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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.
The law is the law, even if you disagree with it. There are several reasons why you should listen to your boss - your job, his job and the prevention of possible law suits in the future.
IANAL, but I'm pretty sure there's only a small set of things you can't be fired for in the US, like race, and anything else is legal. There's probably no law protecting your right not to file patents.
Play Command HQ online
Maybe you can just copy and paste some wording of another "similar" patent and wait that the system rejects the patent...
Need an ISP in South Africa?
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.
Just patent the process of firing someone for refusing to file a patent.
Then they'll have to license the technology to be able to use it against you.
Frivolous patents are evil.
In many states, you can be let go at any time for any reason. It really comes down to what you value more, your principals or your job. Of course, if you are a valued employee, and if you are coming up with patentable ideas, I'd assume you are, how you broach the subject may help influence how stable your job is. Instead of first saying "I refuse," instead consider, "I object," followed by your reasoning. If they then push the issue past your objections, you can always move on to "I refuse."
--- It's not my fault this post looks redundant. I just type too slow.
I suppose that, overall, it could be deemed insubordination to refuse, and you could end up out on your ass. It all depends on the company's overall handling of employees, and how willing they are to get rid of outside-the-box-thinkers.
You also need to look at any sort of contract/agreement that you'd signed pursuant to your employment; essentially, if such an agreement says that the company owns any work you do for them, which one would assume they would insert such a clause to prevent you jumping ship and taking your work elsewhere, then it's no longer your right to refuse to fill out any patent forms for the work, no matter how distasteful you might find them. And ultimately, they would likely end up going ahead and doing it anyway regardless of what they end up doing to you; and if they get rid of you in that sort of situation, the outlook is much more bleak for you should you try and pursue any legal action over your termination.
I don't post AC. I like my -1, Flamebaits. Trump/Sheen 2012 on the Batshit Insane ticket!
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.
You may need to read your employment agreement.. if there is anything in there about the company owning the rights to your work while employed there, then you don't have much recourse because they can just file it without your permission anyway as "something our team developed."
I wish there was a choice that said "Factually Wrong -1" when I mod.
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!
I am pretty sure anything you create and or do is the property of your employer. You more then likely signed some sort of agreement.
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?
Just do what they want. First step in the process is to search for prior art - I am sure you will find some for any software development project!
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.
We do not live in the 21st century. We live in the 20 second century.
If you are against software patents, the best thing you can do is get your own patents in the current state of things. Then you can choose to not enforce them, while having strong grounds to prevent anyone else from patenting it and suing you despite your work being prior art. (It can and does happen.)
By reading this you acknowledge that you have read it.
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?
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.
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"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/
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.
You do face a possibility of being fired for refusing to go along with their demands. As others have mentioned, you can be fired for damn near anything -- even if you don't live in a "right to work^H^H^H^Hbe fired" state, they can still make up a reason and fire you.
They are looking to you to provide them with the basis for their IP (imaginary property) when they file their patent -- so you may want to make sure the patent is as indefensible as possible. Throw in lots of obvious prior art, don't explicitly cite references to it, just make sure it's clear to anyone who's looking that there's no originality. True, it may still lead to litigation in the future, but you'll be giving innovation the best possible chance to prevail.
You have to pick your battles, not every fight is worth the cost. If I would be in your shoes I would quickly embrace your boss on seeing the wiseness of patenting the stuff you did, you both should hype it to the senior management and in the same turn negotiate with you having pre-IPO shares of the company. If all goes well your net worth will increase and in the best case scenario you get promotion and increase in your pay. With the added money you can either contribute it to political candidates and foundations that are against software patents or you can start writing articles about need for patent reform and posting them here on Slashdot.
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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.
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.
Arash Partow's Philosophy: Be a person who knows what they don't know, and not a person who doesn't know.
First Q: If you're so dead set against your company patenting your software IP, did you negotiate (eg, by crossing-out lines of your contract that apply to it) by way of -precluding- your unwilling involvement and/or conflicts that might arise over your tenure with this organisation?
If not, I don't like your chances.
2nd Q: How committed are you to your position?
If your employer asks you to choose between your job & your position on Software Patents, are you prepared to forfeit your job?
(Of course, even if you choose to depart from the present context, eg, to make a statement that everyone involved in the current negotiation would understand, there's every chance that your [then-to-be past-] employer would still go ahead and apply for the patent, after you've been replaced.)
The best way is to work for yourself, eg, in a small group of like-minded people, and be careful about what you sign... set an example, that others might pick-up & try.
(The guy, who runs Photo.net has a couple of books, one of which outlines such a structure, based on groups of 5 talented people, who - together - create database-based web sites, on their own terms, for their clients; roles such as project lead & client liaison rotate after each completed project, and people have different skills, useful to project goals.)
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.
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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
Typically, it says you will cooperate with any patent filing decisions or actions. Your employer certainly owns any work product produced in association with your employment. Your employer certainly will receive any and all royalties from the patent. Whether they must share the benefits of the patent with you depends on the contract.
sux 2 b u
What a dumb idea.
You do not own the work you do for your employer. Patenting their stuff in your name is probably an easier way to get fired than having a chat with your boss and discussing your objections to the idea of patenting software.
Matt Thompson - Actuality - Insert product here.
IANAL, but I'm pretty sure there's only a small set of things you can't be fired for in the US, like race, and anything else is legal.
You can't be fired for religious belief. Join the church of GNU. it already has a saint
Trade Secret. It gives you all the same protections of a patent and has no limit on enforceable timespan, but disregards people who develop similar things of their own accord. It doesn't prevent reverse engineering however, but that's seldom needed for software. By the time someone can reverse engineer a software product, it's of little use anyways.
AFAIK, at John Deere my boss has patented mechanical things, and we have made Trade Secrets out of software.
Money is the root of all evil?
... off the record. Tell him your stance on patents, and if he wants to go ahead with it, go along with it. Or quit. Those are your choices.
You were told to do something by a manager and didn't do it. I think you will get a warning and next time you will get fired.
Whatever your beliefs, you have to do things at work when you are told to or find another job.
Software patents may stifle innovation and competition, but if you work for the company that has all the patents then surely your job is safer?
If you don't chase after people who infringe on your patents, that's your prerogative. Why you would go ahead and let people get rich off your life's work while you get nothing from it, however, is beyond me. Let people use your work if you want, but the patent process allows you a way to screen who exactly gets to use it, and what they get to use it for. At least this way nobody'll be building a death ray based on your ideas.
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.
And yeah, you definitely can be fired for it.
By all means, talk to your boss and outline your concerns.. but if push comes to shove, and your boss demands that you do it, and you outright refuse, you may very well be looking for a new job.
I am the maverick of Slashdot
Can you live with it? Yes. And in case of a no, the situation is worse.
Find another job or let it be, but don't wait for others to make the decision..
Did FSM command this?
I prefer the "u" in honour as it seems to be missing these days.
when did this idea that doing shit your told to do at work is optional? i blame gen Y. wait till the next big depression i'm going to run around with a camera taking photo's of their sad faces.
If you mod me down, I will become more powerful than you can imagine....
Is this NOT prior art that prevents it from being filed? i.e the company could simply pull this up and declare it prior art and it is all over.
I prefer the "u" in honour as it seems to be missing these days.
I'm politically against ties. They are an inappropriate offensive phallic symbol, carry germs because they are hard to clean well, a safety hazard as they get caught in shredders and fans, and make people turn up the AC, contributing to global warming. Can I get fired for refusing to wear one?
Table-ized A.I.
Publication does not necessarily prevent patenting. If the poster's employer can demonstrate, quickly, that the employee came up with the patentable idea previously, and demonstrate that to the patent office quickly enough, they can probably still get the patent. There are strange laws about timing of the application and publication of details of patentable technologies: this is what good attorneys are for.
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.
The problem is not really whether or not you can be fired, but why your employer is asking for patents in the first place.
Usually, it's because they have received advice from lawyers, or because they feel it will increase the value of the company.
In some markets, holding a patent can be very profitable but only if the conditions are right. Mainly, you need to be the only firm with patents in that area and you need to file patents that are basic enough to capture the full market.
If your firm is not in this position (which is very rare if not impossible today), then filing patents will increase, rather than decrease the chance that the firm will enter into litigation.
Filing software patents makes it more, not less, likely that the firm will be sued for patent infringement. This is worth explaining to your employer. The reasons are ironic: a firm that holds a patent in a lucrative area becomes a competitor to other patent holders, and they typically start a patent ambush by attacking other patent holders. Only when these fights are settled will they go on to attack the market. So it's small patent holders who get the bulk of the most aggressive litigation against them.
If your firm can establish a portfolio of patents this can provide some defense against other product-making firms. But it's useless against a patent troll, and these form the growing majority of patent licensing operations. A firm with patents thus becomes a litigation target for a second reason: it is a way to get the patents for cheap.
In conclusion: taking software patents can be very dangerous, and explaining the risks can be a good way to educate your employer to share your view on software patents.
The only useful reason for software patents I know of is to get tax benefits, and this can be done with patents in areas that no-one cares about and where litigation is unlikely.
My blog
Of course, his contract may state that leaking company secrets may be punishable by amount X. If you must publish it, do so anonymously.
