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Can I Be Fired For Refusing To File a Patent?

kdawson posted more than 6 years ago | from the if-you-don't-cooperate-your-replacement-will dept.

Patents 617

An anonymous reader writes "I am a developer for a medium-sized private technology company getting ready for an IPO. My manager woke up one morning and decided to patent some stuff I did recently. The problem is, I'm strongly opposed to software patents, believing that they are stifling innovation and dragging the technology industry down (see all the frivolous lawsuits reported here on Slashdot!). Now, my concern is: what kind of consequences could I bring on myself for refusing to support the patent process? Has anybody been in a similar position and what was the outcome?"

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Well... (5, Insightful)

fyngyrz (762201) | more than 6 years ago | (#24632817)

You can be fired for anything.

The real question is, can you afford legal action to contest your firing, and do the state and federal laws, and your employment contract, support your actions? To answer those toughies, you need a good lawyer. Not slashdot.

Re:Well... (1, Funny)

Anonymous Coward | more than 6 years ago | (#24632851)

It's challenging for an organization such as his to measure success. For example, how can we reasonably estimate how many people they've taught to understand, appreciate, and assert their constitutional rights during copyright encounters? The best way to measure this is to count positive outcomes, which can be sorted into two general categories: objective (i.e. numerical) and anecdotal.

From a numerical standpoint, I like to measure success with informing management of the patenting process by counting how many people have decided not to patent their software, ultimately releasing it as free software.

By that measure they've done pretty darn well for an organization with the available full-time staff people and a five-figure budget! But it's always the anecdotal success stories that melt my heart and show me that we are changing people's lives for the better.

Better approach (5, Insightful)

EmbeddedJanitor (597831) | more than 6 years ago | (#24632901)

Find some prior art. It's generally quite simple beacause there really are few new ideas oth there.

Tell boss the patent wont fly because of this prior art and you're saving the company $10k+

Re:Better approach (4, Insightful)

beeblebrox (16781) | more than 6 years ago | (#24633067)

Find some prior art.

and tell your boss, as well as the IP attorneys working on it within/for your company, in a paper-trail-setting medium like email, dressed up as a question of an inquisitive techno-geek wanting to satisfy his curiosity:

"So, on this flux capacitor patent thing: What do you guys make of this Heisenberg compensator design I found at this URL here? I kind of derived my design from that, is that something that would go in the prior art list we talked about during the IP attorney meeting the other day?"

Poison that well.

Re:Better approach (3, Informative)

WindBourne (631190) | more than 6 years ago | (#24633139)

If doing email, be sure to run it some of them through a timestamper and forwarder to a different address. You want not just a trial, but they could easily delete their email logs/emails. But if it went through a stamper then they will have to answer for it. In general, little guy has the edge.
http://www.itconsult.co.uk/stamper.htm [itconsult.co.uk]

Re:Better approach (3, Interesting)

Z00L00K (682162) | more than 6 years ago | (#24633103)

File the prior art together with the patent application and make the application so bad that it's rejected.

That should teach your boss.

Or file the whole thing on slashdot as an AC. But let a friend write it so the writing style isn't matching your style.

But maybe your boss was asked for possible patents from an investor. Venture capitalists usually looks for companies to invest in by measuring the patents they have. Which in the end doesn't say a thing about how well the company actually can fare. It may also be that your boss (if he owns the company) is under way of selling it and wants to get as much money out of it as possible, which may mean that you can get fired anyway for other reasons.

Chances are... you have "at will" employment (4, Insightful)

vladkrupin (44145) | more than 6 years ago | (#24632923)

which means that either you or the employer can terminate the relationship at any time with or without cause.

which also probably means they can fire you and not face the consequences. It just won't be a "for cause" firing, but rather letting you go for some bogus reason.

which, if you think about it, makes sense.

The real question is -- what's more important to your employer (or, more precisely, your immediate manager)? You or your cooperation with whatever they ask?

Black and white: yes (2, Insightful)

Senes (928228) | more than 6 years ago | (#24633019)

It's your employer's call. It WILL offend them, and they WILL get even. Consider the bad economy before you put your career on the line to make a statement, and then consider what the patent is worth - unless you're claiming ownership of ones and zeroes then it likely won't hurt anyone too much to sacrifice yourself over.

Re:Well... (1)

auric_dude (610172) | more than 6 years ago | (#24633041)

The real question is, can you afford not to file? After all you may well be in line for a share option or issue at the IPO but only if you are still employed by the company.

Not really (5, Insightful)

WindBourne (631190) | more than 6 years ago | (#24633125)

First, it will depend on the state. But the simple fact is, that he developed those items FOR the company AND on company time. In just about EVERY STATE, if not ALL states, the company owns the patent (unless the author explicity excluded those BEFORE time of contract. As such, they are now asking him to submit THEIR idea to the PO. This is no different than if they ask you to take a pix of something, or back up something, or whatever. It is expected AND legal for the actions that they are asking him to do. As such, I would expect him to be fired for not doing the patents. Though that is NOT a very good idea in front of an IPO.

The idea of getting a lawyer is the best advice that anyone can give.

