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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.
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.
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!
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?
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.
ad astra per alia porci
"Hey Slashdot, look how cool and ethical I am! I have problems with how my company is doing something and I want to "ask" about it even though all of the relevant options are obvious! This is so everyone will know how awesome I am because I don't believe in patents!"
I mean, cool or whatever, but did you really think you were going to get any other answer than, "What's worth more, your job, or your beliefs about software patents?"
Surely anyone intelligent enough to HAVE this dilemma should be able to map out the various options and likely outcomes. At least, just as well as anyone on slashdot can.
http://xkcd.com/386/
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.
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.
The best thing is to publish it. If you patent it even without intending to enforce it, the patent can still be acquired later by someone who will. In fact, that's exactly what happened with the lzw/gif patent.
Donate free food here
There's a place where you follow strict orders and shut the fuck up. It's called your job. :)
There's another place where you can fight for ideologies, it's called a trade association.
You can both be a good worker and a good activist, if you know your place and timing
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?
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.
Did FSM command this?
I prefer the "u" in honour as it seems to be missing these days.
That's not a question anyone here can answer with just the information you have provided. It depends on your contract, and probably also on laws in your jurisdiction.
If you're likely to get fired for not supporting your boss' patent application, maybe you should consider helping with the patent application then leaving the company on your own terms. Having a patent on your resume might help you move in to a better class of job where your concerns will be respected more.
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?
I never said that he did have to file a patent, the point I was making was that if he doesn't file a patent and a patent troll goes after him later, the patent may save his company from a lawsuit.
Just because he morally disagrees with patents on IP does not mean that he should not persue this legal avenue to protect his company and his job. Until the law is changed, you have to work within its limits or face potential consequences. Even when you are in the right court cases are costly and bad for business.
The worst that can happen is that someone else patents it 5 minutes later, and then you lose out on your own work. Not all patent applications are offensive. Some are defensive.
> 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 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
Not trying to flame here, just want some insight into your thought process here, but why would you view these as a strike against the candidate?
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.
Just BCC to a Gmail account.
1 months later google patents that idea...
I Kid! I kid!
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.
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.