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Should Inventions Be Automatically Owned By Your Employer?

Posted by Unknown on from the whole-greater-than-parts dept.

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."

11 of 291 comments (clear)

  1. A rate should be set at hire by Anonymous Coward · · Score: 5, Interesting

    By default/law, make it 50/50, and then let employers and potential employees negotiate.

    1. Re:A rate should be set at hire by camperdave · · Score: 5, Informative

      I've never seen any "only while on the job" language in any contract. The language I see is more along the line of "as long as you are employed by XYZ, all your inventions are belong to us."

      --
      When our name is on the back of your car, we're behind you all the way!
    2. Re:A rate should be set at hire by BVis · · Score: 5, Insightful

      "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.

      --
      Never underestimate the power of stupid people in large groups.
  2. Depends .... by DaMattster · · Score: 5, Insightful

    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.

    1. Re:Depends .... by icebike · · Score: 5, Insightful

      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).

      --
      Sig Battery depleted. Reverting to safe mode.
    2. Re:Depends .... by Shoten · · Score: 5, Interesting

      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.)

      --

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    3. Re:Depends .... by icebike · · Score: 5, Interesting

      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.
  3. irrelevant by shentino · · Score: 5, Insightful

    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.

    1. Re:irrelevant by thePig · · Score: 5, Informative

      Very true. I always wanted to be an inventor, and have now more than a few patents. My first few patents were taken by the company where I was working during that time - even though it had absolutely nothing in common with the work I was doing for them - even the domain was completely different.

      Primarily due to this, and partly due to the fact that they did not even implement the patent and try to sell it - rather they wanted the patents to bolster their resume when they went to their clients -, I left them and decided to work for my own. Started 2 companies till now, nothing has gone anywhere - but at least my patents are mine now.

      I consider these total takeover of any work done to be a big deterrent to innovation overall. If I am coming with an idea, it should be mine and mine only. I am being paid for the work they expect me to do in the company - not thinking of ideas of my own. The companies doesnt even pay well for those patents and then complain that they are not innovative etc. I do understand that a very small percentage of patents make money, but for an inventor, it is his baby - giving pennies for it is like insulting him.

      --
      rajmohan_h@yahoo.com
  4. the whole concept of property by alienzed · · Score: 5, Interesting

    will be our undoing. The reality is that we're sharing everything.

    --
    Never say never. Ah!! I did it again!
  5. Copyright law is what has it wrong by Omnifarious · · Score: 5, Interesting

    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