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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."
By default/law, make it 50/50, and then let employers and potential employees negotiate.
will be our undoing. The reality is that we're sharing everything.
Never say never. Ah!! I did it again!
IMHO, the major problems in IP law come from corporate ownership. It shouldn't be possible for corporations to own copyrights or patents, they should only be able to be granted strictly limited rights by the individuals who do own the IP.
Need a Python, C++, Unix, Linux develop
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.
So here's an example to draw upon that shows how the compartments still happen, regardless of how steeped in our work we are.
I do cyber security, and I absolutely live, drink and breathe it. Several years back, I had been working on a book under contract. The book was germane to my field of professional expertise. I wrote it on my own time, on my own computer, and the content had nothing to do with my current employer. (Just to make sure that part's clear.) I got bored in my job, having hit a point where things were progressing no further, and gracefully started exiting. I had an offer from a company (let's call them "AC, which is the letters of the company name but rearranged") and was in the process of taking it, even having given notice at my current employer and started helping them look for a successor. Then, I got their intellectual property agreement, which stated that anything I put out was their property...ANYTHING...during my employment with them. I'd seen this before, and had asked at prior jobs...the solution is to tack on an exception for this or that thing, and that's how it's always gone. So no problem, right?
Wrong. I called the recruiter, and he said they make no changes, no exceptions. I pointed out that they would be effectively stealing from me, as by this point the book was actually done, and just waiting to hit the printers. No flexibility. So I declined the job offer after all, and ended up taking a different one...which turned out to be much, much better in the end. Pity, as AC had plans for me to travel to a client and be the centerpiece of a project that was kicking off. They suddenly developed "flexibility for an exception," but by that point, I was past having any desire to interact with them on any level whatsoever, much less steer my career through the middle of that company. I went to work at EDS, and did beautifully. (Until HP bought them, that is...but that's another profanity-laden rant.)
For your security, this post has been encrypted with ROT-13, twice.
I've actually had an employer that wanted to license what I developed at home, and he wanted to pay me to convert it to his mainframe platform.
Since this was back in the days prior to there being such draconian "all your inventions are belong to us" clauses, the negotiations went smoothly.
I retained ownership.
He got a non-transferable perpetual license to both the PC and Mainframe versions.
I got a mainframe version using his resources.
No money changed hands.
Everybody happy.
Its always worse when lawyers are involved.
Sig Battery depleted. Reverting to safe mode.