It is a question of ownership in our high world and world of employment as well as hiring terms and employee to employer hire relationships. In the vast majority of cases invention ownership is and usually can be pinned down and determined in strict legal terms by the terms of the employment agreement.
The employee themselves can be said to determine “inventions” or invented goods and ideas if the inventions is made on “their own time” using their own facilities and equipment. The problem is in 2010 / 2011 employers seem to think that their workers are theirs 24/7 and on top of that much of the communications gear employees are using – for example blackberries or iPhones to surf the web or simpler cell phones to communicate are company issued . Using any of these devices or for example a company laptop or netbook even on the employees “own time” at say 2 am has a more muddied clarification. It is not that easy anymore to be distinct as to whom and who owes what and which idea. For example suppose the employee dreams up “his idea” on their vacation at the cottage yet uses the employer issue android phone for research uses on the internet or to coordinate efforts with someone else overseas.
Before a decision or determination is made or even before negotiations are conducted or initiated it is always best legal practice to read the employment agreement and the “small print”. Most employment agreements provide: that the employee owns the invention or intellectual property or properties if he uses the companies’ facilities or time, but the invention process is outside of his job. Interestingly though most employees in 2010 / 2011 multitask and often are involved in tasks and procedures that could be said to be “outside of their job” or expertise. Even though if the product – physical or intellectual is produced – the firm may be said to have “shop rights’ to the invention or even upgrade. What this means is that the company or organization can use the invention free of charge or any levies or fees what so ever. This is regardless of what the employee decides or chooses to do with their claimed patent.
On the other side of the executive line the company owns the invention, process idea or sets of ideas soundly if the employee’s invention falls within the scope of his or her job.
What can employers or even employees do to prevent such a gray area of conflicts to develop and arise? First of all as part of the hiring process and procedures human resources can draft up a supplementary contract document that as part of their job and terms of employment that part of their job and that their job description clearly states that part of their responsibilities and daily duties involve development, developments and research which can result in new ideas, inventions, intellectual property as well as process development.
Lastly in drafting up these documents and agreements it is best to avoid overly broad language in the agreement which could be interpreted as preventing the employee from ever competing with the employer. The reason for this is that if there is ever a legal dispute between the employer and employee, a court of law might invalidate any covenant that thus overreached the company’s lawful claim on employees.
Determining ownership of inventions and intellectual property claims between employers and employees can sure be a mine field.