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?"

Comments

Well...

[fyngyrz]

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

[LightPhoenix7]

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.

Re:Obligation to Company

[Confused]

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:Obligation to Company

[Z00L00K]

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...

Re:Obligation to Company

[ScrewMaster]

If he refuses to help on the patent application after being instructed to do so, he's being insubordinate. That's grounds for immediate dismissal at most places I've worked. His personal feelings aside (and I agree with him that software patents were and are a bad idea) the reality is that the code in question is not his property. He should just deal with it, and if it really bothers him that much seek a position elsewhere.

Of course

[tsotha]

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

[EmbeddedJanitor]

Find some prior art. It's generally quite simple beacause there really are few new ideas oth there.

Tell boss the patent wont fly because of this prior art and you're saving the company $10k+

Re:Better approach

[beeblebrox]

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.

Re:Better approach

[WalterGR]

Tell boss the patent wont fly because of this prior art and you're saving the company $10k+

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

[Hal_Porter]

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:Better approach

[WalterGR]

prior art doesn't necessarily have to be patented.

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:Better approach

[rvw]

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

[JoeMerchant]

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:Better approach

[Anonymous Coward]

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.

Think it through...

[coolgeek]

You'll be fired, and they'll file the patent anyway.

You're asking the wrong question

[QuantumG]

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.

Chances are... you have "at will" employment

[vladkrupin]

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...

[CeruleanDragon]

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:

[untaken_name]

"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.

Not really

[WindBourne]

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.