Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

Before you choose to head back to the Classic look of the site, we'd appreciate it if you share your thoughts on the Beta; your feedback is what drives our ongoing development.

Beta is different and we value you taking the time to try it out. Please take a look at the changes we've made in Beta and  learn more about it. Thanks for reading, and for making the site better!

Should Inventions Be Automatically Owned By Your Employer?

Unknown Lamer posted about a year ago | from the whole-greater-than-parts dept.

Patents 291

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."

cancel ×

291 comments

Sorry! There are no comments related to the filter you selected.

A rate should be set at hire (5, Interesting)

Anonymous Coward | about a year ago | (#42164275)

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

Re:A rate should be set at hire (-1)

Anonymous Coward | about a year ago | (#42164289)

Fuck you, you fucking statist.

Depends .... (5, Insightful)

DaMattster (977781) | about a year ago | (#42164295)

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.

Re:Depends .... (4, Insightful)

pwizard2 (920421) | about a year and a half ago | (#42164337)

If you're on the clock at work, then yes, it counts as a work/invention for hire. Even if you're salaried and don't really clock in, the invention/project should be 100% yours if it's something you invent/build out of your own house or garage.

People have a life outside of work, after all.

Re:Depends .... (0)

Anonymous Coward | about a year and a half ago | (#42164621)

My terms of employment say that patents arising from work are split 50-50 for the first $x,000 and then I think 75-25 in favor of $EMPLOYER. Anything which isn't work-related is mine (but of course $EMPLOYER won't file paperwork for me).

Re:Depends .... (4, Informative)

gr8_phk (621180) | about a year and a half ago | (#42164639)

If you're on the clock at work, then yes, it counts as a work/invention for hire.

Nope. It's still yours in the U.S. Most employers who anticipate any inventing on the job require you to sign an agreement at the time of hire stating that everything you invent is theirs. Some of these agreements are very nice and cover job related stuff, others try to include unrelated stuff you think of in the shower. And even then, you have to sign paperwork to assign an individual invention to the company.

Re:Depends .... (1)

Anonymous Coward | about a year and a half ago | (#42164777)

Whether you're on company time or not, and whether the invention is related to the company products or not, the company still owns the patent if the patent belongs to the field the company is involved in. At least that is what I saw in many employment contracts. For eg: your invention is in software/hardware, then the company owns it automatically (assuming the co. is in software/hardware). But if it is outside that field, say a toothbrush or a car, then the company allows you to keep rights to that patent.

The feudal system still exists in the field of intellectual property.

Re:Depends .... (4, Insightful)

PopeRatzo (965947) | about a year and a half ago | (#42164813)

People have a life outside of work, after all.

What a quaint and archaic concept.

Re:Depends .... (3, Insightful)

jhoegl (638955) | about a year and a half ago | (#42164821)

As most high level positions are Salary, I dont think "on the clock" works for everyone.

Re:Depends .... (5, Insightful)

icebike (68054) | about a year and a half ago | (#42164549)

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).

Re:Depends .... (5, Interesting)

Shoten (260439) | about a year and a half ago | (#42164721)

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.)

Re:Depends .... (2)

icebike (68054) | about a year and a half ago | (#42164829)

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.

Your copyright exists from the time you type the words on the page. That it had not hit the street in book form yet had no bearing on the case.

So your CURRENT employer may have had a claim against your book, but your prospective employer wouldn't.

If you still had wanted to work for that prospective employer, you would have won any court case. But why the hell would you want to work there?

Bringing it back around to my post to which you were applying, perhaps point 5 should have been:
  5) the invention must have been created wholly during your time of employment

I forgot to mention in my post (above) that ALL the rules had to be met for your employer to claim the invention.

Re:Depends .... (0)

Anonymous Coward | about a year and a half ago | (#42164745)

My job duties include "other duties as required", there is no patent agreement in place though and what I create is mine to have and hold.

Re:Depends .... (0)

Anonymous Coward | about a year and a half ago | (#42164815)

You act like patents have value to anyone other than our corporate overlords. Assuming that premise though, I think your post is otherwise pretty insightful.

Re:Depends .... (1)

DragonTHC (208439) | about a year and a half ago | (#42164837)

also specifically if you're employer has hired you to invent something.

Re:Depends .... (0)

Anonymous Coward | about a year and a half ago | (#42164897)

Agreed. And if you happen to "give" it to your employer and want to take it back someday, make sure that you create a contract of some sort. Otherwise your invention belongs to your employer because you were the irresponsible one who did not protect the result of your creative process. If they want it badly enough, they'll be more than happy to create a contract. Whether they accept your terms is another matter, but the bottom line is that if they don't buy into your plans and your invention is useful enough, someone else will buy it.

irrelevant (5, Insightful)

shentino (1139071) | about a year ago | (#42164297)

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.