Re:Well... (1)

Antique Geekmeister (740220) | more than 6 years ago | (#24633155)

Not exactly. A better question is 'what will having the patent change'? They're great on your resume, and there are plenty of reasons to want even frivolous patents. IBM, for example, has a huge library of patents that they use as defense against intellectual property lawsuits, and to demonstrate their expertise in hardware and software. Patenting the ideas in the software, and releasing it under GPLv3, would allow your company to protect its intellectual property in some fascinating ways.

Software patents are like billy clubs. You don't want to need them, but if you get into a fight and have one handy, it can help you win. And since such billy clubs are legal in the USA, better safe than sorry: the best form of prior art in a patent fight is an earlier patent.

Re:Well... (4, Informative)

dshaw858 (828072) | more than 6 years ago | (#24633173)

Okay, as an "inventor" for a private firm, you probably signed an agreement stating that all of your work done at said company is owned by the company. I think, therefore, that it is out of your hands--if the company wants to file a patent, they can do so.

Notice how Microsoft patents, for example, are owned by Microsoft Corporation, not by the individual coders who came up with whatever algorithm/mechanism/whatever the company is trying to patent.

Therefore, I *think* that your boss is just requesting your help filing and managing whatever the software does (assuming he is not a techie and can't write out the algorithm/flow charts himself). If you refuse to help him, he could still get a patent, and probably fire you, too...

HOWEVER! I am not a lawyer, and this sounds like something that should be verified by one. I would recommend talking to a patent attorney as well.

Hope that helps!

Up to you but just remember... (1, Informative)

smegged (1067080) | more than 6 years ago | (#24632837)

The law is the law, even if you disagree with it. There are several reasons why you should listen to your boss - your job, his job and the prevention of possible law suits in the future.

Firing (3, Informative)

Boronx (228853) | more than 6 years ago | (#24632845)

IANAL, but I'm pretty sure there's only a small set of things you can't be fired for in the US, like race, and anything else is legal. There's probably no law protecting your right not to file patents.

Re:Firing (2, Interesting)

mlc (16290) | more than 6 years ago | (#24632999)

the only exception to this is if there is a union contract (or, more rarely, an individual contract) specifying otherwise.

Re:Firing -- religious objection (4, Funny)

Alain Williams (2972) | more than 6 years ago | (#24633077)

IANAL, but I'm pretty sure there's only a small set of things you can't be fired for in the US, like race, and anything else is legal.

You can't be fired for religious belief. Join the church of GNU. it already has a saint [softpanorama.org]

Why? (2, Funny)

WindBourne (631190) | more than 6 years ago | (#24633163)

Did FSM command this?

Play the game (2, Interesting)

nicc777 (614519) | more than 6 years ago | (#24632849)

Maybe you can just copy and paste some wording of another "similar" patent and wait that the system rejects the patent...

Re:Play the game (1, Insightful)

Anonymous Coward | more than 6 years ago | (#24632989)

Maybe you can just copy and paste some wording of another "similar" patent and wait that the system rejects the patent...

I wouldn't.

This is the USPTO we are talking about. I wouldn't give them too much credit if I was you.

Best bet, take ten minutes on google and find some prior art, point your boss at it and explain why a patent claim would be a waste of time and money.

If you have to break out the big guns, hint that while the USPTO might be stupid enough to pass it, the first time you tried it in court any lawyer smart enough to tie his own shoes would rip it to pieces.

Re:Play the game (1)

EvanED (569694) | more than 6 years ago | (#24633079)

And if someone from the company does any investigating, then you'll find yourself fired AND in court to get that patent transferred to the company.

Obligation to Company (5, Insightful)

LightPhoenix7 (1070028) | more than 6 years ago | (#24632855)

Your job is to do development for a company - they pay you for this. Thus, your feelings on whether patents are broken or not is irrelevent. Anything that you've written for the company while being paid by the company belongs to the company, and if they choose to patent it that is their right. You don't own it, you have no say. Consequently, when you tell your boss you won't do what you are being told, despite the fact that ethically you may have a point, you don't actually have a leg to stand on. So will you get fired? Who knows, we don't know your boss. Would your boss be in the right to repremand you? Absolutely.

Re:Obligation to Company (1)

cp.tar (871488) | more than 6 years ago | (#24632883)

While you are right, I do wonder whether it is his job to file patents. Maybe someone from the legal department would be better suited for the task?

Re:Obligation to Company (1)

shutdown -p now (807394) | more than 6 years ago | (#24632897)

It does not matter. I would imagine that a patent application requires some technical specialist to contribute as well (since you do need to have the technical description of the process).

Re:Obligation to Company (0)

Anonymous Coward | more than 6 years ago | (#24632905)

Lawyers will file the paperwork, but every patent needs an inventor listed.

Re:Obligation to Company (0)

Anonymous Coward | more than 6 years ago | (#24632921)

And the boss is just doing his job too. He needs to protect the company.

If you and he don't patent the idea, someone else may, and be able to use that against you.

Unfortunately, that's the way it is until the patent mess is fixed.

Re:Obligation to Company (1)

andymadigan (792996) | more than 6 years ago | (#24633009)

They can disclose the invention on a public registry without filing it, thus protecting themselves from someone else patenting it.

Re:Obligation to Company (1, Interesting)

Anonymous Coward | more than 6 years ago | (#24632985)

Your job is to do development for a company - they pay you for this. Thus, your feelings on whether patents are broken or not is irrelevent.

