re:Depends .... (Score:5, Insightful)
What a quaint and archaic concept.
Re:Depends .... (Score:5, Funny)
Life outside of work - I call that *sleep* usually...
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I've heard of it... does your employer allow this nonproductive time?
Re:Depends .... (Score:4, Insightful)
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And if it was, what is it that keeps an employee who invents/discovers something during normal work hours from burying it for a few hours, then miraculously thinking of it at 5:01pm?
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That may be how it is but that's not how it should be.
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: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, Interesting)
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.
So here's an example to draw upon that shows how the compartments still happen, regardless of how steeped in our work we are.
I do cyber security, and I absolutely live, drink and breathe it. Several years back, I had been working on a book under contract. The book was germane to my field of professional expertise. I wrote it on my own time, on my own computer, and the content had nothing to do with my current employer. (Just to make sure that part's clear.) I got bored in my job, having hit a point where things were progressing no further, and gracefully started exiting. I had an offer from a company (let's call them "AC, which is the letters of the company name but rearranged") and was in the process of taking it, even having given notice at my current employer and started helping them look for a successor. Then, I got their intellectual property agreement, which stated that anything I put out was their property...ANYTHING...during my employment with them. I'd seen this before, and had asked at prior jobs...the solution is to tack on an exception for this or that thing, and that's how it's always gone. So no problem, right?
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. So I declined the job offer after all, and ended up taking a different one...which turned out to be much, much better in the end. Pity, as AC had plans for me to travel to a client and be the centerpiece of a project that was kicking off. They suddenly developed "flexibility for an exception," but by that point, I was past having any desire to interact with them on any level whatsoever, much less steer my career through the middle of that company. I went to work at EDS, and did beautifully. (Until HP bought them, that is...but that's another profanity-laden rant.)
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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 inventio
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:5, Informative)
Wrong. Copyright exists from the moment of PUBLISHING.
See here: http://www.life123.com/career-money/business-law/copyright/when-does-copyright-protection-begin.shtml [life123.com]
Works from 2002 to date.
Any original works of authorship from 2002 to the present are automatically copyright protected from the moment of their creation. You may still register a copyright in order to establish the date of copyright protection and provide better protection against copyright infringement, but it's not necessary to register a copyright in order for a work to be protected.
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!!
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I think I covered that.
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also specifically if you're employer has hired you to invent something.
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Re:Depends .... (Score:5, Interesting)
I've actually had an employer that wanted to license what I developed at home, and he wanted to pay me to convert it to his mainframe platform.
Since this was back in the days prior to there being such draconian "all your inventions are belong to us" clauses, the negotiations went smoothly.
I retained ownership.
He got a non-transferable perpetual license to both the PC and Mainframe versions.
I got a mainframe version using his resources.
No money changed hands.
Everybody happy.
Its always worse when lawyers are involved.
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: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...
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You have the right to.. (Score:2)
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You have the right to modify an employment contract before you sign it.
Of course, but the employer also has the right to not hire you. I doubt that they're going to strike ownership of inventions made on company time. They might not even strike ownership of inventions made on your own time, though I think in practice if you came up with something of serious value unrelated to your work it would be hard for them to claim ownership even with the contract.
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B) Some things don't matter even if they are on the contract. In California, they can put that they own your work, even if you do it on your own time, but that contract is invalid. It won't stand up in court. There are things you can't put in a contract.
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Firstly, IANAL, so this isn't legal advice.
The practice of forcing employees to assign patents is specifically against the CA labor code 2870-2872 [ca.gov].
AFAIK here are couple cases are often cited by law firms as a warning to companies attempting to assert strong patent assignment clauses against their employees: DDB Technologies LLC v. MLB Advanced Media LP, case number 1:04-cv-00352 and Applied Materials, Inc. v. Advanced Micro-Fabrication Equipment, Inc., No. 2007-5248 (N.D. Cal. May 20, 2009).
The general outl
Employers have so much power (Score:2, Insightful)
because people are making babies too fast.
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What do EULAs have to do with it? You can always reject them and that doesn't mean you don't get job, or have any issues in your everyday life at all.
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Re:irrelevant (Score:5, Interesting)
Every single R&D employer requires employees to assign all inventions. There is no way that is negotiable. Your pay/commission/whatever for having to do so may be, but there's no way around this requirement in today's employment market.
It's not that big a problem at all...this is simply not the truth, most of the time. I've had things in progress when I joined a company; you tell them about it, explain to them that you would like an exception to the agreement, and they (almost always...see my post above) agree to that with no muss, no fuss. It's not hard, it's not complicated, and it doesn't start a big fight. Hell, it doesn't even make you less desirable; companies want people that innovate, and if you're already doing it on your own before you even show up there, that's an awfully good sign that you'll do it for them too.