Re:irrelevant (-1)

Anonymous Coward | about a year and a half ago | (#42164309)

No signature, no job.

Where do idiots keep getting this stupid bullshit from? You're not an indentured servant. Your employment contract works both ways, and believe it or not most employers are just as keen to employ you as you are to to have a job. They'll negotiate on the contract.

Re:irrelevant (2)

jamesmusik (2629975) | about a year and a half ago | (#42164371)

Every single R&D employer requires employees to assign all inventions. There is no way that is negotiable. Your pay/commission/whatever for having to do so may be, but there's no way around this requirement in today's employment market.

Re:irrelevant (1)

Anonymous Coward | about a year and a half ago | (#42164399)

Every single R&D employer requires employees to assign all inventions. There is no way that is negotiable.

Not even slightly try, it depends on where you live. Try that in Europe, for example.

Re:irrelevant (1)

jamesmusik (2629975) | about a year and a half ago | (#42164419)

Since this post is about U.S. patent law, I'm not quite sure how Europe is relevant.

Re:irrelevant (3, Interesting)

Anonymous Coward | about a year and a half ago | (#42164503)

I'm sure the point is the US needs to get some actual employment laws. You guys have guns for this sort of thing, right?|

Re:irrelevant (2)

artor3 (1344997) | about a year and a half ago | (#42164663)

Which goes back to what the OP said. that we need to "make it illegal for employers to ask for certain concessions."

Seriously, are you just trolling or what?

Re:irrelevant (0)

Anonymous Coward | about a year and a half ago | (#42164599)

Exactly what happened to me on my first day at IBM back in 2001. Part of the packet of papers we had to sign at orientation - no signature, no job. No chance to "negotiate" as I had no idea that was coming while we were in "negotiations" before that day.

Re:irrelevant (4, Interesting)

Shoten (260439) | about a year and a half ago | (#42164751)

Every single R&D employer requires employees to assign all inventions. There is no way that is negotiable. Your pay/commission/whatever for having to do so may be, but there's no way around this requirement in today's employment market.

It's not that big a problem at all...this is simply not the truth, most of the time. I've had things in progress when I joined a company; you tell them about it, explain to them that you would like an exception to the agreement, and they (almost always...see my post above) agree to that with no muss, no fuss. It's not hard, it's not complicated, and it doesn't start a big fight. Hell, it doesn't even make you less desirable; companies want people that innovate, and if you're already doing it on your own before you even show up there, that's an awfully good sign that you'll do it for them too.

I've been through that several times, and it's only been a hassle once...and that, from a corporation that is notorious for being a total cabal of asshats. Every other time was actually a good thing, and once it actually helped me in my salary negotiations.

Re:irrelevant (0)

jamesmusik (2629975) | about a year and a half ago | (#42164875)

Fair enough, you can often negotiate what exactly fits within the assignment agreement, but what I meant was that the general idea---what you make while you work for us is ours---is basically non-negotiable.

Re:irrelevant (2)

drjzzz (150299) | about a year and a half ago | (#42164865)

Universities also have rights to anything invented by their faculty. This produces the bizarre result that your own ideas, often developed through your own grants (grants that also pay "overhead" averaging >50% to the university), belong to your employer, the university that (also) uses the grant to pay you. A few universities have made large amounts of money but most have been net losers from patent costs, etc. Fortunately, universities are slowly realizing that they have a poor record of converting ideas/patents into money, so they may relinquish so rights for a stake in a resulting company.

Re:irrelevant (4, Insightful)

Belial6 (794905) | about a year and a half ago | (#42164915)

Some will. Some won't. Employers that will negotiate are like smart hot honest women. They exist. There are lots of them, and we all know some. There are not enough to go around for everyone. Heck, there are not enough jobs to go around even with people succumbing to bad employment contracts. You calling people who end up accepting crappy jobs is like calling guys idiots if they are not dating a PHD supermodel.

Re:irrelevant (4, Insightful)

DaMattster (977781) | about a year and a half ago | (#42164321)

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.

Employers count on our fear of being unemployed to bully the prospective employee to sign away their rights.

Re:irrelevant (1)

History's Coming To (1059484) | about a year and a half ago | (#42164347)

Simple solution: invent a virus, let it rip, refer all calls to the owner of the virus.