Not true. He could just refuse to patent. This might get him fired, but so what? It's his decision. Nevertheless, it would be somewhat awkward for the company to file a patent in the name of an employee they fired (yes, they have to mention his name in the U.S., even if it is a work for hire).
 

Consider sabotage... (2, Funny)

Anonymous Coward | more than 6 years ago | (#24633013)

You do face a possibility of being fired for refusing to go along with their demands. As others have mentioned, you can be fired for damn near anything -- even if you don't live in a "right to work^H^H^H^Hbe fired" state, they can still make up a reason and fire you.

They are looking to you to provide them with the basis for their IP (imaginary property) when they file their patent -- so you may want to make sure the patent is as indefensible as possible. Throw in lots of obvious prior art, don't explicitly cite references to it, just make sure it's clear to anyone who's looking that there's no originality. True, it may still lead to litigation in the future, but you'll be giving innovation the best possible chance to prevail.

Re:Obligation to Company (4, Insightful)

Confused (34234) | more than 6 years ago | (#24633031)

The previous poster is right, mostly. If your employer feels your wonderful software needs to be patented, you have to do it. No way around it.

On the other hand, you should strive to do your work as well as possible and support your employer whole-heartly and stay inside the law. Take it as an opportunity to learn more about the patent process. Try to provide good data for the patent.

First is the matter of previous art. Take your time and research it properly - no vague: Doh, someone must have done it before it isn't rocket science. Document your findings and keep the documentation and send it to the responsible people for filing the patent in a provable manner.

The other part is the obviousness, but that may be harder to document that management understands. You may get away with documenting that your things are just standard techniques any decent CS-major or developer knows about and uses daily.

Legal people really hate it, when they can't deny knowing about holes in their patent. And if you did your work properly, the patent shouldn't have many legs to stand on, should they go ahead.

Re:Obligation to Company (4, Insightful)

Z00L00K (682162) | more than 6 years ago | (#24633133)

Legal people really hate it, when they can't deny knowing about holes in their patent. And if you did your work properly, the patent shouldn't have many legs to stand on, should they go ahead.

One problem is that if you file your part of the patent claim to the legal people and then they file the patent they may chose to cut out parts of prior art that you have written just to ensure that it will get through the patent system. That's one reason for hiring a patent lawyer - make the application as general as possible to allow for the best and broadest hit. The patent office won't be able to search fully for prior art because they don't have the knowledge you have about the thing patented.

Yes - I have an evil mood today...

Re:Obligation to Company (2, Interesting)

aysa (452184) | more than 6 years ago | (#24633051)

Consequently, when you tell your boss you won't do what you are being told, despite the fact that ethically you may have a point, you don't actually have a leg to stand on.

If may boss tells me to start cleaning the toilettes be sure I can reject that standing on two legs. This is not black and white.

Re:Obligation to Company (1)

dreamchaser (49529) | more than 6 years ago | (#24633241)

Actually that depends on the State you live in, whether or not you have a contract delineating your duties, and whether or not the ubiquitous "other duties as assigned" exists in a written job description for your position. This is not black and white either.

Re:Obligation to Company (1)

jabithew (1340853) | more than 6 years ago | (#24633073)

This one post is the absolute answer to the question.

Re:Obligation to Company (1)

Scannerman (1136265) | more than 6 years ago | (#24633093)

I work in the UK, where we have much stronger employment protection laws. I could certainly be fired if I didn't cooperate with filing a patent. And under my contract I have a specific obligation to cooperate, even if I've left the company (not sure if they could easily enforce that one..)

I don't like the way that trivial software/process patents have worked out, especially in the US. but to reckon that this is an 'ethical' issue seems probably a bit hyperbolic.

Re:Obligation to Company (0)

Anonymous Coward | more than 6 years ago | (#24633097)

Yep--my employment agreement even explicitly states that I'll help my employer patent work I do for them...

Re:Obligation to Company (0)

Anonymous Coward | more than 6 years ago | (#24633137)

That doesn't answer the question. First of all, I realize the employer tends to get the copyrights to the employee's code, but doesn't the latter have to sign some sort of agreement first? Second, he's not talking about copyright, but patents, where first-to-file is what's important, not who thought up the idea first (so it wouldn't make much sense for the employer to "own" the employee's patentable ideas--the employer simply has to file for a patent with or without the employee's consent). So, couldn't he just put up the ideas online before his boss tries to patent them? There are a lot of legal issues here, and I don't feel at all satisfied by your "answer". Someone, please shed some light on these questions.

Re:Obligation to Company (4, Insightful)

ScrewMaster (602015) | more than 6 years ago | (#24633215)

If he refuses to help on the patent application after being instructed to do so, he's being insubordinate. That's grounds for immediate dismissal at most places I've worked. His personal feelings aside (and I agree with him that software patents were and are a bad idea) the reality is that the code in question is not his property. He should just deal with it, and if it really bothers him that much seek a position elsewhere.

Patent something else first (5, Funny)

illama (1275186) | more than 6 years ago | (#24632857)

Just patent the process of firing someone for refusing to file a patent.

Then they'll have to license the technology to be able to use it against you.

Frivolous patents are evil.

Re:Patent something else first (1)

Aeternitas827 (1256210) | more than 6 years ago | (#24632927)

Frivolous patents are evil.

And that sort of patent wouldn't be evil, in the devious sort of way?

Though, I wonder if that would be a patentable type of thing...

