"2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."
Of course, if you have any specific questions you'd want to talk to a lawyer to make sure you were interpreting it correctly for your situation.
Washington State: http://apps.leg.wa.gov/rcw/default.aspx?cite=49.44.140
In most states, the answer is "yes, it probably does". It varies from state to state, of course, and the definition of "completely unrelated". In the nicer states, it's about what is related to your employers business, or the demonstrable/anticipated research and development of your employer. Most engineers get this very wrong, or have no idea about all the things their company does.
The only common country i'm aware of in which the answer is definitely "no, it belongs to you", is switzerland.
As for legal battles, plenty. Most of the time, the company wins. I'd say 70-30.
Usually because most companies are willing to come to arrangements to avoid litigation, so when they don't, it's often something egregious (one way or the other, be it company trying to claim something they shouldn't, or employee trying to sell something employer should definitely own).
California does not, and does not say what most engineers think it does.
It says companies can own inventions that:
(1) Relate at the time of conception or reduction to practice of the invention to the employer's business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer.
#1 is read fairly broadly. Most think it just says #2.
Its sort of like 'copyleft' except it sucks into Google anything you touch, and use at least once at work.
And always be dubious when the company lawyer says, "Well that is what it says but that isn't what is meant by that clause." Because in a court of law, what it says counts.
Verbal employment contracts are enforceable in in all 50 states.
When you have a written contract, any and all verbal contracts or amendments mean absolutely nothing. It's called the "four corners doctrine" and is a pretty universal judicial practice. Written contracts always, ALWAYS supersede any verbal agreements: with a written contract in hand, any mentions of oral discussions are irrelevant and will fall on deaf ears.
FWIW the Wikipedia definition, http://en.wikipedia.org/wiki/Four_corners_%28law%29, contrasts sharply with your use and doesn't really seem to speak at all to overwriting of terms by further contracts.
Yes, if A and B walk into court and say that the verbal contract exists, it is enforceable. But in the common case, A will deny that the contract existed (or disagree on the terms) AMD without any evidence, the contract is lost.
Now if there is evidence (both sides had taken specific actions obviously in accordance with the verbal contrac, that they otherwise would have no reason to do), ther might be a case. But really, without evidence, the abstract rule will not connecg to concrete instances. Get evidence for everything.
The way I understand it those clauses are written to prevent the kind of situation where you have a problem at work, can't solve it, go home, solve it, then offer to license it to your employer the following day for a reasonable charge.
And if an employ doesn't do any work at work and just does this sort of thing: fire them, then hire them as a consultant. The business just lost most of the tax burden of supporting an employee, e.g. pay roll taxes, insurance, etc. And the employee just got even more intensives to work the way they were before.
I really don't get Americans. Capitalism is good everywhere, but not in the workplace where we need to treat everyone like the dirty peasant they are.
I think the real problem is if the company was sharing in the profits of the invention, and companies took care of workers as they did back in the day, this would not be nearly the point of contention it is.
My father's company pays you for getting a patent, then pays you a percentage for their profits related to that patent, I dont know how they do the math, and it is likely favorable, but the rub is that there is tangible benefits to you for inventing things, oh wow!
When someone invests in your creativity, they are entitled to the agreed returns. You are free to find funding on other terms elsewhere.
I found myself in this situation too, but after an investigation the company was not significantly interested in my work enough to pursue it further.
Edit: I should add that plenty of groups within our company, while officially bound to the same agreement, were unofficially free to do similar work without consequence. Our group suffered from a leader who wanted to do things "by the book".
How do they know you did it at home, not during work hours? How do they know it didn't affect your work? If you're salaried, there aren't set start/stop times. How do they know they weren't paying you at the time you came up with the idea, or thought through a problem? Did you do it on a work laptop? Did you use a copy of Photoshop that work paid for? Is it something you did for your job, and now you want to sell it to other people -- even if the code has been rewritten?
Again, I don't think it's very enforceable or even a good idea. However, I can understand why a lawyer would slip it in.
I agree. So don't work there.
Organizations tend toward pessimism because people respond more strongly to shame, insult, and embarrassment (of themselves and others) than to victory, pride, altruism, and shared glory. They turn toward a certain paranoia. That's why there's so much HR literature on how to conduct "low performer" witch hunts (get those time thieves!) while companies don't do the least thing to support high performers (except offer them more money when they seem likely to leave).
Ultimately, most things controlled by humans devolve into feudalistic, dysfunctional reputation economies in which the trade of social credibility becomes the only thing that matters, and the organization's original purpose is either forgotten, ignored, or half-assed. There are counterexamples and exceptions and processes that prevent this, but they're uncommon. Most companies have much fear of the humiliation of "that guy" stealing time to launch his own career, and only a slight background hum (if even that, as sometimes it's dead silence) of fear for the real existential threats: crumbling morale, widespread distrust, and the death of innovation.
