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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.
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
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...
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.