Re:Patent something else first (1)

bobdotorg (598873) | more than 6 years ago | (#24632941)

Just patent the process of firing someone for refusing to file a patent.

Then they'll have to license the technology to be able to use it against you.

Well hell, don't be half assed about it. Finish the job and also file a patent for not firing someone for refusing to file a patent.
???
Profit.

Re:Patent something else first (1)

Daniel Dvorkin (106857) | more than 6 years ago | (#24633003)

The sad thing is, with the current state of the patent industry, such a patent might actually be granted.

Hmmm. Prior Art? (1)

WindBourne (631190) | more than 6 years ago | (#24633175)

Is this NOT prior art that prevents it from being filed? i.e the company could simply pull this up and declare it prior art and it is all over.

Job vs principaled stand (5, Interesting)

Cherveny (647444) | more than 6 years ago | (#24632875)

In many states, you can be let go at any time for any reason. It really comes down to what you value more, your principals or your job. Of course, if you are a valued employee, and if you are coming up with patentable ideas, I'd assume you are, how you broach the subject may help influence how stable your job is. Instead of first saying "I refuse," instead consider, "I object," followed by your reasoning. If they then push the issue past your objections, you can always move on to "I refuse."

Re:Job vs principaled stand (0)

Anonymous Coward | more than 6 years ago | (#24632997)

This.

Try to work it reasonably, or quit. It's going to be an, uh, interesting environment to work in if you stand up and say "I refuse to ______ ... *Awkward silence*", rather than stating your objections, negotiating/discussing, and then quitting if they still want you to go ahead with the action you find objectionable.

Does it even matter? (0)

Anonymous Coward | more than 6 years ago | (#24632879)

This will probably depend on your local laws and your contract, but does it even matter?
Doesn't whatever you 'invented' belong to the company anyway? Can't they just have someone else file the patent?

Consider this before you do anything which might cost you your job.

The point is not whether you will get fired (0)

Anonymous Coward | more than 6 years ago | (#24632881)

Do you even own the code? Are you certain they' ll even ask you about the patent?

This one's a thinker... (2, Informative)

Aeternitas827 (1256210) | more than 6 years ago | (#24632885)

I suppose that, overall, it could be deemed insubordination to refuse, and you could end up out on your ass. It all depends on the company's overall handling of employees, and how willing they are to get rid of outside-the-box-thinkers.

You also need to look at any sort of contract/agreement that you'd signed pursuant to your employment; essentially, if such an agreement says that the company owns any work you do for them, which one would assume they would insert such a clause to prevent you jumping ship and taking your work elsewhere, then it's no longer your right to refuse to fill out any patent forms for the work, no matter how distasteful you might find them. And ultimately, they would likely end up going ahead and doing it anyway regardless of what they end up doing to you; and if they get rid of you in that sort of situation, the outlook is much more bleak for you should you try and pursue any legal action over your termination.

Of course (5, Insightful)

tsotha (720379) | more than 6 years ago | (#24632887)

When you get paid to do a job what you produce isn't yours. Of course you can be fired for this - and what difference does it make whether you file the patent or someone else does? If you feel really strongly about it you can hold firm, but realize if they can you there's nothing you can do.

On the other hand, if you really want to screw him you can search the patent databases and find one that's similar. Then tell your boss. Knowingly violating a patent is treble damages, which is why they tell you never to look. They'll probably fire you for that too, but that should severely complicate their foray into patentland.

Employment Agreement (1)

airos4 (82561) | more than 6 years ago | (#24632891)

You may need to read your employment agreement.. if there is anything in there about the company owning the rights to your work while employed there, then you don't have much recourse because they can just file it without your permission anyway as "something our team developed."

Not going along with legal/hr is a losing battle. (5, Interesting)

twitchkat (566638) | more than 6 years ago | (#24632895)

Does the phrase "at will employment" ring a bell?

Choose your battles in business wisely -- making a philosophical stand could have a heavy financial impact on you.

You may not "get fired" over taking a stand -- but it would probably put you in the "not a team player" camp.

Career-wise, that may be even worse (financially) than being fired. If your Company is planning an IPO, they probably have a substantial legal department... And enemies in Legal (the same people usually championing the patent process) are the worse kind of enemies to have. You may start getting the cold shoulder at review time, bonus time, and option-allotment time... Legal, unfortunately, isn't quiet when they have gripes -- and they usually have the means to pull strings like that!

yeah... (1)

trawr (1346113) | more than 6 years ago | (#24632899)

I am pretty sure anything you create and or do is the property of your employer. You more then likely signed some sort of agreement.

Think it through... (5, Insightful)

coolgeek (140561) | more than 6 years ago | (#24632903)

You'll be fired, and they'll file the patent anyway.

Re:Think it through... (0)

Anonymous Coward | more than 6 years ago | (#24633095)

You can't patent something that has been published beforehand, so it should be possible to just get fired.

You're asking the wrong question (4, Insightful)

QuantumG (50515) | more than 6 years ago | (#24632907)

A better question is: am I valuable enough to the company that threatening to quit if they patent my work likely to be of any concern to them? If the answer is no, you make your own decision about what is more important to you, your job or your ethics.

Not Yours (0)

Anonymous Coward | more than 6 years ago | (#24632915)

If you write code while on your company's clock, they own the code and not you. They can do whatever they want with it.

Let's just hope the US patent system will change for the better soon!