Re:irrelevant (1)

pwizard2 (920421) | about a year and a half ago | (#42164353)

Doesn't mean you have to take the contract as-is (at least that was the case before this fucked-up economy made opportunity harder to find). It's possible to cross out parts that are deal-breakers for you, like non-compete clauses or situations such as this where the employer would claim anything you make whether it's done on your own time or not. If the employer agrees to the changes then you're only bound by the modified contract.

You have the right to.. (1)

careysb (566113) | about a year and a half ago | (#42164391)

You have the right to modify an employment contract before you sign it. I've specifically modified the company's right to ownership clause for my last three jobs and haven't had any issues. My last job also required a background check and the contract implicitly allowed them access to my personal info for the rest of my life; changed that to 30 days.

It must be nice. (0)

Anonymous Coward | about a year and a half ago | (#42164523)

My last agreement was a "take it or leave it". I needed the job so I bent over and took it up the ass.

Re:You have the right to.. (1)

Rich0 (548339) | about a year and a half ago | (#42164919)

You have the right to modify an employment contract before you sign it.

Of course, but the employer also has the right to not hire you. I doubt that they're going to strike ownership of inventions made on company time. They might not even strike ownership of inventions made on your own time, though I think in practice if you came up with something of serious value unrelated to your work it would be hard for them to claim ownership even with the contract.

Re:irrelevant (2)

phantomfive (622387) | about a year and a half ago | (#42164467)

A) You can cross stuff out of the contract when you sign it. Presumably they want to hire you as much as you want to work there (on average).
B) Some things don't matter even if they are on the contract. In California, they can put that they own your work, even if you do it on your own time, but that contract is invalid. It won't stand up in court. There are things you can't put in a contract.

Re:irrelevant (1)

jamesmusik (2629975) | about a year and a half ago | (#42164889)

Do you have a citation to a case that has invalidated a patent assignment clause? California likes to invalidate terms of employment contracts, but that's a stretch.

Employers have so much power (2, Insightful)

Anonymous Coward | about a year and a half ago | (#42164469)

because people are making babies too fast.

Re:irrelevant (0)

Anonymous Coward | about a year and a half ago | (#42164587)

I signed the wrong name with my non-writing hand. I did it quickly and it looked natural. The HR dweeb took the form and shoved it in with the rest first day material.

Re:irrelevant (0)

Anonymous Coward | about a year and a half ago | (#42164625)

As long as he's ready to testify that he witnessed you make some sort of mark, the mark itself is irrelevant.

Re:irrelevant (0)

Anonymous Coward | about a year and a half ago | (#42164695)

Well done, your employment contract with your employer is now equally invalid for your employer is it is for you. Double bonus, you've committed fraud.

Re:irrelevant (1)

Endovior (2450520) | about a year and a half ago | (#42164679)

Bleh, I know what you mean. There was a 'we get to own your inventions' clause in the contract for the last job I had, even though the job itself was a bullshit minimum wage tech-support deal. If they can get you to sign it, it's legal. If you don't feel like signing, there's plenty of people clamoring for a job, they don't need you specifically.

Re:irrelevant (1)

hobarrera (2008506) | about a year and a half ago | (#42164843)

What do EULAs have to do with it? You can always reject them and that doesn't mean you don't get job, or have any issues in your everyday life at all.

the whole concept of property (5, Interesting)

alienzed (732782) | about a year and a half ago | (#42164319)

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

Re:the whole concept of property (0)

Anonymous Coward | about a year and a half ago | (#42164373)

property is theft. lol

Whole system is broken (0)

Anonymous Coward | about a year and a half ago | (#42164421)

We can't reform the patent system because the government itself is broken. The media sucks and even the dialog is warped where I.P. propaganda plagues the discussion. (There is no I.P. it is a PR term to manipulate the debate.)

Multiple inventors should split ownership. Only people should be allowed to own it (so we have to fix that corporation==people insanity.) The employer if involved in any material way should get a share of the ownership (the company owner, not the corp.) Ownership should be non-transferable. If I sign rights over, it is still technically mine and if I die the expiration and inheritance stuff kicks in. I could break contract and possibly just like a mega-corp, make more money breaking contract than following it. Nobody who actually INVENTS something new (seems to be rare today) should never be laid off after making their employer millions/billions. It really doesn't matter if they are paid or provided resources, their brain power produced it, not the money.

Re:the whole concept of property (1)

Anonymous Coward | about a year and a half ago | (#42164427)

Removing the concept of property based on the idea that we should share everything has been tried, and was a spectacular failure. You might could argue intellectual property is different since it is not scarce. However, arguing against the whole concept of property in its entirety just means your ignorance of human nature is only exceeded by your ignorance of history.