Visit http://ringbreak.dnd.utwente.nl/~mrjb/growingbettersoftware to download your free copy of the book
There is a one year "grace period" in which you can still patent it. But that was not my point. It appears we read the comment of the OP differently:
* I interpreted his statement in the general sense: if you (as a company or person) are against software patents, the best thing is to get the patents yourself since then nobody else can still get them. I simply replied that if that is your goal, it's better to simply publish things.
* You interpreted it as specific to the situation of the submitter. But I don't think that's a real possibility, since he obviously did the work while hired by his company, hence the work belongs to that company and he cannot (legally) go out and patent (nor publish, for that matter) the work in his own name. Personal publishing in that case would possibly not even count as a publication, because it presumably wasn't authorised by the company (you can't put trade secrets back into the box, but you can do that with pretty much else).
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RedHat files patents for a good reason: they are to be used as a defense against a possible Microsoft (or other) lawsuit.
Software patents suck, they're absurd, but there are plenty of patent trolls out there who are busy sueing everyone they can milk, whether or not you file yours. You won't make a difference; not even in the sense that just one person's vote does'nt make much of a difference. That's not a vote.
On the other hand, should you file and get a patent, your opinion wrt software patents would have more weight. You could write your congressman asking for patent reform and say "I've got a patent and I think the system is BS."
See http://slashdot.org/comments.pl?sid=648211&cid=24633253
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That work you're doing doesn't belong to you - it's your employer's under work-for-hire. Any smart company will also have an IP/Non-disclosure agreement that also explicitly states that you are aware of this and agree to take reasonable actions to help them protect their IP even after you leave the company.
That said - YOU probably won't be asked to do anything "unethical" if your issue is simply you don't like software patents. You will be given a document that makes various "claims" about some concept/process/product. Your signature simply says that these claims are true and that you helped originate them. So long as that is true then you should sign the document. In fact, if you withhold your signature on a true document then you could have a financial liability yourself even if you resign/quit. If the IP is particularly critical and somehow the lack of your signature would prevent them from getting protection for it you could be deposed and compelled to testify as to whether those statements are true or not which would still give them what they need to file the patent.
Naturally any refusals on your part sans concerns about obviously untrue claims is gonna cause you to be viewed as a risk and management will look hard at cutting you loose and finding another colleague who can verify their claims.
Your job isn't to determine patentability - that's the lawyers and patent office (who sadly are clearly NOT doing their jobs these days).
Whatever your views are of IP, I find the presumption of your question that you are somehow owed a job but your employer is not entitled to the full legal value of what they paid for as hypocritical and pathetic. If you REALLY want to put an end to abuse of software patents and IP law - QUIT PROVIDING THE IP IN THE FIRST PLACE YOU TWIT!!!! IT IS *YOUR* FAULT THEY HAVE THE IP IN THE FIRST PLACE CAUSE YOU CREATED IT!!!!
Your mind and your ideas are the ONLY thing you truly own that cannot be taken away from you. When you sell it to others you can't take it back - that's fraud - but no one forced you to take the job in the first place. You are EXTREMELY fortunate to be in one of the only industries in human history where one's imagination can rapidly produce new and unique tangible value to mankind. So what are you going to do with it? Quit whining and take responsibility if you want to change something.
If the work was part of your assigned duties, then it belongs to the company, and it can do whatever it likes with it. So if you disobey orders, that's plain insubordination, and grounds for firing. Don't release it on the Net w/o permission either; that's tantamount to revealing trade secrets. Also grounds for firing. If you're opposed to what this company is doing, why are you still working there?
You could suggest to your management that you file for a patent, and then dedicate the patent.
If you want to get a patent to prevent someone else from lording a patent for your own invention over you, this accomplishes that and gives you some tiny bit of security.
Or, at least, in the naive view of the world that thinks that the patent office doesn't make mistakes and that people give a damn whether they are right or not before filing lawsuits.
In reality, when some patent troll comes around to suck you blokes dry for violating 'their' patent, it probably doesn't matter that you have a patent in your pocket or dedicated to the world.
When it comes down to it, the risk for you losing and having to shut down is greater than the risk of them having to pay your lawyer fees. You pay them their blood money and send them on their way. Presumably, you pay less if they need to 'cross-license' with you as part of the agreement.
for not being an expert of the patent process. They didn't hire you as a patent lawyer after all. But same time I think you have to do what is in your ability to do to support the patent process. You don't own the code they do so it isn't your call. They have the right to expect that you'd help them commercialize the product you develop. That said you are probably the only one that can make the process smoother in the sense that you know the innards of the problem and why your solution is innovative, so you do have some power.
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.
the first question that comes to my head is how committed do you feel to the company you work for? I mean, do you consider yourself a part of this company or just an employee who doesn't give a shit about the company's future as long as they can afford you? Since you're discussing about filling patents based on your work, I guess you're not just the "Hi, who are you?" guy. How does the company treat you? How valuable do you feel?
You can always file the patents and then screw them after some digging in the prior ones. Is that what you really want? Do they deserve it?
On the other hand, you can just refuse to file them and get fired (probably). Can you afford that? Will you by any means miss your (previous) job?
I think that it all comes down to your professional relationship with your boss/company. There are many many ways to support the open source ideal and I think you're messing with the worst one. No one will ever see a hero in you for screwing your company or losing your job because you hate software patents. Just file the damn ones and aid the community by participating in something more valuable to it.
Oh, I see. This makes a bit more sense to me, but not much. If he can't publish as an employee, because the company owns the work, then your original advice to 'publish' makes little sense. It's trading his concern about software patents for that of being immediately fired, with cause, losing unemployment benefits and job recommendations by a publicly traceable act. That's deadly to a career.
So your advice wasn't for the original poster, it was for a company that dislikes software patents? Then say so, because it can get the original poster fired if he tries it, and you apparently weren't talking to him. That's reasonable to do, but please say so in your messages.
The next question is if you will believe the answer I gave you. Only one way to try it out.
Oh and IAAL, so you can perhaps look at the advice in a different matter. (Oh, the L stands for Layman)
Don't fight for your country, if your country does not fight for you.
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. . .
My advice wasn't for the submitter because the OP in this thread was also not addressing the submitter (the submitter obviously has no say whether or not his company will actually enforce the patent once the got it).
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IANAL etc, but as far as I can see it, yes you can refuse.
Find prior art. Like other posters said, that is likely.
In order to file the patent, you need to sign a statement, under penalty of perjury, that states that you are not aware of prior art. Claim that you cannot, in good conscious, sign that statement.
If you get fired for this, you have a cause of action - you were requested to do something which is illegal (perjure yourself), and when you refused, you got fired.
Shachar
P.s.
If you really try to find prior art, not necessarily from the patent pool, and can't, then maybe this invention deserves to be patented?
Under the new world order, you can be fired if your boss simply wakes up on the wrong side of bed.
Huh?
Please define "world".
I don't mean this as an insult, but get over yourself. Keep your job, continue to pay your rent and let someone bigger fight the good fight. By taking a stand you aren't going to accomplish anything at all except to damage your good standing at your job. No good will come of this. You'll end up spending a few weeks watching soap operas and eating countless bags of fritos with nothing to show for it except a boss sized footprint on the back of your pants.
This is an interesting situation. I also think that software patents have been taken entirely too far and are stifling innovation. However, most companies have you sign a contract that basically is worded in a such a way that whatever work you do there becomes the property of the company and therefore the legitimate (in their eyes and in the courts eyes) intellectual property of the company. Depending on the contract that you signed to work there you may not have any legal recourse. As other people have pointed out though you would be best to consult with an attorney and especially with one that works with contract and patent law. Thanks.
The work contract regulates what portion of the work the employer owns. Generally, though, real-world contracts work like what you describe.
Stop the brainwash
I agree with you about software patents (not to the same degree as you seem to, but thats a conversation for another day). While software patents are a bad idea, you have to realize that that is the system you are playing in.
You can stand on your moral grounds, but your boss won't really care about that, especially if the first he has heard of it is an aggressive stance by one of his employees. What your boss will care about is that if he isn't allowed to patent it, but his competitors are, he is at a disadvantage.
I would suggest that you talk to your boss, explain your stance, file the patents anyway and suggest to your boss that you look into alternative methods for protecting future income for the future sake. Patent reform is needed, but (unless you are really wealthy and don't need the job) I wouldn't risk your job to take a stand. Take your stand by joining an appropriate organization.
Dennis Ritchie donated the setuid bit patent to the public domain. That was, by the way, the first software patent... so that's a heck of a precedent. That covers the company against someone else patenting it (prior art? oh, just this other patent) without contributing to the problem.
If you know your material well and can find prior art, politely point that out for the short term. If you can't, you simply must accept in this instance, you likely explicitly signed over rights to this.
Long term, if you are so fundamentally against a core procedure like this, and will likely antagonize and be at odds with your boss over it, you should look elsewhere for a situation that you agree with. It sounds to an extent callous to say "it's the company's", but non-decision-making people have this sort of action as the counter-leverage. If the top talent tends to hate software patents, patent loving companies would have hard time attracting what they need.
XML is like violence. If it doesn't solve the problem, use more.
Please don't lose your job over this. The patent will most likely get filed anyway.
The law is at fault for allowing this class of patents in the first place. Use the law against the law. Find prior art.