Why fight? (2, Insightful)

Anonymous Coward | more than 6 years ago | (#24632917)

Why not try to convince him instead of trying to fight him? Fighting will probably result in the patent being filed anyway - he does not need your consent for it (at least not in my part of the world) - and maybe in you being fired.

Re:Why fight? (3, Insightful)

thegrassyknowl (762218) | more than 6 years ago | (#24632971)

The do need to list the inventors by name, even if the patent belongs to a company. IIRC they do need to list your name on the patent, and that requires your consent/signature.

I agree with trying to convince the boss to see reason. You'll likely not succeed though.

It sounds like the usual bunch of suits trying to fluff up the value of their company with things that have little meaning and that they know very little about (patents pending that may or may not rejected later) before they flog it off and get rich.

Give it away give it away now (0)

Anonymous Coward | more than 6 years ago | (#24632929)

"I am a paid employee for a medium-sized private company. My manager woke up one morning and decided to sell some stuff I did recently and make as much profit as possible on it. The problem is, I'm strongly opposed to taking a profit, believing that we all should produce according to our ability and only take according to our need. Now, my concern is: what kind of consequences could I bring on myself for refusing to support the capitalist process? . . . ."

Duh, what do you think? Your legal recourse? Work for yourself for free and give away what you produce.

Prior Art (1)

Bunyip Redgum (641801) | more than 6 years ago | (#24632931)

Just do what they want. First step in the process is to search for prior art - I am sure you will find some for any software development project!

IANAL but (0)

Anonymous Coward | more than 6 years ago | (#24632937)

i'd fire your sissy bitch ass

How much do you value your job? (0)

Anonymous Coward | more than 6 years ago | (#24632939)

Do you like your job?

If you do, voice your opposition as best you can, but for your own sake, go along with what they decide. If they do decide to go ahead with the patent process, suggest that the patents be added to one of those "Free/Open Software" patent pools.

If you don't like your job, you could refuse to comply, but you might get fired. You could try to contest it, but you'd probably lose. They might even be able to get the patent without you.

Some people say that if the company you work for is morally corrupt, you are being morally corrupt by working there. I don't agree. The decisions a company makes are determined by the people working there. For example, Microsoft wouldn't be as hostile towards Free Software if only they had enough Free Software supporters working there.

If your company is making decisions that you believe are not good, don't just quit. That will only make things worse. Use your voice. There's no need to be fanatical, either. Simply explain how and why such a decision might have a negative impact on the company. Will it upset customers? Will it alienate FOSS developers? The short-term impact of those things might be minimal, but you can make an argument for the long-term impact.

Easy fix (4, Interesting)

Hektor_Troy (262592) | more than 6 years ago | (#24632943)

There's a very easy fix for this.

Make an anonymous posting somewhere, describing the innovation you came up with. If it has been disseminated before, it cannot be patented.

This is a fairly common process with companies that either cannot afford to patent or don't want to. They put in a 1 page add in some random magazine (Sheep Shearer Magazine, New Zealand) describing the invention and order a copy of the magazine. Then when someone else comes along and threatens a lawsuit because they patented the process, they simply show the magazine again and Bob's your uncle.

Maybe Slashdot could make an "invention" section for just this kind of stuff.

Re:Easy fix (4, Informative)

thegrassyknowl (762218) | more than 6 years ago | (#24632991)

Make an anonymous posting somewhere, describing the innovation you came up with. If it has been disseminated before, it cannot be patented.

The problem with doing that is if the invention is not obvious and has paved the way for considerable financial gain then the company can probably trace it back to you through court orders for information; regardless of how anonymous you thought you were at the time.

It _IS_ a breach of your contract to release trade secrets outside of the company you work for. It's a pretty much standard clause in every employment contract. If it is traced back to you there could be loss of job, litigation, and possibly criminal charges depending on the severity that your company puts on the matter.

Easy way to get Fired and Sued... (0)

Anonymous Coward | more than 6 years ago | (#24633055)

Easy, just follow the parent post's advice.

I can think of a half dozen things you could be sued for...
like breach of confidentiality, interference with business, real provable economic loss...

If you think the employer will never find out who posted... I've got a bridge in Manhattan that I'm willing to sell cheap!

Patents are not automatically enforced. Patent it. (4, Informative)

Draconix (653959) | more than 6 years ago | (#24632949)

If you are against software patents, the best thing you can do is get your own patents in the current state of things. Then you can choose to not enforce them, while having strong grounds to prevent anyone else from patenting it and suing you despite your work being prior art. (It can and does happen.)

Re:Patents are not automatically enforced. Patent (1, Insightful)

Anonymous Coward | more than 6 years ago | (#24633033)

He wouldn't own the patent, his company would, and he would have no say in whether to enforce it or not.

Re:Patents are not automatically enforced. Patent (2, Insightful)

Halo1 (136547) | more than 6 years ago | (#24633043)

The best thing is to publish it. If you patent it even without intending to enforce it, the patent can still be acquired later by someone who will. In fact, that's exactly what happened with the lzw/gif patent.

Re:Patents are not automatically enforced. Patent (1)

Antique Geekmeister (740220) | more than 6 years ago | (#24633189)

Publication does not necessarily prevent patenting. If the poster's employer can demonstrate, quickly, that the employee came up with the patentable idea previously, and demonstrate that to the patent office quickly enough, they can probably still get the patent. There are strange laws about timing of the application and publication of details of patentable technologies: this is what good attorneys are for.