Re:the whole concept of property (1)

DoofusOfDeath (636671) | about a year and a half ago | (#42164535)

You should be gentle with the poster. His view is a phase.

Re:the whole concept of property (1)

Anonymous Coward | about a year and a half ago | (#42164675)

arguing against the whole concept of property in its entirety just means your ignorance of human nature is only exceeded by your ignorance of history.

Most (all?) small tribes don't have the notion of property - nobody owns the land, the trees, or the animals. Property (imaginary or not) is not natural, but an artificial construct.
Not that it matters, in the end, since we should do what's best, be it natural or not.

Re:the whole concept of property (1)

phantomfive (622387) | about a year and a half ago | (#42164477)

The reality is that we're sharing everything.

What does that even mean? I assure you sir, that you shall never share my dentures. And if you do, they become yours and I get new ones.

Re:the whole concept of property (0)

Anonymous Coward | about a year and a half ago | (#42164707)

It would be splendid if you (yes you, dear poster) could differentiate between property and possessions.

Isn't it simple? (1)

boddhisatva (774894) | about a year and a half ago | (#42164327)

If someone pays you to make something, it's theirs. If you do it on your own it's yours. If you develop a tool to make the thing you were hired to make, the tool belongs to the workman...especially if it saves the contracting party money. Otherwise, on a time and materials contract you have no incentive to be creative.

Re:Isn't it simple? (0)

Anonymous Coward | about a year and a half ago | (#42164355)

So as part of a large software project I create a clever data abstraction layer. You could convincingly argue that is both the work you were hired to produce and a tool to help produce the work.

Re:Isn't it simple? (3, Insightful)

Deadstick (535032) | about a year and a half ago | (#42164417)

IANAL, but you'd bloody well better talk to yours before you try to invoke that principle.

Re:Isn't it simple? (1)

icebike (68054) | about a year and a half ago | (#42164711)

If someone pays you to make something, it's theirs. If you do it on your own it's yours.

No, its not yours.

If I hire you to design a boats, and you go home and design boats in your spare time, I'm going to win that law suit 100 % of the time.

If you have boat designs already when you get hired, you better have proof somewhere, or better yet disclose them under a NDA agreement.
And you better give up your hobby of designing boats from then on, even if you do it at home.

That is what this topic is all about. Its not as simple as your time vs employer time.

Re:Isn't it simple? (1)

Gorobei (127755) | about a year and a half ago | (#42164853)

It's not so clear cut. If you are willing to pay me $100K/year to design boats, it's pretty clear I am already an expert designer.

You want a copyright on a boat I designed for you: fine, you get it.

You want a patent that covers any ideas I had before I joined your firm? Let's talk - no matter what I signed with you when I joined your firm, that patent app is in my name and belongs to me. If you want me to sign it over to you, we talk. No court is going to hold you at fault for not signing some random X, then being forced to assign the rights to Y.

Of course (1)

Anonymous Coward | about a year and a half ago | (#42164329)

Otherwise, how would Edison have invented so many things?

Re:Of course (2)

SJHillman (1966756) | about a year and a half ago | (#42164437)

It helps when you own the company you work for

Re:Of course (4, Insightful)

Mashiki (184564) | about a year and a half ago | (#42164489)

Otherwise, how would Edison have invented so many things?

That's easy, by being a patent clerk and being the worlds first patent troll.

The copyright 'work for hire' doctrine is unfair (4, Interesting)

mysidia (191772) | about a year and a half ago | (#42164331)

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.

Re:The copyright 'work for hire' doctrine is unfai (1)

girlintraining (1395911) | about a year and a half ago | (#42164591)

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.

You're killing american jobs, you know that, right? If we don't approve this, they'll be forced to take the jobs overseas, where such protections will be easier to obtain. Every attempt to restrict the profits of employers means less jobs for us, and jobs are what matter here, not letting some esoteric hippy non-sense about who owns what get in the way. And we all know that rich americans are the best kind of americans. Don't you want more rich americans? Employers already pay too much in taxes and health care and even have to pay for medical care if you do something stupid and get hurt at work. With such onerous restrictions on free trade, it's a surprise jobs haven't left our economy more quickly. For us to compete in the global marketplace, we need these kinds of legal restrictions lifted, so we can focus on the important business of generating profit and jobs, and not having to worry that some guy that wrote some code years ago when he worked as an intern might have rights to the code the business runs on.