Your name will go on the patent application, though. I'm not sure you could file it under the name of the lawyers instead ("I don't want my name on this" kind of thing).--That attitude is probably viewed negatively, and the consequences could also get you fired (only you would know since it's your workplace), or create a mistrust between employee and company.
If you are against software patents, the best thing you can do is get your own patents in the current state of things. Then you can choose to not enforce them, while having strong grounds to prevent anyone else from patenting it and suing you despite your work being prior art. (It can and does happen.)
In this case, that won't work at all. The second thing the company will want is for the patent to be assigned to them. http://www.wipo.int/sme/en/documents/license_assign_patent.htm has this to say on the subject:
Sometimes an assignment is mandatory, such as where employee inventions are assigned by an employee to the employer, or, in some circumstances, by an employer to an employee, and a license is simply inappropriate.
[...]
In contrast, an assignment is irrevocable.
An assignment involves the sale and transfer of ownership of the patent by the assignor to the assignee.
This transfer of ownership is permanent and irrevocable.
Just as when any other asset or property is sold, its sale results in the former owner being permanently divested of that ownership.
Nothing for 6-digit uids?
I cannot help you with legal advice or even the ethical question you're proposing. I can, however, tell you from experience that tension at work can really eat away at you. When it becomes difficult to look your boss in the eye, or when it becomes difficult to sleep at night because you're weighing a choice that could affect your employment, you're stressing, and it can really take its toll.
Here's something you should consider: The problem with software patents isn't that companies are filing them, it's that the patent office is letting things get through that are non-sensical. Hypothetically speaking, you could contribute to problems other people are having, or you could deny your company a potential defense against a patent attack from another company. Possibly this isn't strictly true in your case, but that's why there is an arms race going on with patents. "You're infringing on our patent!!" "So? You're infringing on ours!" "Oh, we should cooperate then..."
Maybe my comment there may not have a lot of basis in reality, but that's okay, it's not really critical to my point. You need to choose your battles. Remember, it's your boss making the decision to go forward with it, not you. If you don't do it, he can probably get somebody else who will. From where I sit, it's really a matter of whether or not you want to spend your life energy on it. That is, of course, your choice. But I'd hate to see you go down this path, go through the problems and stress it'll cause, and have it end not far from where you started.
I wish you good luck, and whatever happens, I hope you don't get badly burned. I've never been through the situation you've described, but I have dealt with employment related drama, and I can tell you that being sneaky just isn't worth it. Even if you win. It's supposed to be just about business, nothing personal, but it's hard to remove the 'human' from the question.
"I like to lick butts!" by MobileTatsu-NJG (#32700246) (Score:5, Informative)
I had a similar problem with a specialized data-replication trick I came up with. I noticed that the eventual data consumer could handle duplicates, so the replication could be simplified to an "at least once" guarantee.
I said that he could file a patent, but that I would find it professionally embarrassing to be named in such a patent.
Then he asked me to describe it so that someone else could file the patent and I explained in terms of undergraduate textbooks on transaction processing and replay logs with idempotent transactions. The invention was reduced to noticing that this bog-standard technique was applicable to our application, at which point he gave up.
If you worked for me and your project was done for the company, then you refused to follow the companies plans, then I'd severely discipline you. I'd actually probably just suggest you go work somewhere else. If it's that important to you, you probably aren't working in the right place in the first place.
IANAL, but I have consulted with legal firms over patent suits, and I've developed a different perspective over the years. First of all, don't presume that your boss' desire to patent your software is necessarily a bad thing. Patent portfolios are a valuable asset in the modern business world. Management may simply be thinking in terms of defending the company from lawsuits by competitors and patent trolls. A good portfolio is one of your best defenses in such situations.
Second, trying to use prior art to short-circuit the patent may not work the way you expect. First, the prior art you locate may become part of the application wrapper, and thereby strengthen the patent. Second, if you send an email to your supervisor saying "I based my idea on Widget A", and your company is sued by a company with a patent on Widget A, the other side may use your email as evidence of willful infringement.
Your employer has every right to patent your work, as others have pointed out. Whether or not you personally agree with software patents is irrelevant; the fact is that they exist, and companies are sued over them every day. As long as the USPTO grants them, everyone (including your employer) has to play the game by the government's rules, or else they may find themselves put out of business by a patent troll.
So, the boss obviously thinks the patent filing will increase the value of the IPO. They value your work. You work for this company and in return they pay you, and they own the IP you develop. The boss has to run the ship competently, and that means filing this patent. IMO if you refuse you should quit now and go find employment that is more to your liking, because the company is making the right decision and it is in everybody's best interest. Before you stomp off, consider this. If you refuse to help, you could make the IPO less valuable. I'll bet you have coworkers who have stock, and I'll be you do too. Do you have the right to refuse to help implement a good company decision that costs your coworkers money?
I hate being bipolar; it's awesome!
That is 100% wrong. First of all, the Slashdot asker might live in Europe, in which case he has even more rights to stand on. It is not uncommon here for employers stealing their employees inventions, making billions and then getting sued by the inventor for millions. If the invention is invented at work and if the invention is relevant for the work, an invention that improves the manufacturing process would be a prime example, then the company has a right to take ownership of the invention but must pay the inventor reasonable compensation. That is, a few percent of what the invention brings in.
If the invention is not relevant for work, a developer inventing a new blend of coffee for example, then that invention is the sole property of the inventor. The company has no right to it whatsoever even if the invention was made on company time using company resources.
IANAL, but I can Google.
Football Odds
You might be the one who did alot of the work but if it was done as part of your job then you don't own the IP - the company you work for does.
--- Users are like bacteria -> Each one causing a thousand tiny crises until the host finally gives up and dies.
This is actually very true! In my state, having a person do duties that is not in their job description is not permitted (unless the employee pursues that duty).
If a person is on track to be dismissed, having an IT person (for example) scrub toilets would be considered harassment, and that employee would have valid grounds for a lawsuit-- and would win in a court of law. This is basic 'human resources 101' stuff.
I am open source, and Linux baby!
Personally, I'd do #1, and seeing what their reaction is. If they are determined to patent your work, and you have a big problem with that, you should probably think about whether you want to keep working for them, anyway.
-Esme
Most of the advice you've gotten was how to screw your company - who paid you to do the work - and may result in your getting sued if you follow some of it around publishing your work.
Independent of why you want to avoid a patent on your ideas or my personal viewpoint of the patent system and how it's broke; if I was your boss and you pulled most of the stuff /. suggests I'd fire your ass. Why - because you've shown me you will first resort to causing problems when you don't agree with what the company wants to do; who knows when that will happen again and what the stakes will be then?
It's not like we are asking you to break the law; that would be different and a different approach is warranted.
OTOH; if you come and rationally voice your concerns I'd listen. I may not agree and decide still to patent; but I'd appreciate your openness and that you approached the issue in an adult, rational manner. It tells me you will speak up when something bothers you in a way that contributes to the solution, not compound the problem; I (and most bosses) would appreciate and value that.
As for those that will say "What if he is critical to the company" - those employees that are know they can speak up and their concerns will be heard; they are often sought out in advance for input. Unfortunately, to many people find out after they cross the line they are not as valuable as they thought.
So, I suggest you talk to the boss so he or she understands you concerns; but more importantly listen and understand their reasoning as well.
Ultimately it comes down to do I do it or quit.
I'm a consultant - I convert gibberish into cash-flow.
I just get really nervous when signing legal documents and my signature goes all funky. Jeez, you gotta make a federal case of it? He said "illegible".
I am not a crackpot.
What you need to do is look at the terms of employment under which you were employed.
If there is anything in it that specifically gives them the right to patent your stuff, then you should have considered it when you signed it.
Otherwise, and I'd imagine you read the employment agreement before signing it, they are going into territory that was not specifically covered in the employment agreement and as such you are now open to re-negotiations and a changing or extending the terms of employment to cover your stand. Anything prior to this .... well they would be in the wrong if they tried to make retroactive some change in the terms to support patenting of software, which were not there before. Just don't work in the country of Texas where they make up the law as they go along,
Software Patents are provably acts of fraud and are and will continue to diminish in standing. This can reflect upon not only the company but you as well, as your name would either be on the patent (in the event the PTO grants it a patent), or it would be in you full right to invalidate the patent by showing the person taking the credit is not the genuine creator of the software.
You should probably be looking for work elsewhere to cover your bases.
It depends on your employment contract.
A standard employment contract can be very explicit and direct on the matter of signing over your patent rights to your employer.
And don't think that being willing to give up your job would end the matter. If you refuse your employer could assert their rights over your invention in court, and potentially sue you personally to force compliance with this contract.
This is a case where you are clearly not going to win.
I think that the best way would be to tell your boss you're uncomfortable with this and ask if it's okay not to participate in the process. That would be best, and would work if you're on good terms.
Unfortunately, if you're asking the question here, I'd assume that's not the case, at least from your side, since you automatically try to go the forceful way, instead of negotiating a position that would be okay for you and not hurt your employer too badly.
- file the patent application - during the long period for approval, look for another job - start new job - file objections to patent application
If I am not for myself, then who will be for me? If I am only for myself, what am I? If not now, when?
when you put up the capital to develop a piece of software, you'll be entitled to decide whether to patent it or not. until then, you don't call the shots and must cooperate.