Re:Patents are not automatically enforced. Patent (1)

matthew.thompson (44814) | more than 6 years ago | (#24633071)

What a dumb idea.

You do not own the work you do for your employer. Patenting their stuff in your name is probably an easier way to get fired than having a chat with your boss and discussing your objections to the idea of patenting software.

How "strongly" opposed are you really? (4, Interesting)

galimore (461274) | more than 6 years ago | (#24632953)

I think a better question is... is your opposition to patents so strong that you would be willing to stand up and lose your job for it?

I've been in a situation that forced me to stand up for what I believe in and was fired for it. I'd do it again in a heartbeat, because I wouldn't be able to work at a place that compromised my value system...

So is the question really whether they're able to fire you for not doing it?

How strong are your convictions, really?

As much as it pains me to say this... (5, Insightful)

CeruleanDragon (101334) | more than 6 years ago | (#24632959)

Your boss may not be wrong for patenting your work.

If your work contributed to or is a piece of code or software that your company relies on for revenue, what happens if he doesn't patent it? Someone else does. And then turns and sues your company for using "their" code. It's not hard to see where that leads. Company going under, you and your boss getting fired, etc, etc.?

I don't like it any more than the next Slashdotter, but it's not hard to picture that exact scenario.

You may have to just grin and bear it.

Re:As much as it pains me to say this... (3, Insightful)

Znork (31774) | more than 6 years ago | (#24633045)

what happens if he doesn't patent it? Someone else does.

Not if the relevant (possibly) patentable materials are already published. Write an article about whatever it is in a trade rag and it will become unpatentable.

Of course, in the gridlock crap system we have, someone else could patent a natural evolution of the subject matter, in which case having a patent to stop them from improving your thing might be useful.

You may have to just grin and bear it.

Or just, which is your duty, carefully disclose every single piece of prior art or similar idea you have read about. Which would strengthen the patent if it actually is issued, but more likely just make it obvious that whatever it is is utterly obvious to anyone actually trying to solve the particular problem.

Unions bad! "Flexible" workforce good! (0)

Anonymous Coward | more than 6 years ago | (#24632961)

Under the new world order, you can be fired if your boss simply wakes up on the wrong side of bed.

Enjoy the result of not being unionized where he at least needs a reason.

In all seriousness, though, working in today's market is not about innovating, producing or even being very creative. It's about covering your ass. People will protest this and give single-sampling anecdotes "proving" it's not the case but look at everyone you know who's been promoted and what they've done.

The rough draft of the summary: (5, Insightful)

untaken_name (660789) | more than 6 years ago | (#24632967)

"Hey Slashdot, look how cool and ethical I am! I have problems with how my company is doing something and I want to "ask" about it even though all of the relevant options are obvious! This is so everyone will know how awesome I am because I don't believe in patents!"

I mean, cool or whatever, but did you really think you were going to get any other answer than, "What's worth more, your job, or your beliefs about software patents?"

Surely anyone intelligent enough to HAVE this dilemma should be able to map out the various options and likely outcomes. At least, just as well as anyone on slashdot can.

Re:The rough draft of the summary: (0)

Anonymous Coward | more than 6 years ago | (#24633023)

Surely anyone intelligent enough to HAVE this dilemma should be able to map out the various options and likely outcomes. At least, just as well as anyone on slashdot can.

Yes, and anyone intelligent enough to have this problem should also realize that it's probably not a bad idea to ask others if they have had experiences with similar situations. I'm guessing you're in no danger having to deal with that.

Responsibilty (0, Flamebait)

WoollyMittens (1065278) | more than 6 years ago | (#24632993)

It's your managers responsibility, not yours. He can do whatever he wants with your idea, because he paid you for it. You might consider working for an employer that is less corrupt.

I went through a similar issue (4, Interesting)

Anonymous Coward | more than 6 years ago | (#24633007)

Basically I did something I thought was obvious, and the company wanted to patent it (which required me to sign a patent application). I said I wasn't willing to sign something asserting that the invention was non-obvious. Surprisingly, the lawyer was ok with this objection (maybe he'd heard it before). He pointed out that the patent application doesn't itself assert non-obviousness anywhere, it only requires me to state that I did the work (which was true). Non-obviousness is determined by the examiners. If their assessment differs from mine, that's not my fault.

I too am opposed to software patents and wish they would go away, but a situation where the stuff I work on doesn't get patented, but others patent stuff to use against me, is unilateral disarmanent, which is just stupid. I went ahead and signed the application and the patent issued a while later, adding one to the tens of thousands of other stupid and basically useless patents out there. That's not such a great situation, but I figure I signed up for it when I agreed to work for a non-free software startup to begin with. I similarly am opposed to excess carbon emissions but still drive my car more than I really have to.

The startup I worked at eventually failed, so now I write free software for a living. It doesn't pay as well but I like it better in other regards.

Anyway, my advice is sign the paper--if you didn't want to do that then you shouldn't have taken the money. Think of it as injecting one more piece of patent pollution into the software atmosphere. Hopefully there will be a mass invalidation of those patents sometime. Meanwhile, if you don't want to contribute to its worsening, consider that you're not working at the right place.