*vomits a little in her mouth* I can't believe I actually wrote all that... but it had to be done, because that'll be the arguments raised against this. Now for a nice piping hot cup of reality: Those jobs will be shipped overseas regardless of what laws are (or aren't) passed. Rich people have no loyalty to their country, or their workforce, and neither should you. Fuck them over for every penny they're worth. Leave with zero days notice if you get a better job. Let them drink the free market koolaid too. And when it comes to copyright law... patent law... all of that, business exists in parts of the world where this doesn't, and in fact a lot of those jobs going overseas are going there precisely because they don't have the very laws they're lobbying for here.

Those laws are there to extract money from you, and make it all but impossible to be anything but a wage slave, with almost all of the money you earn going right back into their pockets... and it'll keep being this way until they figure out a way to do without you entirely through outsourcing and whatnot. Don't listen to the siren song of "profit and jobs", it's just a lie they tell you to keep you in line. The truth is; We don't need any corporations. We don't need money either. It's possible, though not likely right now, to live without them and to have a brilliant society. But it'll take courage, and a willingness to endure tensions and hardship, to move past our restrictive legal, economic, and military superstructure and towards a world where everyone's contributions are recognized and rewarded, and where we all share in the fruits of our labor, instead of giving most of it to middlemen that create nothing.

That world starts by saying: I own what I create with my own hands, what I think with my own mind, and nobody can ever take it away. Anyone who does, is immoral, and it's my duty to resist.

Re:The copyright 'work for hire' doctrine is unfai (1)

khallow (566160) | about a year and a half ago | (#42164759)

You're killing american jobs, you know that, right?

You have advocated ideas in the past that kill jobs. So that is a valid point to make when appropriate and probably why you have heard it in the past.

*vomits a little in her mouth*

That is a stupid meme. Please stop doing it.

That world starts by saying: I own what I create with my own hands, what I think with my own mind, and nobody can ever take it away.

But you can trade it away. Which is your primary value in a modern economy. All these actions are voluntary. If you don't like such a contract, then don't agree to it.

Now for a nice piping hot cup of reality: Those jobs will be shipped overseas regardless of what laws are (or aren't) passed. Rich people have no loyalty to their country, or their workforce, and neither should you. Fuck them over for every penny they're worth. Leave with zero days notice if you get a better job. Let them drink the free market koolaid too. And when it comes to copyright law... patent law... all of that, business exists in parts of the world where this doesn't, and in fact a lot of those jobs going overseas are going there precisely because they don't have the very laws they're lobbying for here.

Go for it. However, you'll reap what you sow.

Re:The copyright 'work for hire' doctrine is unfai (1, Flamebait)

girlintraining (1395911) | about a year and a half ago | (#42164823)

You have advocated ideas in the past that kill jobs.

Translation: "I agree with you this time, and I hate myself for it."

That is a stupid meme. Please stop doing it.

Translation: I'm cool enough to know what internet memes are, but too hipster to use them myself.

All these actions are voluntary. If you don't like such a contract, then don't agree to it.

Translation: I have never just clicked 'Accept' when an EULA pops up because I live in a fairy-tale world where my idiosyncratic notions of fairness are never questioned.

Go for it. However, you'll reap what you sow.

Translation: I'm too old and jaded to be optimistic about anything anymore, and you should be too.

You don't understand "work-for-hire" (0)

Anonymous Coward | about a year and a half ago | (#42164665)

For example:

if you are hired to write custom software for an organization, by default that work should belong to you

It does, unless your contract specifically transfers the copyright.

It's NOT a "work-for-hire". See CCNV v. Reid. (YOU Google that one!)

A "work-for-hire" has to exactly fit the very narrow legal definition AND the contract has to state "work-for-hire" in it.

Basically, works-for-hire are not creative - translations, compilations, etc.

Or what you do in the normal course of what you're getting paid to do.

This [wikipedia.org] is a good summary:

The circumstances in which a work is considered a "work made for hire" is determined by the United States Copyright Act of 1976 as either

        (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. 101)

The first situation applies only when the work's creator is an employee, not an independent contractor.[1] The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency,[1] in which a court looks to a multitude of factors to determine whether an employer-employee relationship exists. In the Supreme Court case affirming that the common law of agency should be used to distinguish employees from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid,[2] the Court listed some of these factors:

        In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. See Restatement 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:

        the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
        the work must be specially ordered or commissioned;
        there must be a written agreement between the parties specifying that the work is a work made for hire.[1]

In other words, mutual agreement that a work is a work for hire is not enough. As a general practice, such commissions specify an exclusivity period, confer publishing rights to the commissioning organization, or exempt the commissioning organization from performance and print royalties. For vocal works such as operas, a common practice is for the author of the text to be compensated as work-for-hire and the composer of the music to assume full rights under the copyright law.