I can't believe how many of you are saying he should try to subvert the process and undermine his employer. If you don't like it, quit and find work in another field (say, flipping burgers), because you will likely find clauses in your employment contract with just about every high-tech company out there today. Patents are offensive and defensive weapons, and companies pursue them for a myriad of reasons (some of which people regard as "evil", /shrug).
What you are really suggesting is being willfully destructive to your employer. Period. In that case, go find something else to do. I hope he not only fires you (which is well within the company's rights in most places), but goes ahead and patents the idea anyway (assuming there were others that contributed to the ideas still remaining at the company -- you don't need ALL contributors on-board to get a patent through the system).
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.
--I'm so big, my sig has its own sig.
-- See?
You can, as so many have stated above, be fired for just about anything. One of the clearest reasons for termination is insubordination - refusal to follow clearly stated orders. Just as people of conscience once refused to discriminate in hiring or pay of minorities or to do any work associated with war, you can take a moral stand against patents by refusing. The ramifications will doubtlessly be both immediate and definitive - your termination for insubordination. Patents are legal and few have moral qualms about them. The likelihood of an outcry by your colleagues or the public at large is near zero. So it comes down to a personal choice, your ethics or your job. Jay
If you did the work as part of your employment you don't own the work, your employer does. As such they can do pretty much what they want with it. You can object (tactfully) but it's not up to you to file the patent, it's your employer's decision. Of course, it's a different story if you did the work on your own time and took it to your employer... you can or not file a patent as your beliefs dictate.
Given that your employer owns your inventions that you make while employed, you have absolutely no business refusing.
Your contract probably says that your employment can be terminated at will by either side, and that nobody (not you, not them) has to give a reason. If so, this isn't really a question about legal rights but rather one about what is likely to happen if you take a stand.
You could try to educate your manager about why you feel that applying for the patent is not in the company's best interest. Maybe, especially if you take care to be very positive and constructive in the way you show that you are really looking out for the company's interests, the policy will change.
Or not. It could be that if you really think about what the company needs, you will agree that it might after all be sensible to get a patent. You could think of it as the same kind of decision as paying your taxes. Just as you might wish for a better world in which the government spends money only on things you agree with, you might wish for a better intellectual property system that truly rewards genuine innovation and nothing else. But, for the moment, you might choose to go along with what is expected or required by your situation. Or not. Maybe it would be more satisfying to not go along with it. If so you have to live with whatever consequences arise.
Well, I realize that your post was meant as a joke, but the problem with using religous views is that they do not protect you from having to perform duties. If you are a bacon bits tester at World Famous Bacon Bits Inc., and you then convert to Islam and claim you can not eat bacon - you can be fired. Yes you are merely defending your religous beliefs; however, these beliefs interfere in your ability to perform a job. You are not being fired for being Muslim but for not tasting the bacon bits. You are free to choose any religon and that can not be used to discriminate, but your religous or ethical views can be used to fire you if they interfere with your ability to do work. It is partially subjective, but there are requirements that reasonable efforts be made. Requiring the saboth off can be worked around, but when the work requires you to break your religous views - you can not use that as an excuse to get out of the work.
On the flip side, if you apply for a job to be a bacon bit taster and you are muslim - they can not discriminate on that fact so long as you are willing to do the work.
btw, I am just assuming this is true - just vague memories of reading some things about this. Here's a link
http://clinton2.nara.gov/WH/New/html/19970819-3275.html
If you were to use the religious defense - which may not be unreasonable, the best it seems that can be achieved is that you find someone else in the comp to complete the patent process and find a way for you to continue doing work without getting involved. If your involvement is needed, then you still don't have a means out.
When all else fails, try.
You will have to patent it should your manager remain adamant (as a work for hire, it probably belongs to them already), but have you tried simply explaining your position to him/her without actually saying "I refuse to file"? If your manager disagrees, then you're no worse off than you'd otherwise be (i.e., you still have your job, but you still have to file), and if your manager agrees, then you've avoided the whole mess of giving an untenable ultimatum.
Also, is this your manager's final decision, or is it decided further up in the chain? You'd want to talk to whoever made the decision in the first place.
A subsequent question would be, can you live with a job that you've sued your way into keeping? The idea of legally contesting a dismissal has always bothered me. The company doesn't want you there anymore, and the state/nation has decreed they have to let you stay... that has to be awkward.
Maybe I'm being naive, but this seems like something that you could just bring up with management? The boss hopefully cares about employee opinions to some degree anyway, and I doubt you'll face the axe just for posing a carefully-worded "what if I were to refuse" question.
You developed the technology as part of your work, work that you got paid for. Therefore, the technology belongs to the company and they have a right to patent it. Generally, employment contracts require you to file patents.
If your employment contract doesn't require you to file patents, you can legally get away with not filing a patent, but the company may still choose to terminate you.
What you can do is negotiate about it and try to convince the company that filing bad patents is bad for business. You can also try to minimize the damage by making the patent clearer and more specific. And if the company has unreasonable patent policies, you yourself may want to look for a new job.
What it comes down to is terms of employment. If you have a contract, than the issue of patents is probably spelled out in such a contract. If you are an at-will employee, that means that your company can fire you if the powers that be do not like the color of you pants let alone refusing to take part in a process that could or could not enrich them.
What will happen if you refuse is that not only will you be fired, but if you signed a non-compete agreement, you can be sure that the company will pursue that avenue as much as it legally can to make sure you do not work to break you. They will also pursue all other legal avenues just to make your life difficult. As for the patent, I am sure you worked in a group and as such, will simply get someone else to put their name on it using you as an example on what happens if they refuse.
The truth of the matter though is, if you did the work on company time and it was a company project, then it is their idea and work, not yours. You therefore have to follow the company directives on that work.
What I would suggest is doing the objections thing first. If that does not work, they vigorously try to find any prior art that would cause issues with the patent office. I am sure you could find something through IBM's portfolio if you look hard enough.
The other step would be to consider a job change. The big companies may seem to be leaving the USA but many small/mid-sized companies that are private are screaming for programmers. They are more likely to understand a person who lives by principles. In other words, start looking for another job or method to earn income. If you leave this employer on good terms, then at least you may have a chance of negotiating your terms of discharge with them.
Generally you might want your name on a patent so that you can put it on your resume. See if you can negotiate extra compensation for the patented ideas.
Establish existing prior art by searching for it and reporting this to the various people in the company and with their lawyers.
Establish your prior art if applicable. If YOU used the idea before you may have extra rights for the negotiation for extra compensation, especially if you developed these ideas BEFORE you were enslaved, oh, pardon me, employed or contracted to the company in question that has dreams of global domination.
PUBLISH the ideas that you are working on at work in peer reviewed computer science journals and web sites and blogs to explicitly put the ideas and techniques into the PUBLIC DOMAIN. Do this as a matter of course in your career. This is of course a necessary and required activity to assist in the development of the ideas to move them forward at the company with the assistence of other professionals who provide you their consulting expertise at ZERO COST to the company!
The benefit of "open idea exchange" to your company is huge if you communicate ideas of substance and interest to others. You can actually estimate the benefits of others contributions to your company and present these to your bosses (slave masters and evil overlords to some).
Whenever you sign your life away working as an indentured servant to a corporation as an employee ALWAYS exclude your PRIOR ARTS AND WORKS from control of the contractual agreement and the laws regarding your property becoming the companies. This usually means appropriate verbiage within the contract (employment, consulting, contracting, slave, indentured servant, etc...) body itself PLUS an EXTENSIVE AND DETAILED YET NOT LIMITED LIST OF ALL YOUR WORKS SINCE YOU TOUCHED A COMPUTER KEYBOARD or wii controller (as that could be the next way to program a computer). I've done this for decades now and no one seems to have any problem with it as long as their business interests and mine don't overlap 100%. It won't always save you but it's important protection for yourself especially if you are an employee who they own, brain, balls, and all. Exclude your private activities from their grasp!
Give them their fantasy patents. It could be good for your career.
Or not. Don't give it to them on principle but consider the impact of not having a job and how to spin it with your next slave master. You do want a house, or to keep your existing house? What are your goals in life?
Research everything possible about the area. Give them the patent but tie them into knots so that you're benefiting somehow. Even if they never get the patent you'll be their go to guy for patent applications from a technical point of view.
Read other patents. Warning that will get you into trouble as the awards are up to three times when you've read competitors patents! Read as many patents as you can and inform them of the ones you've read. Print them out and leave then on your desk at work. Send related patents to the lawyers. Publish articles about the patents that you think are related and get intertwined in the process.
If all else fails bend over and kiss your ass good bye from that company of scum bags.
Remember that they can fire you for almost any reason but you can sue them for almost any reason as well.
This is not advice. Certainly following these ideas could get you into a world of legal troubles and cause your life to implode with lawsuits, divorce from your significant other, and could be a career endder. Or it could make you rich beyond the dreams of averace as Bones would say. The risks and rewards if any are all up to you.
Remember you're sucking on their corporate teet (or cock or whatever) and need to be nourished too. You want your CUT! It's the American Way! Remember they are there to give you what YOU want! If you don't look after yourself who will?