I've been through that several times, and it's only been a hassle once...and that, from a corporation that is notorious for being a total cabal of asshats. Every other time was actually a good thing, and once it actually helped me in my salary negotiations.
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Universities also have rights to anything invented by their faculty. This produces the bizarre result that your own ideas, often developed through your own grants (grants that also pay "overhead" averaging >50% to the university), belong to your employer, the university that (also) uses the grant to pay you. A few universities have made large amounts of money but most have been net losers from patent costs, etc. Fortunately, universities are slowly realizing that they have a poor record of converting
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Which is not necessarily unreasonable if your job is to invent things. I had a job once where my job was to move boxes from a conveyor belt to a truck. Brainless manual labor, in other words. They also required me to assign inventions, which being a desperate and relatively poor student, I did. I also mentally committed not to ever invent a damn thing while working for them. I moved boxes from A to B, as efficiently and as well as I could, but I didn't view the overall process as something to be optimi
Re:irrelevant (Score:5, Informative)
Very true. I always wanted to be an inventor, and have now more than a few patents. My first few patents were taken by the company where I was working during that time - even though it had absolutely nothing in common with the work I was doing for them - even the domain was completely different.
Primarily due to this, and partly due to the fact that they did not even implement the patent and try to sell it - rather they wanted the patents to bolster their resume when they went to their clients -, I left them and decided to work for my own. Started 2 companies till now, nothing has gone anywhere - but at least my patents are mine now.
I consider these total takeover of any work done to be a big deterrent to innovation overall. If I am coming with an idea, it should be mine and mine only. I am being paid for the work they expect me to do in the company - not thinking of ideas of my own. The companies doesnt even pay well for those patents and then complain that they are not innovative etc. I do understand that a very small percentage of patents make money, but for an inventor, it is his baby - giving pennies for it is like insulting him.
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Hi, nice to meet you.
I work for an "R&D employer".
I have the right to any inventions I create on my own time.
I was hired 4 years ago, pretty much in the worst part of our bad economy.
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Which goes back to what the OP said. that we need to "make it illegal for employers to ask for certain concessions."
Seriously, are you just trolling or what?
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Those USED to be called RIGHTS.
Re:irrelevant (Score:5, Insightful)
the whole concept of property (Score:5, Interesting)
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The reality is that we're sharing everything.
What does that even mean? I assure you sir, that you shall never share my dentures. And if you do, they become yours and I get new ones.
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You should be gentle with the poster. His view is a phase.
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That would get really ugly really fast for large projects.
Imagine if your company hires a brilliant programmer. He writes a massive chunk of the code and does a great job at it.
His name also happens to be Hans Reiser. One day he decides to strangle his wife and bury her under a tree. He goes to jail, gets a life sentence, and one day he drops the soap and gets rammed by a guy named Bubbah, and then beaten to death so that he can't tell anyone.
His sons inherit his piece of the code, and suppose they demand r
The copyright 'work for hire' doctrine is unfair (Score:5, Interesting)
More should be borrowed from the patent doctrine.
Now, if you create a work specifically commissioned by your employer, the employer should own the right to use your creation, but not to make a product out of it, and resell it, unless you were hired and have in writing communication that the work was specifically for that purpose
E.g. if you are hired to write custom software for an organization, by default that work should belong to you. If on the other hand, you were hired to build a custom software product, then by default, the work on that specific product, that you submit for that product, should belong to your hirer, as part of the understanding that you are doing product development work for them (versus just work for the benefit of their infrastructure).
Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
Whereas, development of software to meet an internal process, should come with an expectation that it is taylored to the needs of your employer's specific business, and you both retain rights to that.
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Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
You're killing american jobs, you know that, right? If we don't approve this, they'll be forced to take the jobs overseas, where such protections will be easier to obtain. Every attempt to restrict the profits of employers means less jobs for us, and jobs are what matter here, not letting some esoteric hippy non-sense about who owns what get in the way. And we all know that rich americans are the best kind of americans. Don't you want more rich americans? Employers already pay too much in taxes and health c
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You're killing american jobs, you know that, right?
You have advocated ideas in the past that kill jobs. So that is a valid point to make when appropriate and probably why you have heard it in the past.
*vomits a little in her mouth*
That is a stupid meme. Please stop doing it.
That world starts by saying: I own what I create with my own hands, what I think with my own mind, and nobody can ever take it away.
But you can trade it away. Which is your primary value in a modern economy. All these actions are voluntary. If you don't like such a contract, then don't agree to it.
