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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.
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.
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.
will be our undoing. The reality is that we're sharing everything.
Never say never. Ah!! I did it again!
More should be borrowed from the patent doctrine.
Now, if you create a work specifically commissioned by your employer, the employer should own the right to use your creation, but not to make a product out of it, and resell it, unless you were hired and have in writing communication that the work was specifically for that purpose
E.g. if you are hired to write custom software for an organization, by default that work should belong to you. If on the other hand, you were hired to build a custom software product, then by default, the work on that specific product, that you submit for that product, should belong to your hirer, as part of the understanding that you are doing product development work for them (versus just work for the benefit of their infrastructure).
Development of a product (giving ownership of your creative work for purposes of resale) should come with expectations of greater compensation, because you are handing over not just your hours of work -- but an opportunity to profit as well, from the resale of the work.
Whereas, development of software to meet an internal process, should come with an expectation that it is taylored to the needs of your employer's specific business, and you both retain rights to that.
I've wonder if the IP clause you find in employment contracts is even legal. How can an employer deem that they automatically own intellectual property I developed privately in my own time with a tenuous link to my current role? It makes *some* sense for employees where their role is to produce intellectual property, researches , authors etc, but it's hard to see how the blanket clause I've seen in every role I've had could stand up to a serious legal test.
Your employer absolutely should be entitled to any IP you produce ... *if* they're paying you for 168/hours a week. If it's only 40 hours/week then there has to be room for you to do your thing on the time that belongs to you. I hate it (and refuse to sign -- cost me a great job once) when they try to just stick a catchall into your employee contract. Contracts are supposed to be quid pro quo deals, not quid pro nothing.
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
I cannot run my company, if I have to bargain for the invention that I paid my employee to develop. Now that being said, if I the employee developed the invention completely separate from the company then he certainly should own it.
IANAL, but you'd bloody well better talk to yours before you try to invoke that principle.
It helps when you own the company you work for
because people are making babies too fast.
One of the reason why California has so many startups is that California State law clearly states that work done by an employee for the employee's own time and business interests belongs to the employee. It is very clear that the author of this article has no experience with startups.
If the default "inventions belong to the employer" rule was in effect everywhere, then the net effect would be to lock up employee ideas with little actual benefit to the employer. This is because most big companies are not very innovative, and thus fail to exploit most employee inventions. Most of the modern world as we know it would never have happened.
Dangerous and bad idea. I hope that the article remains forever ignored after this.
Otherwise, how would Edison have invented so many things?
That's easy, by being a patent clerk and being the worlds first patent troll.
Om, nomnomnom...
I am sure that Nikola Tesla, Philo Farnsworth, Stanley Meyer would have other ideas. If employers are so smart, then they would not need employees. There are way too many thieves, liars, and greedy people who do very little to earn complete and total control of someone's invention. The mere fact that money is offered, with strings attached, to fund an invention is not enough for complete ownership. If an invention succeeds, the inventor should have no less than 55% of controlling interest. If it should fail, an inventor should not have more than 55% of the financial burden when there are investors staking their money. In any gamble there are risks on both sides.
How many inventions are/ were shelved because it would upset the financial status quo of the greedy. Pure genius is not bought, traded nor stolen. It is a god given gift. Most inventors would like to live modestly while giving to humanity. Those entrepreneurs who live in the obscenity of avarice eventually get what they deserve.
It's been over 100 years and still the truth of Tesla's inventions is protected by "national security", why? The powers that were are holding tight to these truths and yet, they are still coming into the light of day.
This government had the big three auto manufacturers over a barrel. They could have been told to put on the road, an automobile seating four adults in safety and comfort, with sufficient power, and getting over 80 miles per gallon, at a reasonable price or get out of the business. What did these CONgressMen do? They threw taxpayer money at the big three for bonuses while the taxpayers lost their jobs, pensions, homes and futures. And then these asshats wonder why the American people are pissed at them, hmmm.
The mind conceives, the body achieves, the spirit manifests.
If they provide the resources for the development yes, otherwise no. The point is I remember the contract I signed while I worked at Disney. Everyone from the janitors up signed it and basically anything you created while you worked for them they owned. Translated if you were sweeping floors and happened to cure cancer they owned it. More realistically if you were hired as an office worker and happened to write a successful novel they owned the rights. The amazing thing is I talked to a lot of people there and they had no idea they signed that agreement. Most found out when they got that call from Disney legal pointing out what they had signed. Now say you are working in their robotics lab and come up with a new software or hardware design using their facilities then it's reasonable since they made the investment in the facilities and paid you for your time. It's blanket agreements that should be banned.
That would get really ugly really fast for large projects.
Imagine if your company hires a brilliant programmer. He writes a massive chunk of the code and does a great job at it.
His name also happens to be Hans Reiser. One day he decides to strangle his wife and bury her under a tree. He goes to jail, gets a life sentence, and one day he drops the soap and gets rammed by a guy named Bubbah, and then beaten to death so that he can't tell anyone.
His sons inherit his piece of the code, and suppose they demand royalties from the project that your company can never afford to pay.
Now your company is fucked. They can't use any of that code, and have to start all over. If they can't afford to do so, all of the employees lose their job, and nobody wants to pick it up again because they don't want to have to deal with that mess.
Or lets even say that said employee didn't break any laws at all, but decided to become a drug addict and stopped showing up to work. Again, without breaking the law. He still gets his royalties anyways, right? You can't lay him off, after all.
Not only no, but hell no.
Careful with names containing L slashdot.org/~AiphaWolf_HK slashdot.org/~AlphaWoif_HK slashdot.org/~AiphaWoif_HK
When you are hired to work for Radio Shack they make you sign an agreement that ANY inventions that you come up with while employed by them are their property. They also state that any future inventions that MAY have been thought up during your time working for Radio Shack also belong to them. This includes your own time. This is any invention during the employment period and any time in the future.