IP comes in a lot of forms including trade secrets, customer database, brand names, trademarks, copyrights & patents, but it is real, and it is the job of every company to maximize its value for shareholders.
If you basically don't go along with the concept of creating shareholder value, then you don't belong in the private sector, where employees must remain committed to contributing to the formation of a better and ultimately more valuable company, which ultimately provides more benefits for the employees that support the company.
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.
Send him the link to this slashdot discussion.
"It is our choices, Harry, that show what we truly are, far more than our abilities." -- Prof. Dumbledore
Bottom line; you can be fired for just about anything. Do as you're told; or, don't, and start looking for another job. General Rule: Don't start a battle you're not prepared to fight to the end, no matter the outcome. In this case, there is only one possible outcome... you lose.
...are more important to our society than the value of contracts then by all means, go ahead and violate your contract. But next time think before you accept money in return for something.
Doesn't it make you feel good to know that our freedoms are protected by politicans, lawyers and journalists.
Comment removed based on user account deletion
The product isn't owned by you, it's owned by your company. They can do with it what they wish.
If your on friendly terms, you might bring it up as an interesting topic of discussion at a meeting or over a brew at the bar after work...but that's as far as I'd take it. If he stands firm, drop it. If you want to make a stand for your ideals, you don't do so by arguing with someone whose made up their mind.
You do so by either forming your own company so you do own your own work or shopping around for a position at a company that shares your ideals.
What you do at this job is bring it up at a meeting if you can get away with it, if your shot down, you eat crow, and do the best you can to get that paten for his product. It's your job and it's the terms you've accepted. Do it to the best of your capabilities. If you don't like it, move on and let them know in professional, courteous way you're taking your talents elsewhere due to this conflict in policy.
The purpose of the Patent system isn't to fund lawyers or IPO's but to provide short term protection to encourage inventors to share their new ideas. These ideas then end up in a public forum where other inventors can see the idea and either incorporate it or build upon it - all to advance the success of the country.
Frivolous lawsuits are a result of problems in the court system - "get out of my court with your hot coffee spill claim, buy iced tea next time" - you won't fix that here.
You can always seek a "defensive publication" where the invention is disclosed via the patent office but no patent is sought. There is no real expense to the company doing this (maybe a nominal insertion fee compared to the huge expense of a regular patent + required lawyer billable hours to put it together). That way no one else is able to patent your idea and lock your company out (hence the "defensive" name).
The IPO guys love patents and other IP and value it highly, but often they don't know how to be accurate on this valuation (they are typically just bankers or MBA's without Ccientific/Engineering technical degrees and only real training in finance calculating time-value-of-money).
What can you calculate as the possible long term value of your patent? That will decide more what to do with it.
> You have to do that as part of the patent application process anyway!
Actually, no, you don't. You have an obligation (and it continues right up until the patent issues) to disclose any relevant prior art you know of -- or, for that matter any information you know that could affect, in any way, the patent examiners decisions.
But you are under no obligation to go *looking* for that information. That's the examiners job.
Of course I'm not a lawyer, but that's what they tell me when I do file patents. (yes, I'm an evil software patenter -- there goes my karma)
Your lawyer may say something different -- if you are filing a patent, I suggest you listen to him, and not me on this subject :-).
Back to the original subject at hand -- if you do find prior art, it would save the company money by not patenting -- which does cost 10 to 20k per. And whether you send this notice by email or not, you can and should insist on meeting your obligations under law to disclose that prior art to the patent office when and if you file for a patent.
Ian Ameline
You can convince a civil rights attorney that "freetardation", or the retardation of your intellect due to being completely zealous about free software ideals beyond the scope of normal advocacy, is a handicap. If you can, you've got a winner. Better yet, convince the attorney that your free software zealotry is actually a religious movement, and you've got money coming out of the wazoo!
You can be fired for wearing a shirt that's the wrong shade of blue. Of course the official reason will be something like "not a team player" or "not fitting in with the corporate culture", but you will still be fired.
Look, everyone else is filing software patents. File your patent now. If you can then convince your company to license your work for free, great. If all software patents finally get nullified, even better. But while your competitors are availing themselves of the stupidity of current patent law, it's vitally important that you do so, too.
Grace periods are only used in the US, they have been considering harmonising with the rest of the world, but you know, they _are_ the US.
They'll probably get right on it after decimalisation is fully implemented (in an inconsistent way to how it's used everywhere else of course).
</overly-acerbic-comment>
.
Unless you are Wile E. Coyote, Super Genius, the answer - will - be no.
A lot of people are talking here about "they can fire you at any time". Well, that cuts both ways: you can fire your employer at any time as well.
It's not easy to find _competent_ people, so they stand to loose as much as you if not more.
Keep your options open, hunt around and do not allow yourself feel bad about your job. It's better for your long-term health and self-esteem.
Change the following sentence to "working for someone as a serf is not about innovating, or being creative. It's about producing enough to cover you ass..." and then I'll agree.
The main part I disagree with about is that it isn't really just a choice between unions or flexible workforce. How about union ownership of companies? How about non-vertical integration of companies? What's with all these straw-man arguments that unions and anti-union folk spit up?
If you think your company is so mismanaged that they are promoting people that just cover their asses, perhaps you should start your own company and try to hire managers. The truth is most human beings like to cash paychecks and cover their asses. This applies to union members, non-union members, and managers, and most workers in general.
The other truth is that it's damn hard to make money, but once you figure it out, it usually seems easier to make more by "hiring" people. However, finding these mystical altruistic people that like to work hard is nearly impossible. Even if you found such a person, then you usually can't afford to pay them enough to stay and you don't really want to promote them either because either they probably aren't very good at managment, or promoting them to management gives them a meglomaniacal complex. Sadly as a manager-manager, you have to promote someone (because you can't manage everyone yourself). So as you start thinking like an ass-covering paycheck-cashing manager, manager, yourself, you do the safe thing and promote another ass-covering paycheck-casher that is the least of all evils to save your own butt. See how that works?
You talk about it as if this is somehow a new world order. They don't call it the rat-race for nothing. That term has been around for quite a few ages...
Why do you think so many people go out and start their own companies? Even in more modern times, you can talk about Fairchild and Intel, or HP and Apple. I don't think there were any unions or "flexible" workforces involved in either of those happenings.
Aren't interested in starting your own company yourself, well perhaps you aren't so different from us the ass-covering paycheck-cashing masses. Feel better now? ;^)
the patent - it's actually good for your resume no matter how you slice it
Actually, I generally view these as a strike against the candidate.
"Not an actor, but he plays one on TV."
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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.
Stop-Prism.org: Opt Out of Surveillance
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his employer is aiming for that IPO but trusting enough to let a rogue employee sabotage his patents?
not in this world, baby.
But you are under no obligation to go *looking* for that information. That's the examiners job.
I asked a patent lawyer friend of mine about this today, she said while there is no requirement to look for prior art, the court is allowed to hold it against you in a later infringement action.
I am proud of you for sticking to what you believe in. In theory, it depends a lot upon what state you live in. Some states are more employee-friendly than others. Arizona, where I live, is very much employer friendly and is a voluntary work state. Basically, in a voluntary work state, their is no contract between employer and employee and employment is at will and can be terminated for any reason. You might consider asking yourself the following: "Ss a company that does not live up to what I consider moral standards worth working for?" This may be the chance to take your innovations and run with them.
In the US:
You can only protest but, if you refuse to apply for the patent (or cooperate with the lawyers), you can be fired for cause. In most states this would prevent you from filing for unemployment insurance. If you get caught sabotaging the application you could get fired and you could face civil penalties. This may hurt you search for a new job.
My advice to you is "Don't do anything stupid." Make all of your statements in writing. Document EVERYTHING and keep copies outside the office. If you are strongly opposed, get your own lawyer to talk to BEFORE you do anything.
You can try to portray the work as common art but if they want to they will file anyway and hope for the best. Did you get any of the ideas or help from a public forum or a book? Make sure that all of this is disclosed (in writing) to the lawyers. If they don't include that as prior art then the patent may not hold up in court.
Good luck,
I'm amazed that people are taking this person seriously. His employer is asking him to perform a duty that is legal and probably within the bounds of his capabilities and function. He can choose to either comply or not comply. Based on whether or not he lives in a right-to-work state, his employer can choose to fire or not fire him if he refuses to comply. It's simple.
My suggestion is to get off your arrogant high-horse, shut your whiny mouth and do your FUCKING job instead of spending all your time reading slashdot and wondering if your evil employee will fire you for refusing to get the fuck back to work.
Just BCC to a Gmail account.
1 months later google patents that idea...
I Kid! I kid!
You must write this patent, and do the best job that you can! This is the natural order of things - to exploit a niche in the system that allows an 'unfair' advantage. The only way this will reach an imbalance necessary to force a new equilibrium. The longer we put this off, the longer it will take to correct. The same goes for global warming, which is now inevitable. We could speed this along too if everyone would just burn their house down.
I am trying to do my part by writing a patent on a method for computers to write patents without the aid of human intervention. I call these processes 'patenators'(tm). Once they begin their unstoppable march toward filling the patent office with googleplexes of patents, humanity will change their concept of intellectual property and reach a new equilibrium of freedom in the exchange of ideas. BTW, I will be richer than Bill Gates, King Saud, and Exxon at $4M/barrel, but that is another equilibrium problem . . .