You have to pick your battles (1)

Iloinen Lohikrme (880747) | more than 6 years ago | (#24633015)

You have to pick your battles, not every fight is worth the cost. If I would be in your shoes I would quickly embrace your boss on seeing the wiseness of patenting the stuff you did, you both should hype it to the senior management and in the same turn negotiate with you having pre-IPO shares of the company. If all goes well your net worth will increase and in the best case scenario you get promotion and increase in your pay. With the added money you can either contribute it to political candidates and foundations that are against software patents or you can start writing articles about need for patent reform and posting them here on Slashdot.

They are going to fire you anyways (0)

Anonymous Coward | more than 6 years ago | (#24633017)

People with a mindset like that are poison for any start up. I bet they are going to get rid of you once they found a replacement. Better file that patent so you can still get a little bonus before they sack you.

Filing is step 1 (4, Interesting)

xquark (649804) | more than 6 years ago | (#24633025)

Filing for a patent does not mean you have a patent, it could take years of iterations etc to get a definite patent on something and even then people may still contest it. My suggestion is that if you're inclined to stick to your morals (which btw I don't totally agree with) , to go with the flow but sort of keep the filing so general and vague that any monkey could come along and contest it. At the end of the day you're not a patent lawyer, you can't be accused of not doing your job properly.

Also don't bite the hand that pays your salary.

Start by [re-]reading your eployment contract (1)

ivi (126837) | more than 6 years ago | (#24633027)

First Q: If you're so dead set against your company patenting your software IP, did you negotiate (eg, by crossing-out lines of your contract that apply to it) by way of -precluding- your unwilling involvement and/or conflicts that might arise over your tenure with this organisation?

If not, I don't like your chances.

2nd Q: How committed are you to your position?

If your employer asks you to choose between your job & your position on Software Patents, are you prepared to forfeit your job?

(Of course, even if you choose to depart from the present context, eg, to make a statement that everyone involved in the current negotiation would understand, there's every chance that your [then-to-be past-] employer would still go ahead and apply for the patent, after you've been replaced.)

The best way is to work for yourself, eg, in a small group of like-minded people, and be careful about what you sign... set an example, that others might pick-up & try.

(The guy, who runs Photo.net has a couple of books, one of which outlines such a structure, based on groups of 5 talented people, who - together - create database-based web sites, on their own terms, for their clients; roles such as project lead & client liaison rotate after each completed project, and people have different skills, useful to project goals.)

I hear 7/11 is hiring...... (0)

Anonymous Coward | more than 6 years ago | (#24633029)

Ultimately it's principal or paying the rent. The real point isn't companies applying of patents it's the patent department issuing them. It's their right to apply for any patent so long as they pay the fee the decision is with the patent department whether is justified or not to issue the patent. You can apply for a patent for swinging a dead cat over your head before you hit Build, it's not your fault it's the fault of the morons at the patent office for issuing you the silly patent. Most of them don't understand computers enough to know what falls under obvious. Your parent company may be filing more as a self defense. I'd guess the majority of software patents are to avoid being sued by some one that comes up with the process later and manages to get a patent on it. You can claim prior art but that doesn't stop you from blowing a 100K on lawyers to defend your prior art. It's cheaper and easier for most to just file patents then they know they are covered if it's issued. If it's overturned later then it wasn't patentable and they are still covered. Holster your personal views, file the patent, and cash your paycheck and be happy. Want to not participate in the patent frenzy? Once again 7/11 is hiring and I'm fairly sure they don't require counter people to file patents.

You can be fired for anything (0)

Anonymous Coward | more than 6 years ago | (#24633037)

Yes

You are hired to do a job, not practice personal politics.

Brief chat (1)

macjosh (1047136) | more than 6 years ago | (#24633049)

I'd try and talk with the guy. Let him know your concerns, and outline the reasons why you think software patents are stifling. I think you can reasonably express your discomfort to submitting a patent without losing your job. He might change his mind, he might not. However you would still be obliged to fulfil his request.

You're confused (2, Insightful)

eggstasy (458692) | more than 6 years ago | (#24633057)

There's a place where you follow strict orders and shut the fuck up. It's called your job.
There's another place where you can fight for ideologies, it's called a trade association.
You can both be a good worker and a good activist, if you know your place and timing :)

Read your contract (1)

Windrip (303053) | more than 6 years ago | (#24633063)

Read your employment contract.

Typically, it says you will cooperate with any patent filing decisions or actions. Your employer certainly owns any work product produced in association with your employment. Your employer certainly will receive any and all royalties from the patent. Whether they must share the benefits of the patent with you depends on the contract.

sux 2 b u

The better way is... (2, Interesting)

wellingj (1030460) | more than 6 years ago | (#24633091)

Trade Secret [wikipedia.org] . It gives you all the same protections of a patent and has no limit on enforceable timespan, but disregards people who develop similar things of their own accord. It doesn't prevent reverse engineering however, but that's seldom needed for software. By the time someone can reverse engineer a software product, it's of little use anyways.

AFAIK, at John Deere my boss has patented mechanical things, and we have made Trade Secrets out of software.

Re:The better way is... (1)

wellingj (1030460) | more than 6 years ago | (#24633121)

I forgot to mention that Trade Secrets are also Patent Protection as Prior Art if the Secret in question pre-dates the Patent.