Now for a nice piping hot cup of reality: Those jobs will be shipped overseas regardless of what laws are (or aren't) passed. Rich people have no loyalty to their country, or their workforce, and neither should you. Fuck them over for every penny they're worth. Leave with zero days notice if you get a better job. Let them drink the free market koolaid too. And when it comes to copyright law... patent law... all of that, business exists in parts of the world where this doesn't, and in fact a lot of those jobs going overseas are going there precisely because they don't have the very laws they're lobbying for here.
Go for it. However, you'll reap what you sow.
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You have advocated ideas in the past that kill jobs.
Translation: "I agree with you this time, and I hate myself for it."
That is a stupid meme. Please stop doing it.
Translation: I'm cool enough to know what internet memes are, but too hipster to use them myself.
All these actions are voluntary. If you don't like such a contract, then don't agree to it.
Translation: I have never just clicked 'Accept' when an EULA pops up because I live in a fairy-tale world where my idiosyncratic notions of fairness are never questioned.
Go for it. However, you'll reap what you sow.
Translation: I'm too old and jaded to be optimistic about anything anymore, and you should be too.
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More should be borrowed from the patent doctrine.
Now, if you create a work specifically commissioned by your employer, the employer should own the right to use your creation, but not to make a product out of it, and resell it, unless you were hired and have in writing communication that the work was specifically for that purpose
If an employer commissions you to make a work of art, they OWN that art. They can do whatever they want with it. IF you want to retain rights over the work, you need to negotiate that up front. Not the other way around.
What you are saying is kind of like "Yeah I'll build this chair for you, but you can't resell"
The I.P. clause (Score:2, Interesting)
I've wonder if the IP clause you find in employment contracts is even legal. How can an employer deem that they automatically own intellectual property I developed privately in my own time with a tenuous link to my current role? It makes *some* sense for employees where their role is to produce intellectual property, researches , authors etc, but it's hard to see how the blanket clause I've seen in every role I've had could stand up to a serious legal test.
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How can an employer deem that they automatically own intellectual property I developed privately in my own time with a tenuous link to my current role?
Easily: you exercised your right to sell it when you signed the contract.
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It depends. In California, that answer according to California Labor Code sections 2870-2872 [ca.gov] the answer is a very definitive "No.".
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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.
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IANAL, but if it were quid pro nothing, you'd be free to ignore it, because it would not be a contract.
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So they pay you for 40 hours, and you develop the same damn product at home working nights and evenings, and manage (oddly enough) to sneak your's into the patent office one day ahead of finishing your work assignment.
He beats you to market with YOUR invention, that you PAID him to produce.
How fair is that?
How would you feel if you were paying that guy's salary.
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How fair is that?
How would you feel if you were paying that guy's salary.
Just ask the Winklevosses. You basically described the founding of Facebook.
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What is the problem? You still get the product you want at the price you were willing to pay. They just happen to own the rights to resell it. Sounds to me you are equivocating salaried employees with ownership.
But what if the employer hired you expressly to develop a commercial product?
You build it on their nickle, and again in parallel in your garage in the evening.
You sneak out an patent it one day before turning over the finished work assignment.
The employer can't sell it, because you own the patent. His entire investment in the project is lost.
Its EXACTLY this kind of situation that caused employers to write these "We Own Your Work" contract terms into employment agreements in the first place.
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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
There are many benefits to being an "employee", but if you want to own stuff on your own, don't enter into an employee agreement with a company. Be a contractor. There are pros and cons of doing it both ways, but if you want to be an inventor, "employee" is definitely the wrong way to
Copyright law is what has it wrong (Score:5, Interesting)
IMHO, the major problems in IP law come from corporate ownership. It shouldn't be possible for corporations to own copyrights or patents, they should only be able to be granted strictly limited rights by the individuals who do own the IP.
Re:Copyright law is what has it wrong (Score:4, Interesting)
Your solution solves no problems, but introduces plenty.
Maybe we should ask... (Score:2)
They're right, actually. (Score:2)
Inventions are almost always the result of collaboration. When hundreds of thousands of peers around the planet.
The employer has to own the invention (Score:2)
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STEM encouragement (Score:2)
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So if I start up a small software company (composed of only myself and a person I hire in at minimum wage to help clean the place) then I should be taxed at 100%?
Killing innovation (Score:5, Interesting)
One of the reason why California has so many startups is that California State law clearly states that work done by an employee for the employee's own time and business interests belongs to the employee. It is very clear that the author of this article has no experience with startups.