You work for a company that has a policy to which you are ethically opposed. Why don't you grow some balls and resign?
All I want is a secure system where it's easy to do anything I want. Is that too much to ask ~~ Randall Munroe
Every state is different. My home state is Florida and here an employee serves at the will of the employer. Put plainly an employer in Florida can fire you just for the fun of it without fear of penalty. You may even have a huge and expensive battle getting the employer to state why you were fired. There are a few exceptions such as race, age etc. or being a whistle blower who has reported loss of tax dollars by a public contractor or entity. But those are tricky waters. Keep a good lawyer on hand at all times and consult him frequently.
To me there are simply two questions:
i) Is your code written at your workplace your intellectual property?
ii) Does your job description mention the filing of patents?
This gives us four permutations with about three outcomes.
if (i) == "yes" {
You can do what you want with your code.
}
else {
Your employer can do what they want with your code. However your participation in the process can be limited by (ii)
If (ii) == "no" then {
You can say "My job is writing code, not filing patents".
}
else {
You can't say anything - think twice before you apply for this kind of job again.
}
U have to file patents in business. The days of federal subsidized student loans are over.
Not entirely true. You're only protected as long as your religion doesn't impact your work.
If you convert to a religion with more religious significant holidays than the company is willing to allow, you can still get fired. IIRC, some neo-pagans have experienced this, trying to get all sabbats, esbats and new moons (a total of some 20 holidays, depending on the year).
And if you're a devout Sikh, you can get fired for wearing a knife, even though your religion demands it of you. Or get fired for refusing to cut your hair if the job is of a nature where long hair can be seen as a risk.
"Can I be fired for exposing my company to huge losses because I did not protect their investment and forced them to pay out a large sum of money to use their private research when a patent troll filed it first?"
You're asking a legal question anonymously and with inadequate background in a public forum not known for its big lawyer population... Keep in mind that my answer and most of the others you get here are potentially very wrong because of the lack of background and (at least in my case) only an amateur's understanding of the law. I should also add that most of what I'm saying below is not applauding the state of affairs as I understand it, just explaining it.
There are many differences between countries and almost as many between US states. The wording of the post hints at a likely US context, so I'm bloviating on the basis of that assumption. For most people in the US, a job is entirely "at will" and your employer can fire you for almost any reason other than your status as a member of an explicitly defined "protected class" covered under civil rights law. No federal or state law deems "software patent opponent" a protected class. Even in states with more extensive employment protection, it is almost always the case that anything an employee creates for an employer which is legally protectable as any sort of "intellectual property" is (with or without any formal IP agreement) the sole property of the employer, and a job that includes creating such valuable "property" as a primary role could easily be argued to include a responsibility to support the employer's protection of that value. Beyond that, many employers protect themselves from ever having to prove the arguable issues of law or fact in such cases by having employees sign a bunch of employment terms and IP handling stipulations when hired or even periodically in order to assure that everyone understands their status and remembers it. If you've signed an agreement stipulating that everything you create for your employer belongs to them and that you will help your employer defend its rights to those works for hire, you have no legal (or ethical) standing to change your mind when actually asked to do so and expect to keep your job.
That said, others have pointed out some good options for you. If your opposition to this software patent is primarily based in an article of faith that software patents are bad, you might not have noticed the pragmatically stronger opposition to software (and business process) patents: that they almost never truly fit the ideal conceptual model of what patents are supposed to be. Software patents have largely been issued without adequate expertise and understanding by the USPTO of how software is created and what actually constitutes originality and real invention, so many are conceptually weak. If you "assist" the patent process by explaining how trivially derivative the "invention" was based on lots of prior art, you may kill the whole thing.
And yes, you probably could be fired for that too, but if you are careful and make it clear that you are just being conscientious about keeping the company from wasting effort on a doomed patent, that's not so likely. If you approach it as a tenet of faith that software patents are bad and wrong and you will have no part of them, you should bring a box to work with you that day to carry out your personal belongings...
You can and should be fired. Feel how you may about patent law and the like, in the real world you need to protect you and your company's innovation. Ultimately your just going to end up screwing your company. Just because your some white knight on a a valiant steed sure as hell doesn't mean the employees in your competitor's companies are.
In all cases like this, there is one question that needs to be answered first with absolute clarity before you can decide what to do next. The question is, "How much is your integrity worth to you?"
...but if you haven't first decided how much your integrity is worth to you, then you have no hope of answering the secondary questions without ambivalence or without lack of motivation for action. If you are unswerving in your integrity, you'll fight this even if it's technically out of your hands. But if you're like many people, you'll compromise to some degree, and fight up until the point to where it is not worth it for you. No one else can answer for you what you are willing to live with. Not even lawyers can help you with that part.
There are tons of secondary questions that make it harder to come to a decision...
1. How *much* are you willing to risk to lose for the sake of your principles, and perhaps justifiably so?
2. How *much* are you not willing to risk?
3. Is it self-centered to only consider your own sacrifices, or does morality truly mandate your actions toward a greater good?
4. Could this become a non-issue if you could persuade them to do otherwise?
It is important not to confuse one's personal beliefs regarding to patents with the fact that they are legal and the employer has the legitimate right to apply for one and the guy has the obligation to pursue it as part of his duties. So, the only honest thing this guy can do is to express his concerns to his boss and, if he still wants to apply for the patent, resign.
Take a look at the contracts you signed when you started to work for your company. Almost every tech company includes in their contracts a clause that says, in short, anything you make for us is ours. This means that if your manager wants to try to patent your work, he can; the company owns your work that you do for the company and has the right to do whatever they please with it. The company can delete it, patent it, make it open source or sell it to another company as they see fit.
The only real way around it is (as others said) try to find a way to point out that the patent wouldn't hold up in court. That, or find a new job if you disagree that strongly; but I almost guarantee that every other tech company out there has the same clause in their contracts (and it has held up in court).
Some employers require you as a condition of employment to assist in any and all patent and copyright procedures. In short, yes you can be. If I were you I would talk to a lawyer to see what your rights are.
Gjc
Gregory Casamento
## Chief Maintainer for GNUstep
Yes. You chose to work for them, under contract, and your inventions are theirs. They can choose to do whatever they want with your work with impunity -- they could build WMD from your idea if they wanted to, and you wouldn't be able to do a darn thing about it.
/will/ happen, but it will be that much easier to contest, and overthrow.
But if you truly are the innovator at your company then...
1) Dawdle on the patent app.
2) Get your finances together.
3) QUIT!!! -- and become a consultant.
Then, you get to make the rules.
Also, because your peers likely do not understand your invention as you do, they are likely to mess up the patent application. The patent
Do not worry about at will-employement or being fired but just have a simple and empathetic conversation on how you feel.
Bosses respect this and like it. If I were a boss I would like this from an employee as I would not want to fire anyone or see someone leave unless absolutely neccessary for the good of the company. It costs money and hassle to fire and hire new employees.
Its possible your boss is just setting a defensive patent in case of a lawsuit which is a good idea.
Just do not say anything stupid like threatening to quit.
If you can't do this with him or her then look for another job. Look not because of the patent issue but because the boss is an asshole if he wont listen or will fire you for your opinion. No one deserves this and the boss shouldn't be a boss. It sounds like a good idea.
Remember the company will file that patent with or without you. But a conversation may open their eyes and make you look better as they know if you have any problem in the future they can just talk to you to fix it.
http://saveie6.com/
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I don't think it is quite that simple:
Invention in the U.S. is generally defined to comprise two steps: (1) conception of the invention and (2) reduction to practice of the invention. When an inventor conceives of an invention and diligently reduces the invention to practice (by filing a patent application, by practicing the invention, etc), the inventor's date of invention will be the date of conception. Thus, provided an inventor is diligent in reducing an application to practice, he or she will be the first inventor and the inventor entitled to a patent First to file and first to invent
The telephone will serve as an example:
Bell patented his invention as soon as he had a workable solution - and then he and his partners put the pedal to the metal.
Demonstrations at the 1876 Centennial Expo in Philadelphia. The first commercial telephone exchange in New Haven, Connecticut, in 1878.
In other words, they are paying you to create the works for them. They own the rights to them. Your feelings are irrelevent. You don't own the rights to it.
There is no "-1 offended" or "-1 you don't agree with me" mod options for a reason.
I'm gonna lose tons of karma for this, but yeah, you can, and probably should.
You work creating intellectual property for a private company. (You may have invented it, but you don't own it, the company does: google "work for hire" and learn.)
Obstructing the company from managing that property (whether explicitly or in secret) is clearly anithetical to your job description.
If you find the idea of software patents unethical, may I suggest that you need to find a new employer, as your ethics clearly don't align.
Well I am a Patent Agent and the bad news is that your boss can file the patent, in your name, whehter you like it or not. You are the inventor but the company owns the rights, unless you specifically got them to sign them away (very very unlikely). Better just try and find something published more than a year ago that discloses your idea. That will stop the patent. Just inform your legal department. You are obliged to do this anyway.
They will fire you and file them anyways.
Unless you are in an odd spot, they own the code you wrote.
You want regular paychecks and to work for someone else, you play the game.
The Kruger Dunning explains most post on
The short answer to your question is yes. You can be terminated for any reason which - depending on your locality - isn't illegal.