Speak with your boss... (1)

dave420 (699308) | more than 6 years ago | (#24633107)

... off the record. Tell him your stance on patents, and if he wants to go ahead with it, go along with it. Or quit. Those are your choices.

You disobeyed an order (1)

gilesjuk (604902) | more than 6 years ago | (#24633111)

You were told to do something by a manager and didn't do it. I think you will get a warning and next time you will get fired.

Whatever your beliefs, you have to do things at work when you are told to or find another job.

Software patents may stifle innovation and competition, but if you work for the company that has all the patents then surely your job is safer?

Patents only stifle innovation if you let them (1)

Zorque (894011) | more than 6 years ago | (#24633117)

If you don't chase after people who infringe on your patents, that's your prerogative. Why you would go ahead and let people get rich off your life's work while you get nothing from it, however, is beyond me. Let people use your work if you want, but the patent process allows you a way to screen who exactly gets to use it, and what they get to use it for. At least this way nobody'll be building a death ray based on your ideas.

Re:Patents only stifle innovation if you let them (1)

jrothwell97 (968062) | more than 6 years ago | (#24633233)

your work

The problem is that even though it's his/her work, the contract he/she signed at employment probably gives all the rights to the company, so in the law's eyes, it's the company's work. So it boils down, annoyingly, to your job or your morals.

In hindsight, a better option would have been to negotiate a contract with the company where you retain the rights to your idea and your code, but you agree to always license the software to them for free.

True, software patenting may be the most insane and outmoded concept since having bingo on primetime television, but the law is the law and US employment laws are very much laissez-faire with regard to morals and ethics. (Another problem is that the only law that seems to protect people from unfair dismissal with regard to morals and ethics is discrimination based on religion: if you're an atheist, basically, you're screwed. Sorry.)

It's called insubordination (1)

d_jedi (773213) | more than 6 years ago | (#24633129)

And yeah, you definitely can be fired for it.
By all means, talk to your boss and outline your concerns.. but if push comes to shove, and your boss demands that you do it, and you outright refuse, you may very well be looking for a new job.

FSuck!? (-1, Offtopic)

Anonymous Coward | more than 6 years ago | (#24633147)

steAdily 7ucking

What do you want? (1)

maestroX (1061960) | more than 6 years ago | (#24633159)

Can you be fired? Yes. And in case of a no, the situation will be worse.

Can you live with it? Yes. And in case of a no, the situation is worse.

Find another job or let it be, but don't wait for others to make the decision..

it's called work kiddies (1)

timmarhy (659436) | more than 6 years ago | (#24633171)

when did this idea that doing shit your told to do at work is optional? i blame gen Y. wait till the next big depression i'm going to run around with a camera taking photo's of their sad faces.

Ties! (1)

Tablizer (95088) | more than 6 years ago | (#24633185)

I'm politically against ties. They are an inappropriate offensive phallic symbol, carry germs because they are hard to clean well, a safety hazard as they get caught in shredders and fans, and make people turn up the AC, contributing to global warming. Can I get fired for refusing to wear one?

Check your contract, ask a lawyer (2, Insightful)

wrmrxxx (696969) | more than 6 years ago | (#24633191)

That's not a question anyone here can answer with just the information you have provided. It depends on your contract, and probably also on laws in your jurisdiction.

If you're likely to get fired for not supporting your boss' patent application, maybe you should consider helping with the patent application then leaving the company on your own terms. Having a patent on your resume might help you move in to a better class of job where your concerns will be respected more.

Job openings (0)

Anonymous Coward | more than 6 years ago | (#24633205)

Hey /. is advertising job openings now. How timely :))

Seriously, investors often perceive patents as a guaranty of value, and it might be what makes the difference between a successful IPO or a just fine one. For that matter your CEO might have not much choice -- it's his job to get the best value for the investors. Now, if you disagree with the whole concept, what are you still doing there?

BTW, some employment contracts may require that you participate in preparing the patent even after you leave your work (and generally you get compensated accordingly). You may want to check the contract.

Educate your employer (1)

pieterh (196118) | more than 6 years ago | (#24633237)

The problem is not really whether or not you can be fired, but why your employer is asking for patents in the first place.

Usually, it's because they have received advice from lawyers, or because they feel it will increase the value of the company.

In some markets, holding a patent can be very profitable but only if the conditions are right. Mainly, you need to be the only firm with patents in that area and you need to file patents that are basic enough to capture the full market.

If your firm is not in this position (which is very rare if not impossible today), then filing patents will increase, rather than decrease the chance that the firm will enter into litigation.

Filing software patents makes it more, not less, likely that the firm will be sued for patent infringement. This is worth explaining to your employer. The reasons are ironic: a firm that holds a patent in a lucrative area becomes a competitor to other patent holders, and they typically start a patent ambush by attacking other patent holders. Only when these fights are settled will they go on to attack the market. So it's small patent holders who get the bulk of the most aggressive litigation against them.

If your firm can establish a portfolio of patents this can provide some defense against other product-making firms. But it's useless against a patent troll, and these form the growing majority of patent licensing operations. A firm with patents thus becomes a litigation target for a second reason: it is a way to get the patents for cheap.

In conclusion: taking software patents can be very dangerous, and explaining the risks can be a good way to educate your employer to share your view on software patents.

The only useful reason for software patents I know of is to get tax benefits, and this can be done with patents in areas that no-one cares about and where litigation is unlikely.

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