If the default "inventions belong to the employer" rule was in effect everywhere, then the net effect would be to lock up employee ideas with little actual benefit to the employer. This is because most big companies are not very innovative, and thus fail to exploit most employee inventions. Most of the modern world as we know it would never have happened.
Dangerous and bad idea. I hope that the article remains forever ignored after this.
Who pays the bills? (Score:2)
In the past the individuals inventing stuff were rich people. In the 1800's knowing how to read was a huge accomplishment
Having knowledge to invent something new was only possessed by a tiny minority of people
inventions for the inventors (Score:4, Interesting)
How many inventions are/ were shelved because it would upset the financial status quo of the greedy. Pure genius is not bought, traded nor stolen. It is a god given gift. Most inventors would like to live modestly while giving to humanity. Those entrepreneurs who live in the obscenity of avarice eventually get what they deserve.
It's been over 100 years and still the truth of Tesla's inventions is protected by "national security", why? The powers that were are holding tight to these truths and yet, they are still coming into the light of day.
This government had the big three auto manufacturers over a barrel. They could have been told to put on the road, an automobile seating four adults in safety and comfort, with sufficient power, and getting over 80 miles per gallon, at a reasonable price or get out of the business. What did these CONgressMen do? They threw taxpayer money at the big three for bonuses while the taxpayers lost their jobs, pensions, homes and futures. And then these asshats wonder why the American people are pissed at them, hmmm.
If it is in the Job Description (Score:2)
If you are employed to come up with patentable inventions then yes, of course. And even if you spend time developing it in your free time, Intellectual property is far to intangible to really differentiate, so I can see why it makes sense to own all inventions.
If it is not in your job description (aka a main duty that you are being paid for), I do not care if it was completely worked on in your office using office supplies. They do not own you or your intellect.
as long as they pay back pay with over time and ma (Score:2)
as long as they pay back pay with over time and maybe even a overtime pay penalty for unpaided time as well.
Horrible outcome (Score:2)
Completely unnecessary (Score:2)
Unlike a copyright where copyright springs into existence at the moment the work is fixed in a tangible medium of expression, getting a patent is a long, drawn out, and formal process.
If you do something on the job and get a patent for your employer as part of the job, you'll know exactly who owns the patent before the patent application is even filed (your employer will be the owner 99.9% of the time barring weird exceptions). Your employment contract will spell this out in detail, and on top of that you'l
Simple answer (Score:5, Interesting)
This is common (Score:2)
No (Score:2)
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.
Re: (Score:2)
If someone pays you to make something, it's theirs. If you do it on your own it's yours.
No, its not yours.
If I hire you to design a boats, and you go home and design boats in your spare time, I'm going to win that law suit 100 % of the time.
If you have boat designs already when you get hired, you better have proof somewhere, or better yet disclose them under a NDA agreement.
And you better give up your hobby of designing boats from then on, even if you do it at home.
That is what this topic is all about. Its not as simple as your time vs employer time.
Re: (Score:2)
It's not so clear cut. If you are willing to pay me $100K/year to design boats, it's pretty clear I am already an expert designer.
You want a copyright on a boat I designed for you: fine, you get it.
You want a patent that covers any ideas I had before I joined your firm? Let's talk - no matter what I signed with you when I joined your firm, that patent app is in my name and belongs to me. If you want me to sign it over to you, we talk. No court is going to hold you at fault for not signing some random X, the
Re: (Score:2)
Yup. And given more and more open source "hobby" projects, it's important for employees to disclose them and make sure any work on them is exempt, etc. And while by definition it's important for contractors, it's probably more important to get these things into contracts for salaried employees as it's increasingly unclear whose time is whose. Have you ever worked from home? Then good luck separating things out in a lawsuit unless you got it in writing...
For example, a co-worker who wrote an open source
Re: (Score:3)
It helps when you own the company you work for
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: (Score:2)
The average worker, doing an average job, unless working on the concept of the patent takes a significant time, should never ever be able to be granted a patent.
At the moment, you can get a patent for being the first to think of a problem (not a solution) in an emerging field, and coming up with the obvious solution.
I'm reminded of a patent on how to make a gasket that wouldn't absorb soundwaves.
It was about the second or third thing any competent engineer would try, given even a poorly equipped engineering
don't use degrees as a fixed minimum (Score:2)
don't use degrees as a fixed minimum. Job experience needs to count as well and at max (minimum) a 2 year one.
There is debate on what is a accredited university.
In some fields degree are to board or don't even cover the area all.
What about fields where degrees are meaning less or are a very poor fit.
There is a on going push to more of a badges system.
What about stuff like trades so some who has been an plumbers and electricians for years can't be on the board?