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Journal of Law, Information and Science
Levine on Pharmaceutical Patents comments 1 ]. Levine on Culture and IP comments 0 ]. Levine on Patent Trolls comments 1 ]. Note that here we are making a distinction between patentability and use. An employer pays an employee to perform a job; the employer should have the right to make use of the results of that employee's work. The right to make use of the product of paid labor is known as a "shop right" in legal parlance.
Shop rights are independent of any patent system, do not create a monopoly, and should be preserved, even if the result is better than the employer could have expected. An employee should have the right to file for a patent on her or his own, but if one is granted, they should not have the right sue the employer who paid for the work for using it. In practice, a system in which employees can file patents independently would not look a lot different from today's sytem.
In most cases, given that an employer offers modest compensation and recognition, the employee will happily forego the cost and effort of an application for a patent whose utility might be questionable on its own. Even if they did not immediately assign the idea, it is likely they would be willing to sell the granted patent, at a somewhat higher price, to the employer, who if they are using the idea have a more compelling interest in the granted patent than others.
Or an employee could simply refuse to file, avoiding the creation of another often unjustufied monopoly.
defending the right to innovate
The result would be a small net transfer of some assets from corporations to their more ingenious employees. The change may be deleterious to investment returns, and perhaps to patent attorney fees, but harmless or mildly beneficial to society as a whole.
And in those rarer cases where an inventive idea is truly revolutionary, the inventor can choose to offer it to a competitor or charge off on their own. Society is presented with at the least a duopoly rather than a monopoly, a generally less-harmful result. What about the case where the invention involves "proprietary" information, that is, information which the corporation does not wish to release to the public?
We first recall that in the existing system, an inventor must reveal all information needed to practice the claimed invention, whether or not it is assigned to an employer. If an invention is assigned, and an application filed, disclosure has occurred. So the only dispute is over those cases where information would not be disclosed if not for the possibility of receiving a patent on it. The correct response touches on the question of why society should encourage concealment at all, the answer being in general that we should not.
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Keeping tactical information secret for short times is useful to businesses, and has minimal impact on society, but long-term secrecy has no social benefit and merely encourages concentration of information and therefore wealth. It would therefore be reasonable to give an employer the right to impose a slightly-longer delay to publication say, 24 months for applications filed by employees and not assigned to their employers, with a corresponding delay in independent disclosure.
Society as a whole has no reason to enforce indefinite secrecy on any citizen to benefit a business, and should not do so. And no restriction should apply where the inventor can show that only public information about buying antibiotics online , and the invention itself, are disclosed. In the United States, employee-employer relations are mostly administered by the state governments. Reform of these arrangements is therefore a state-by-state activity, which has the benefit that the impact of changes can be examined before the whole country bears a risk.
In California, for example, compulsory assignment is limited by section of the California Labor Code, which protects the right of an employee to pursue a patent for an invention which is not related to his or her work and did not use the resources of the employer. In other states, like Texas, employees are not so lucky, as we saw previously. As Professor Lobel has shown in her book, the limitations on assignment that already exist in California have not impaired innovation in that state, but have arguably enhanced it an obvious conclusion for those who live here in Silicon Valley.
Further reform can be pursued without expectation of catastrophic consequences. The first object of curiosity is why Mr. Brown didn't have the sense to conveniently forget that he'd ever thought of the solution, at least until he had moved to a jurisdiction with more respect for individual rights.
But the underlying question to be asked is: why is an employee compelled to assign rights to inventions to their employer?
The authority for "intellectual property" law in the United States, section VIII of the US constitution, gives Congress the privilege of establishing exclusive rights for "authors and inventors". It makes no mention of corporations or other employers. Corporations normally require their technical employees to sign agreements compelling the employee to assign all exclusive rights to the corporation.
The theory underlying compulsory assignment is the idea that technical employees are "hired to invent". This is an interesting contradiction in terms. If an employee is hired and paid to solve a certain problem, we can reasonably assume that the employer expects the problem to be solved with high probability of success, and therefore the solution to the problem is an expected result of the activity for which the employee is paid.
If the solution is the expected result of asking a person of appropriate skill to work on a problem, how can it be non-obvious that is, surprising and not expected to such a person? If the solution is an expected result of the activity, and therefore obvious or at least hardly surprising, how can it be inventive enough to deserve a patent?
If it is surprising that an employee solves the problem they are assigned to solve, we should expect employees to be paid to fail in the normal expected case. I have not observed such an inclination in my three decades of commercial employment. We are led to conclude that "inventions" that are made in the course of work that an employee is expected to complete cannot be patentable.
A World Without Intellectual Property? Boldrin and Levine, Against Intellectual Monopoly
Only inventions that are not related to their assigned work could be regarded as surprising and non-obvious. If corporations don't like this answer, they have to admit that they don't hire people to invent novel and surprising things.
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One solution to the conundrum, of course, is to abandon the bizarre categorization of ideas into "obvious" and "non-obvious", by using claimless patents, as advocated in our earlier posts. If this is not an acceptable path, corporations and courts ought to abandon the doctrine that an employee is "hired to invent", and realize that any actual non-obvious inventions must be surprising, unexpected, and not the predictable result of being paid. Therefore those inventions don't belong to the employer, but to the inventor, as prescribed by the Constitution.
In the next post , we'll examine some sensible revisions of the doctrine of compulsory assignment. What a DeLorean is Good For If you've read this series of posts you know that this image is mostly mythological. The vast majority of patents are owned by corporations at filing, and describe minor modifications of what has gone before, if they describe anything useful at all.