Should Inventions Be Automatically Owned By Your Employer?

An anonymous reader writes "Joshua Simmons authored an article for the N.Y.U. Journal of Intellectual Property and Entertainment Law. The article is a comparison of the developments in copyright law and patent law in the nineteenth century that resulted in copyright law developing a work made for hire doctrine while patent law only developed a patch work of judge-made employment doctrines. The article theorizes that patent law did not develop an inventions made for hire doctrine, because inventive activity was almost exclusively perceived to be performed by individuals. It goes on to suggest that, as patentable inventions today are generally perceived to be invented collaboratively, the Patent Act should be amended to borrow from the Copyright Act and adopt a principle similar to the work made for hire doctrine."

Comments

Depends ....

[DaMattster]

If you've invented this on your own time, money, and resources there is no way in the shady side of hell that your employer should have any ownership of it. If you did this while being compensated by your employer, the situation is different. If you've used your employer's money and resources, then it is fair.

Re:Depends ....

[icebike]

If you've invented this on your own time, money, and resources there is no way in the shady side of hell that your employer should have any ownership of it. If you did this while being compensated by your employer, the situation is different. If you've used your employer's money and resources, then it is fair.

Well that depends...

Most people can't compartmentalize their lives that completely. This is especially so when engaged in intellectual work (as opposed to factory drone work where you can simply flip a switch in your brain as you walk out the door).

So if I hire you to develop a left handed corner scraper and in the process you create a patentable piece of work, you might claim (truthfully) that the idea came to you while sitting on the throne in your house on a sunday afternoon when you saw the reflection of the light switch in the mirror.

Still, had you not been working for me explicitly on this project, you would, in all probability, never have had that spark of intuition.

Its too easy for you to claim you had the idea after work hours. Every body mulls over work problems at home.

Similarly, if you are employed to handle billing for your company and you stumble upon a totally unrelated idea, say for a new fishhook, on your day off or even on the job, its too easy for the company to claim it.

Fishhooks have nothing to do with billing. Everybody mulls over recreational problems while at work.

There needs to be a rational separation, such that your employer can only claim and idea when:
1) the invention must have some relevance to your work duties
2) you must be employed specifically to design/build/invent stuff
3) you must have made some use of your employers facilities or time to develop, build, and test the invention
4) you had access to some of your employer's proprietary information that helped you
5) ??

The night watchman at the Boeing plant plant that invents a new nose gear part after years of watching planes
take off from his post in the guard station should still get to keep his design.
The engineer or mechanic working on nose gear installation: Not so much.

There is still a lot of grey areas, but at least rules like the above would eliminate a lot of patent grabbing. (From both sides).

irrelevant

[shentino]

Employers have enough power to force employees to sign contracts as a condition of employment not unlike what you'd find in an EULA. No signature, no job.

So it doesn't really matter in the long run what laws we pass unless we make it illegal for employers to ask for certain concessions.

Re:A rate should be set at hire

[BVis]

"Gee, Bank of America, I'm sorry I don't have a job and can't pay my mortgage, but you'll be happy to know that I turned down a gig on principle!"

Yeah, see how far that gets you. Not to mention, if you're collecting unemployment benefits and you turn down a job, you disqualify yourself from any further benefits.

Then there's the whole "US health insurance industry" problem, where getting cancer while not insured is fatal to either yourself or your entire economic identity. Most people don't have any choice but to get health insurance through their employer and, thanks to the for-profit health insurance industry, paying for your care out-of-pocket will cost you everything you own.

Yeah, you'll be taking what we offer and you'll like it. If you don't like the language in the employment agreement, I'm sure we'll find someone that does.