When forced to rely on an implied license, a hiring party often finds that it has only limited rights to alter, update, or transform the work for which it paid. For example, a motion picture feature may hire dozens of creators of copyrightable works (e.g. music scores, scripts, sets, sound effects), any one of which could limit use of the entire film by denying permission to copy their contribution; the producers avoid this scenario by requiring that all contributions by non-employees fulfill the work-for-hire requirements.

The I.P. clause (2, Interesting)

Anonymous Coward | about a year and a half ago | (#42164343)

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.

Re:The I.P. clause (1)

Deadstick (535032) | about a year and a half ago | (#42164485)

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?

Easily: you exercised your right to sell it when you signed the contract.

Re:The I.P. clause (1)

Niobe (941496) | about a year and a half ago | (#42164645)

So I should first negotiate to keep the rights (and by that I assume copyright?) to any existing work when I move jobs?

Re:The I.P. clause (1)

Todd Knarr (15451) | about a year and a half ago | (#42164785)

It depends. In California, that answer according to California Labor Code sections 2870-2872 [ca.gov] the answer is a very definitive "No.".

Re:The I.P. clause (1)

viperidaenz (2515578) | about a year and a half ago | (#42164871)

None of my contracts ever said that. All of them said that everything I create while they're paying me.

Depends on how much of your life they buy (4, Insightful)

KC1P (907742) | about a year and a half ago | (#42164363)

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.

Re:Depends on how much of your life they buy (2)

Deadstick (535032) | about a year and a half ago | (#42164447)

IANAL, but if it were quid pro nothing, you'd be free to ignore it, because it would not be a contract.

Re:Depends on how much of your life they buy (-1)

Anonymous Coward | about a year and a half ago | (#42164739)

Bullshit.

Re:Depends on how much of your life they buy (1)

icebike (68054) | about a year and a half ago | (#42164757)

So they pay you for 40 hours, and you develop the same damn product at home working nights and evenings, and manage (oddly enough) to sneak your's into the patent office one day ahead of finishing your work assignment.

He beats you to market with YOUR invention, that you PAID him to produce.

How fair is that?
How would you feel if you were paying that guy's salary.

Copyright law is what has it wrong (5, Interesting)

Omnifarious (11933) | about a year and a half ago | (#42164375)

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.

Absolutely! (1)

Anonymous Coward | about a year and a half ago | (#42164385)

Think about it, the average worker doesn't need residual income for over a decade just for having an idea. They should be unemployed and found dead in the street after their most productive years have been tapped. All meaningful tail-end profit will be lost in estate litigation.

Now, corporations on the other hand, they last in perpetuity and therefore have the resources and time to maximize the revenue generating possibilities of a patent. As we all know, maximizing revenues raises all boats (especially, boats that look like this [yachtforums.com] ) and that's a good thing for America.

Re:Absolutely! (0)

Anonymous Coward | about a year and a half ago | (#42164429)

It makes more sense to turn the 1% into dog food.

Re:Absolutely! (1)

queazocotal (915608) | about a year and a half ago | (#42164501)

The average worker, doing an average job, unless working on the concept of the patent takes a significant time, should never ever be able to be granted a patent.

At the moment, you can get a patent for being the first to think of a problem (not a solution) in an emerging field, and coming up with the obvious solution.

I'm reminded of a patent on how to make a gasket that wouldn't absorb soundwaves.
It was about the second or third thing any competent engineer would try, given even a poorly equipped engineering shop.

If an engineer in the future that's never heard of your patent can reinvent it trivially, you should never have been granted it.
The point of patents is to protect truly novel and important ideas.

Maybe we should ask... (1)

Lord_of_the_nerf (895604) | about a year and a half ago | (#42164387)

The Shusters, Siegals and Ditkos of the world...

They're right, actually. (1)

DoofusOfDeath (636671) | about a year and a half ago | (#42164405)

Inventions are almost always the result of collaboration. When hundreds of thousands of peers around the planet.

The employer has to own the invention (2)

dlmarti (7677) | about a year and a half ago | (#42164407)

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.

Re:The employer has to own the invention (1)

Anonymous Coward | about a year and a half ago | (#42164615)

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.

Sorry, but if you hire me to dig a ditch for you, I will leave the hole and the dirt, but all of the muscles and everything I learned while doing that work stays with me. I own it. If you hire me to write some software for you, I will leave the software and rights to use it with you as work for hire, but everything I learned and invented stays with me. Unless we explicitly agree otherwise beforehand, and you pay me accordingly to invent something specific for you, that's how it's going to work. Bargain for inventions up front. If you cannot run your company that way, that's bad for you because others can run their companies that way.