My understanding is the exact opposite [1]. At least that what we were often taught in our teacher prep classes. I know that other research indicates that people are more loss averse than gain seeking [2], but I'm not sure that indicates that a pessimistic environment is actually productive in the long-run. I think that may be your point though, in your second paragraph.
[1] http://www.psychologytoday.com/blog/family-affair/200809/rew... (applying to children)
[2] http://www.inc.com/magazine/201304/issie-lapowsky/get-more-d...
He is saying that more people on average will respond more directly and immediately to punishment than reinforcement.
The context is that organizations' behavior influence via punishment is a short-term tactic: in the long run, we would like to believe that reinforcement poses a net gain. However cultural influence results in short-term behavior control tactics from organizations prevailing, and little heed paid to the tradeoff.
One might also argue that it is cheaper in the short term to punish than to reward, and this further perpetuates the downward cycle as a staple of organization culture.
People who have a positive self-image respond more strongly to victory, pride, and altruism, because it resonates with how they see the world. If someone tries to shame or insult them, they remove themselves from that person's presence, or shrug off the insult by recognizing that other person as trying to discharge his own emotional hurt on other people.
The interesting thing is that both worldviews are self-reinforcing. The latter kind of people typically refuse to work with the first, because why would you put yourself in a position where you're listening to someone who only understands shame, insult, and embarrassment? As a result, positive people tend to work only with other positive people, and negative people tend to work with only other negative people (this usually manifests itself as scheming and backbiting, as few folks have the courage and social-ineptness to be negative to one's face). Their worlds and experiences become congruent with their worldviews, which just confirms the worldviews in the first place. That's why psychologists often say that negative fears often cause themselves to come true: they make you act in a way that pushes away positive experiences and attunes you to negative ones.
It is possible to shift between worldviews, but this is often psychologically traumatic for the person involved and involves some sense of crisis. Going from negative to positive, the catalyst is often psychotherapy, a strong mentor, or having a core value (like a child's well-being) threatened. Going from positive to negative, the catalyst is often economic, being trapped with a bad boss or in a bad relationship because you lack the means to leave. Teachers and parents are taught to focus on positive emotions because they effectively are the ones to start the cycle off, and children are trapped in their care. It's not really that children innately respond better to one or another, it's that the way you treat them primes them for what sort of reinforcement they will accept later on in life, and so if you want children who naturally respond to and offer positive reinforcement, you should model that early on.
No, that's because a company is trying to reduce its expenditures. If a high performer isn't leaving, the company sees no evidence of any advantage in paying them more.
Concerning the property of the tooling: if I bring my personal stapler to work, it's enough to taint everything I staple as my own property? how do we decide the property of the company paper I stapled with my staples? You can say it's reputed being the company property because you're on work time in company premises, but the whole principle of reputation is that you can bring a proof against (the stapled paper is your house insurance contract for example).
The problem though is company's like IBM cover so many areas that things get vary fuzzy.
(citing myself:)
Don't think, that in Germany the situation is that much better. We might not have those agreements in the contracts, since in Germany there are (luckily) many regulations what can be put into contracts. But the German law has also some specialties: For example, when you make an invention in your free time, even when it has nothing to do with your current job, you must first ask your employer, if he wants to buy the invention, if you want or not.
(3) Eine Verpflichtung zur Mitteilung freier Erfindungen besteht nicht, wenn die Erfindung offensichtlich im Arbeitsbereich des Betriebes des Arbeitgebers nicht verwendbar ist.
The law also stipulates that for any invention or major improvement, even for the ones that you do during your work time that your employer wishes to keep the rights for, you're entitled to a fair compensation. So yes, if you invent something that is related to your employers business, the employer gets the first right. But I do think that the situation is much better - you at least get compensation.
How could one say, that something is "offensichtlich" (apparently) not usable in the business of the company. With any bigger company and when you take the software business and you program something for your own, you are caught. Which type of software related invention would "apparently" not be usable for (e.g.) Microsoft?
I have also spoken with German lawyers about that topic and what they told me, was not so rosy.
What is meant by "fair" compensation? I doubt very much, that this is regulated in detail and in effect the compensation will be what your employer says. For employee-inventions you also get some compensation ... and that should be fair too, I guess? But it is not, what I know. The compensation that regularly is given to the inventors inside a company get a fraction of the patent filing costs (in the US and also counting lawyer costs). I doubt that that could be counted as "fair", when the lawyers get more from the invention than the inventors.
Of course this sucks that you can't do it stealthily, but you usually can get a carve-out. IANAL though.