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Can I Be Fired For Refusing To File a Patent?
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?"
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.
I've fallen off your lawn, and I can't get up.
Your job is to do development for a company - they pay you for this. Thus, your feelings on whether patents are broken or not is irrelevent. Anything that you've written for the company while being paid by the company belongs to the company, and if they choose to patent it that is their right. You don't own it, you have no say. Consequently, when you tell your boss you won't do what you are being told, despite the fact that ethically you may have a point, you don't actually have a leg to stand on. So will you get fired? Who knows, we don't know your boss. Would your boss be in the right to repremand you? Absolutely.
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.
Tell boss the patent wont fly because of this prior art and you're saving the company $10k+
Engineering is the art of compromise.
You'll be fired, and they'll file the patent anyway.
cat
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.
How we know is more important than what we know.
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.
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?
Jobs? Which jobs?
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.
ad astra per alia porci
"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.
http://xkcd.com/386/
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.
It's your employer's call. It WILL offend them, and they WILL get even. Consider the bad economy before you put your career on the line to make a statement, and then consider what the patent is worth - unless you're claiming ownership of ones and zeroes then it likely won't hurt anyone too much to sacrifice yourself over.
He wouldn't own the patent, his company would, and he would have no say in whether to enforce it or not.
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.
Donate free food here
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
First, it will depend on the state. But the simple fact is, that he developed those items FOR the company AND on company time. In just about EVERY STATE, if not ALL states, the company owns the patent (unless the author explicity excluded those BEFORE time of contract. As such, they are now asking him to submit THEIR idea to the PO. This is no different than if they ask you to take a pix of something, or back up something, or whatever. It is expected AND legal for the actions that they are asking him to do. As such, I would expect him to be fired for not doing the patents. Though that is NOT a very good idea in front of an IPO.
The idea of getting a lawyer is the best advice that anyone can give.
I prefer the "u" in honour as it seems to be missing these days.
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.
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.
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. . .
I never said that he did have to file a patent, the point I was making was that if he doesn't file a patent and a patent troll goes after him later, the patent may save his company from a lawsuit.
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.
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.
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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.
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.
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