Failing - refusing - to perform duties assigned to you by your supervisor is grounds for termination
The only way firing you for failing to perform duties assigned to you by your supervisor or manager is not grounds for termination, is if the task they asked you to perform was in and itself illegal.
So, they can't firing you for failing to kill someone or refusing the sleep with the bosses' niece's best friend.
Filing patent applications is a standard business practice and has certain benefits. It is completely within their rights to require you to file that application.
Yes, you have moral objections to filing the application. Just like pharmacists who have moral objections to filling birth control pill prescriptions or dispensing RU486. And just as they can be terminated for not performing their job tasks, so could you.
If you think this is a bad patent (not that software patents are bad) then make sure that you communicate the issues you see with it. Be clear, concise, and professional.
But at the end of the day, you need to either assist in filing the application or walk away from the job.
And walking away from the job may not protect you. If you signed an IP agreement upon hiring, you likely agreed to assist the company in the filing of any patent applications related to the work you did which the company chooses to file.
Jordan
Companies can not file for patents. Only people/inventors can. Check it out!
Over-the-top Response Guy! Giving "Over-the-Top Responses" since 1970.
Who advocated that? Not me, and I'm the "idiot" you were replying to. Attach your rant to posts they're relevant to, fuckhead.
Only the inventor can file for the patent. Not the company. If he chooses not to file, the company (nor anyone else) can on his behalf. He can be fired though.
Over-the-top Response Guy! Giving "Over-the-Top Responses" since 1970.
Briefly, in general the main use I've seen for patents is to convince investors that a startup has "something", when in fact they do not, or as a stick to beat other companies with, when they've got nothing else (like a viable product or even a great idea). Basically, in my mind, based on my experience, software patents are guilty until proven innocent.
"Not an actor, but he plays one on TV."
It is my understanding that patents were created to help disperse the information (invention) discovered.
Yes, they protect the inventor but everyone else gets to see exactly what they have created.
Patents don't last forever.
Being fired for non-cooperation in patenting can have other negative consequences as well. Among those are loss of benefits, inability to find new employment, loss of stock or option grants, loss of matching funds in retirement accounts, etc. Get a lawyer - one who specializes in employment law - BEFORE you go down this path. Do NOT go to the company's lawyer. The company's lawyer represents the COMPANY - NOT YOU.
Laws affecting technology will always be bad until enough techies become lawyers.
In some countries (European ones are a good example) governments prefer to protect employees from bosses firing for no reason because otherwise you get inflated unemployment figures. In the UK for example you have to have a reason to fire someone and it has to be fair. Even in the case of redundancies you can't get rid of the people you dislike under a lot of circumstances, you have to be able to justify why you've got rid of them if they've been there longer than other employees, you have to justify why you got rid of them if they perform better than other employees and so on. In other words you can't get rid of them if they're a good employee and you don't have good reason.
You can't even get rid of them by trying to make their life hell and making them want to leave because providing they've had the sense to document and get as much evidence (i.e. copies of e-mails) of all instances where the boss has made your life hell to try and make you leave. An employee who has had his life made difficult more so than other employees and who has evidence may choose to stay or leave the company and go for a constructive dismissal industrial tribunal. Payouts for succesful cases are often large on the order of 10s to 100s of thousands of pounds, this often acts as a good deterrent for bosses not to be particularly malicious assholes to employees. Realistically if you do stay in your job and file an industrial tribunal for this type of thing you'll probably find you have no future at that job anyway, but chances are if someone's boss is screwing them over regularly enough for them to file a tribunal you wouldn't have much to lose in that respect anyway.
I'm not sure however that even if these kind of laws were applicable in the country the poster lived in that not liking the patent system is grounds for avoiding the sack. When I was working in IT support I didn't particularly like users but I'm not sure I'd have got on too well if I'd refused to speak to them.
Chances are your employment agreement states that anything you invented while employed with your company is the sole property of your company. Employment agreements are actually pretty crappy in this regard. If you had a million dollar idea that was completely unrelated to your work/employer, and even if you develop it on your "own time", quit, go into business by yourself, etc... your (former) employer could actually sue you and win. With regard to ethics, if 100% of your project is closed source, by refusing to assist the company with a patent you're basically being insubordinate and refusing to do part of your job. A company has every right to patent and protect their IP. Patents don't have to stifle innovation. They're used to protect ideas and a company's ability to make money. Doesn't a company have that right? Also, look at the MPEG consortium. MPEG is a patented technology. If you use the technology in a commercial application, you must license the technology. But you can still write encoders and decoders and distribute the source freely for educational and personal use. Why shouldn't the members of the consortium be entitled to a piece of the pie? And we, as knowledge thirsty hackers, still get to learn all we want. On the other hand, if some piece of the project is open source, I think it is important that your employer respect all the terms of the relevant public license. In this regard you should explain the principles of the matter. If they don't abide, you could actually go to the FSF or something. In either case, either party's refusal to comply with their duties will quickly lead to your resignation.
To answer those toughies, you need a good lawyer. Not slashdot.
That's the answer in 90% of these dumb "Ask Slashdot" hypotheticals.
But as usual, the real question is "What should I know before talking to a lawyer?"
you can and should insist on meeting your obligations under law to disclose that prior art to the patent office when and if you file for a patent.
Assuming it is prior art. It's up to the lawyers to decide if it counts as prior art or not.
In most businesses your work is not considered your own. It belongs to the business. Therefore you really have no say over the work you produce. The company owns the copyright on your work. If they decide they want to patent it, they can. Quite frankly, they don't even need you to do it. That is, unless it states somewhere in your company's policies that you share some ownership of the works and ideas you produce. In some businesses, like in higher education, the worker actually is assumed to own their work, though this is even changing in higher ed. I suggest you read your company's policies very thoroughly. Unless it says you get part or all ownership of works done while on the clock for your company. Most likely you are screwed here. You have two choices. First, you can leave and find work for a company that shares your views (good luck on that). Or 2. You can suck it up and do as you are told. In today's work environment, there are probably a number of people waiting for your job already. Hate to be the bearer of bad news on this one (unless you can afford a very good lawyer). While I agree the current patent system is whacked, and wasn't ready for the modern age, I also don't think it is going to be completely dissolved. Problem is, I haven't seen any decent recommendations for replacing it. Good luck in this decision. It is always tough when you have a problem with your company and work you have put time and effort into. I WOULD ask myself one thing though. Is this patent a genuine one? Is this something that will protect the company from getting cheated of the time and money they have invested in you and the product? Or is it just a cheap patent throw, hoping that they will be able to sue someone in the future? If it is the former I would relax. Your business is just doing what it has to to protect itself from getting screwed over by another company that wants to make profit without putting the work and effort you have into the process. If it is the latter, I would be asking myself if my personal ethics can allow me to keep working at the same company. Regardless of what you think about software patents, your company must follow the rules of business as they exist. Otherwise someone else will file the patent, and essentially steal your work. Don't blame your company for the patent problem. They are just trying to make sure they don't end up getting the short end of the stick on this one.
Open Source: Eroding the Digital Divide
If the submitter wants to keep their job without creating patents then it's not a problem. Just point out prior art as others have mentioned already. If they file anyway then they will be committing an illegal act if they hide the prior art that you include.
The biggest problem for me with patenting one's work at a company is that it means you can never again use the idea you came up with if you move to another company. That's bullshit.
That's why I only ever use open source libraries and free or cheap tools at work. If I use an expensive tool or costly library then I will be learning to use something that is unavailable to me outside of work.
Cow Cube
You absolutely have a choice, or had one, when you started to work for the company, and signed papers, and got paid. If you want to stand up for what you believe about IP ethics, now is a pretty shitty time to do it. If you're not okay with the company policy, quit. If you can't quit because your job is too valuable, then that's the extent of how important not patenting your work is to you. You don't try to return a steak for being overdone after you've eaten 3/4's of it, at least not if you have any integrity. On the other hand, if you didn't sign papers, or if this policy wasn't made clear to you, then - obviously - you have grounds.
Can you be fired - yes ...
For refusing to file a patent - maybe ... but ...
If you are fired, then your boss cannot file the patent because _YOU_ are the inventor.
Filing a patent without ALL the actual authors, or with any authors who did not make a contribution, automatically invalidates the patent.
My name is on 12 patents. Mostly electronics, though one can be construed as a software patent. I would rather not have my name on most of them, and many result from the same situation you are in.
With my first employer, this was in my original contract years before I gave any thought to it. When I did, I said "no patents, or I quit". I did valuable work, so the quid pro quo extended another 5 years (the sneaky patent attorneys did get a European patent on some of my work, and never told me or my coinventors, but ...). When I finally left, they took out four US patents on the stuff in my notebooks, and threatened legal action if I didn't go along.
Then I helped a startup. They took out three US patents on my work for them. This time, to refuse would have torpedoed the company. In time, the foolish V.C.s torpedoed them anyway (high growth, high profit, market dominance, but the product was hard to explain at IPO - so the VCs made them work on easy-to-explain but low value products).
Then I consulted. I started putting "no patents" into my contracts. With one startup, that resulted in a four month delay in contract approval, resulting in a delay in further work. Which meant the startup was missing essential skills, the prototype failed, and so did the startup.