The muscles are your .... but the tools are NOT (0)

Anonymous Coward | about a year and a half ago | (#42164773)

You can take the "lessons learned" with you, but you can not take the tools (or the IP) with you.

Re:The employer has to own the invention (0)

viperidaenz (2515578) | about a year and a half ago | (#42164895)

You're saying the hole you dug is still your hole, you'll just let the company use it? Even though you were paid to dig it, you dug it with their tools, its on their property, the size and shape of it were all defined by them as well. You still claim complete ownership of the hole and its function?

Re:The employer has to own the invention (1)

Anonymous Coward | about a year and a half ago | (#42164717)

The problem with this argument is the principle of "non-obviousness". Something is not patentable if the solution to a problem is obvious to a competent practitioner in a field. Typically, employees are expected and paid to act competently. By definition, therefore, anything they discover is probably obvious to the competent practitioner. For something to be patentable, it must not be obvious, and therefore not something that could reasonably be in a job description. It is an insight or revelation that may occur, but not something that came be predicted or expected.

Put succinctly, if you can pay someone to invent it, the invention should not be patentable in the first place.

Re:The employer has to own the invention (1)

viperidaenz (2515578) | about a year and a half ago | (#42164901)

So basically, nothing is patentable unless it is done for free?

Yeah, good idea...kill all innovation! (0)

Anonymous Coward | about a year and a half ago | (#42164435)

If we can't own anything we produce in our own time then there's no purpose to having creative hobbies, tinkering, or doing anything else for that matter.

The net result can only be that the American economy will have no further role and will just stall out completely and become irrelevant.

Crowdsourcing of patent review (0)

Anonymous Coward | about a year and a half ago | (#42164441)

I think what's new about today is the technical feasibility of crowdsourcing some of the responsibilities of the patent office (in particular, those of accepting or rejecting a patent based on grounds that require engineering/scientific judgement) on a large scale. Also, there could be terms of exclusivity of varying length, e.g. 5 or 10 years instead of 20 years, which could be one of the decisions made by the reviewers on a case-by-case basis.

The reviewers would have to be

1) Identified by real name and address
2) Satisfy some minimum qualifications for the field they're reviewing, e.g. a bachelor's degree in a relevant field at a 4-year accredited university

The opinions would have to follow a form set up by the patent office which would guide reviewers to pass judgement on specific issues, from which the overall verdict (approve/disapprove) could be inferred. Reviewers would need to provide a certain amount of text backing up their opinions. Ideally, the submitting companies and engineers would not be made known to the reviewers, although this is not always feasible.

don't use degrees as a fixed minimum (1)

Joe_Dragon (2206452) | about a year and a half ago | (#42164651)

don't use degrees as a fixed minimum. Job experience needs to count as well and at max (minimum) a 2 year one.

There is debate on what is a accredited university.

In some fields degree are to board or don't even cover the area all.

What about fields where degrees are meaning less or are a very poor fit.

There is a on going push to more of a badges system.

What about stuff like trades so some who has been an plumbers and electricians for years can't be on the board?

STEM encouragement (1)

EmperorOfCanada (1332175) | about a year and a half ago | (#42164471)

In order to encourage people to get into STEM I think having some slice go to the actual inventors would be a good idea but a hard one to put into practice. For example how do you identify the guy who sticks his hand up in a meeting to cancel an 80 million dollar failure and says, "Hey did you bozos try adding salt?" which was the key to making the whole project work. Or how do you cut out the manager who divebombs the project 3 minutes before they file the patent and makes sure that the PR department only ever mentions him by name.

I can't count the number of professors that make some amazing discovery only to hear that it 100% depended on some off the scale brilliant graduate student.

If you want an interesting example of problems with credit it would be Hamilton Naki (look him up) when he first died many newspapers announced that he was a gardener with extraordinary surgical skills who helped with the first heart transplant but being black could not be credited. It later turns out that this story was false but that he was a quite medically skilled.

This all boils down to the fact that most people think that a few bigwigs make too much money while the bulk of employees are under paid. The simple solution is to raise taxes not only based upon your income but based upon the income ratio of your employees. So corporate taxes or income taxes on the highest paid should be based upon the average wage. So if your company has a bunch of minimum wage employees you pay high taxes. But if you raise their wages you lower your tax bill. These taxes should approach 100% for companies like Walmart with nearly 100% near minimum wage employees.