I learned to make my ideas look like someone else's idea at the clients. There were still some patents filed, but at least my name wasn't on them.
Now I have my own company. With four patents. And three on the way. I hope to release four of them into some kind of "public patents commons" arrangement, if I can find an organization that can leverage them properly into more public patents
I would rather that all patents go away, even if the global abolishment means the three I expect to continue to draw income from go away also. Sadly, in the world I live in, the alternative structures just aren't well developed, so if I don't patent an idea, a competitor will, locking me out of using my own idea. Or a client will treat the work and customization I provide them with as less valuable, because they notice "IP" more than they notice "good product". That is a cultural problem which I cannot fix myself. I hope to help with the fix, though, and I am always looking for alternatives.
I have managed to get a dozen or so potentially patentable ideas released directly into the public domain, mostly through publication in professional journals, and professional standards work. This is the best route available, given the existing situation. So:
Publish. Teach. Participate in standards bodies. Share all the ideas publically that your job permits. Write open source code. Use open source code, and attempt to make it the way things are done where you work. At the end of the day, those who want to contribute ideas to the public should just do it. Frequently. If that is not your job within the organization, morph your job until it is. If you cannot morph your job that way, find a new one elsewhere.
In the golden age of U.S. science, many great ideas were publically shared by scientists and engineers working for private companies. Many Nobel prizes resulted. Companies shared this work because it helped them hire the best, and showed their customers that they did first rate science, leading to first rate products. That age seems to be ending, but I think that is because the researchers value their salaries more than their scientific reputation. Now open source software seems to be heading into that golden age, and it will only stay that way if software innovators value their reputations more than the size of their paycheck. I respect the hell out of these people, and help out where I can. But it is a tough choice, it means forgoing some lucrative jobs, and if you have a family to feed, there is no easy answer. You have to decide whether you want to eat well, or sleep well.
Keith Lofstrom server-sky.com
Now, my concern is: what kind of consequences could I bring on myself for refusing to support the patent process?
To answer your question: if you don't do your job as described in your contract, you can get fired. According to most contracts I have seen (this is in EU, may be different in the US), the company owns your work; they buy it of you for the salary you receive, sort of thing. Much as I am disgusted by the whole idea of SW patents, I don't think you can outright refuse, unless you are willing to leave your job.
But as others have pointed out, there are legitimate ways to work against this. If your employer is at all reasonable, they won't fire you for voicing your opinion, and there are many valid reasons for not playing the patent game. In my view this kind of patents will turn out to be a waste of money, unless they can profit from it immediately.
You are obviously tainted and not working in the best interest of the company. You have a job to do, and you should do it and not complain. That is what you are being paid for. When you put your own interests ahead of the company's interests, that's the point at which, as far as I am concerned, you no longer have a place in the company.
As a manager, If I even found out you had an anti-patent political position, I would probably terminate your employment on the grounds that you might sabotage the patent process.
Just how hostile is the average American working environment compared to other 1st world countries?
I love all the nuance people are suggesting. Forget that. Do what you believe to be the right thing. Don't lie about the situation - just do what you believe needs to be done. If you are fired or have to resign for sticking to your beliefs, so be it. It's happened to the best of us.
At will employment is for both parties. If you are asked to do something that is against your beliefs, then simply don't do it, dust off the resume and get yourself a raise. Believe it or not, many companies look for people who have courage and integrity. We call these people leaders.
-- $G
What's so hard here? Just tell your boss your position on software patents. If he insists that this be done and it means that much to you then you should start looking for another job. If your boss really believes in this you will be asked to file patents on your work again.
Is this something you really believe in? Are you really going to feel comfortable speaking against software patents when you agreed to file one yourself?
Whatever you develop on the company's dime is their intellectual property. You rprobably signed an agreement stating this fact when you were hired (I know I have at the last 7 jobs over the last 15 years). Not only is it grounds for immediate dismissal but it is also very solid grounds for a very expensive lawsuit that I don't think you have any chance of winning. My .02. Im not a lawyer. Don't take my word for it. If you are seriously considering not supporting the company that paid you to develop the patentable technology you better get a really good lawyer.
Armaments, 2-9-21 And Saint Attila raised the hand grenade up on high, saying, 'O Lord, bless this Thy hand grenade' N
If you feel that strongly then perhaps you should be asking yourself if you want to remain employed by a company at such odds with your own ethics. By suggesting this process your boss has indicated that they support software patents. As others have said your contract likely says the code you write for them is owned by the company. So ask yourself do you support code you write being subject to patent filing?
If the answer is no then you may not need to worry about being sacked - you should perhaps be looking for other employment.
If your employer is still enamored with the idea of filing documents with the patent office, suggest a Statutory Invention Registration. This will confer the positive aspects of patents -- protecting you from being sued over use of the "invention" and adding the invention to the public record -- without the negative aspects of patents -- stifling the industry or putting the company in the position where it is fiscally obligated to bring suit to 'protect its assets', and thereby run up expensive legal fees and create a public relations nightmare. Also, the filing fees for a SIR are cheaper than a normal patent application.
You can leave it up to your employer's lawyers to decide if you like, but it's *your* personal ass on the line of you fail to follow the law here, not your employer's -- when it comes to your ass, you should not necessarily trust someone else's lawyer.
Ian Ameline
A pretty story, but not really true. The executives get more benefits for building shareholder value. But the regular employees are more or less a commodity to the company, and are paid commodity rates. If the company does really well... the regular employees get paid the same, and perhaps the company expands and hires some more. If the company does really poorly... the regular employees get paid the same, except for those who get laid off. Unless you have some sort of explicit profit-sharing plan, there's nothing in it for you for "being committed" over and above your regular job duties; that's just giving away work for free.
The first thing I did when somebody in our company got the "lets patent things" bug was to make sure that everybody was well aware of my anti-patent position *before* I was ever put in such a predicament. My employment agreement didn't say anything specific about patents; although it did about ownership. I have no problems whatsoever over ownership; be that copyrights, trademarks, or trade secrets. But patents to me are unethical.
So I talked to all my managers, the human resources VP, and to our own company's lawyer, explaining my position to each of them. I also wrote it out and had a copy put in my personnel record. Basically I said that I would not willingly sign any patent paperwork as me being an "inventor" due to my ethical beliefs, but that I would do anything else to defend against other patents (even publication, etc.) and would not interfere within anything where I wasn't an inventor...I also said that I was aware I could be fired for refusing to sign as an inventor.
But now everyone's well aware of my position, most respect it, and they know ahead of time whether they value me more as an employee or value a potential patent more. I figure its best for everyone to know up front what to expect, and so far nothing "bad" has happened.
You sign the patent application under oath with possible consequences of perjury. Therefore you should not sign an application that you believe is wrong, including if you think its claims of being innovative are not justified.
But if you refusing to sign because you do not think it should be patentable, then your refusal is inappropriate. Your opinions on what should be patentable is something you should discuss as a citizen with your various congressional representatives.
If the application is truthful, the company is entitled to file -- whether you think filing the patent is good for society as a whole or not.
It's kinda cowardly, and I'm not even sure it's really feasible, but if you're worried about losing your job, maybe you could try anonymously publishing a description of the material to-be-patented? Obviously you'll want the text to be written such that it isn't obvious you're the source of the concept, but once it's published it can't be patented.
...is how much my company gives me every time my name is attached to a patent, after taxes. While it's all fine to take the moral high ground, your company is paying for your work, not your ethics.
I have applied for 4 this year and have already received bonuses for patents awarded from previous years. I am also entitled to licensing rights on two of them.
Seize the opportunity, this is your company, not you. Milk 'em for the bonus money.
"You can't be fired for religious belief. Join the church of GNU. it already has a saint [softpanorama.org]" Humor aside, Theoretically that is true. In 1985 The Detmer & Lander decision by the USSC made the religion of Wicca legally recognized religion with the same 1st. Amendment rights as any other. Tell your employer you practice Wicca, or let them discover it, and see how long your job lasts. It is "almost" impossible to prove religious discrimination if you are non-christian. Capt. Cautious
Isn't announcing that you henceforth refuse to do the work you've been assigned normally called quitting?
For the record, I'm not a patent attorney or a US citizen. And this isn't legal or business advice.
If your work is going to be a run-of-the-mill patent and never likely to be licensed or litigated, then it will be patented so it can be listed as a financial asset. In that case, the best thing to do is to document it as a piece of trade secret and hold that on file as part of the company's assets. Get a patent attorney to help you write up a "best method" to perform the supposed invention, along with a good description of the concepts involved, but save the money on filing and prosecution of the patent.
Explain to your boss that the monetary costs of prosecuting the patent aren't supported by the licensing availability, and that your company is being shrewd to keep hold of the cash.
Should a rival company come after you for infringement at a later date, you are in a position to invalidate their patent with your documentation -- and perhaps to take the patent from them.
Perhaps you better check this out with an attorney.
IF you don't want your stuff patented, do it on your own time and make it open source. If you are going to develop technology for someone on their dime with their equipment, don't be surprised if they think they own it. If you are lucky, you get to put your name on the patent and get a dollar. When my Dad worked for Litton, he patented a method for dimming nixie tubes. He got a dollar, and the respect of his son, for technology, not business sense.