I am not against capitalism but I am against exploitation.

Re:STEM encouragement (1)

nschubach (922175) | about a year and a half ago | (#42164597)

So if I start up a small software company (composed of only myself and a person I hire in at minimum wage to help clean the place) then I should be taxed at 100%?

Killing innovation (4, Interesting)

Steve1952 (651150) | about a year and a half ago | (#42164479)

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.

Re:Killing innovation (0)

Anonymous Coward | about a year and a half ago | (#42164727)

Obviously laws change, but this seems to go against the story of Apple. The story goes that Woz created the first Apple computer while he worked at HP, and thus had to allow them first crack at it. They chose not to pursue it which allowed everything that came after.

Ideas as property is what went wrong... (0)

Anonymous Coward | about a year and a half ago | (#42164483)

... basically property as an idea has expanded into every domain it doesn't belong in because of commercial interest and public ignorance/stupidity and a complicit media that does everything their corporate masters say.

http://homepages.law.asu.edu/~dkarjala/opposingcopyrightextension/commentary/MacaulaySpeeches.html [asu.edu]

Who pays the bills? (1)

alen (225700) | about a year and a half ago | (#42164537)

In the past the individuals inventing stuff were rich people. In the 1800's knowing how to read was a huge accomplishment

Having knowledge to invent something new was only possessed by a tiny minority of people

Lords and Serfs (1)

Anonymous Coward | about a year and a half ago | (#42164573)

No, of course employers shouldn't own what employees think and invent. Employees are paid for what they produce for the employer. If either party isn't happy with it, either party is free to terminate the arrangement, but neither party is free to say "I'm not happy with your current output or the current paycheck amount, therefore I claim to own more of your assets." The notion that employers could do that is like a return to Britain as it was in the 1360's. Might as well make employees rent cubicles for a year in advance and base their pay on a percentage of corporate profits with terms rewritable by the employer at any point.

inventions for the inventors (3, Interesting)

slick7 (1703596) | about a year and a half ago | (#42164581)

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.

If it is in the Job Description (1)

wisnoskij (1206448) | about a year and a half ago | (#42164583)

If you are employed to come up with patentable inventions then yes, of course. And even if you spend time developing it in your free time, Intellectual property is far to intangible to really differentiate, so I can see why it makes sense to own all inventions.

If it is not in your job description (aka a main duty that you are being paid for), I do not care if it was completely worked on in your office using office supplies. They do not own you or your intellect.

Most people welcome fascism (1)

Gothmolly (148874) | about a year and a half ago | (#42164635)

An omnipresent, paternalistic government is welcomed by most of society. Why should this be any different?

as long as they pay back pay with over time and ma (1)

Joe_Dragon (2206452) | about a year and a half ago | (#42164661)

as long as they pay back pay with over time and maybe even a overtime pay penalty for unpaided time as well.

Horrible outcome (1)

gr8_phk (621180) | about a year and a half ago | (#42164669)

If it automatically belongs to the employer, they'll hire some low-end attorneys (law school interns?) and patent anything and everything that comes to mind. Right now some developer has to think something is a good idea to get a patent. If every PHB on earth can patent what the employees do, you're in for a flood of seriously horrible stuff hitting the patent office.

Completely unnecessary (1)

CajunArson (465943) | about a year and a half ago | (#42164723)

Unlike a copyright where copyright springs into existence at the moment the work is fixed in a tangible medium of expression, getting a patent is a long, drawn out, and formal process.

If you do something on the job and get a patent for your employer as part of the job, you'll know exactly who owns the patent before the patent application is even filed (your employer will be the owner 99.9% of the time barring weird exceptions). Your employment contract will spell this out in detail, and on top of that you'll also be signing an assingment agreement around the time the patent is filed, which is an agreement to assign all rights to future patents that arise from the application to your employer. This is all very formal, spelled out in black & white, and leaves little room for error assuming a minimal level of competency. In other words: In the real world, this isn't a problem and as usual there is an academic proposing solutions for a problem that doesn't actually exist because it's more fun than trying to tackle real problems, which are harder to deal with.

Load More Comments
Slashdot Login

Need an Account?

Forgot your password?

Submission Text Formatting Tips

We support a small subset of HTML, namely these tags:

  • b
  • i
  • p
  • br
  • a
  • ol
  • ul
  • li
  • dl
  • dt
  • dd
  • em
  • strong
  • tt
  • blockquote
  • div
  • quote
  • ecode

"ecode" can be used for code snippets, for example:

<ecode>    while(1) { do_something(); } </ecode>