When a person creates or invents something during the course of employment by another person or business, he may or may not own his creation. Typically, employer rights to the invention are determined by whether or not the individual was hired for the purpose of inventing and whether or not he used company time and resources in producing the invention. Beyond these general guidelines, however, there are a number of unique employment arrangements that may play a role in determining ownership.
Independent Contractors
Although independent contractors are hired for a particular purpose, they are not typically considered employees. They are entitled to maintain ownership rights over the work they produce, even if it is specifically produced for another party. (Often, the line between employee and independent contractor is blurred. There is a set of standards used to determine the nature of the relationship, including where and with what materials the individual works, whether or not the individual is entitled to benefits, and the role of the work done to the day-to-day business of the company.)
Independent contractor arrangements may be set out in writing, and the contract itself can be written in any reasonable way deemed acceptable to both parties. For sufficient compensation, a contractor may assign ownership over his creations to the other party. Likewise, the contractor may offer the other party unlimited but not exclusive use of an invention under the contract in an arrangement similar to the "shop rights" which an employee may be required to give his employer.
Government Contractors
In 1983, the federal government instituted a policy by which it may elect to omit patent and copyright clauses when entering into government contracts. The contractor relinquishes all patent and copyright ownership rights arising under the contract unless such rights are explicitly negotiated and included in the contract.
University Employees
Another unique employment arrangement is the one that exists between individuals and colleges or universities. Most colleges and universities utilize an employment agreement for all of their employees who are involved in research or other creative positions. Typically, the university will demand ownership rights over all things created in its labs and using its resources.
Although it will maintain ownership, a university will often attempt to promote invention and innovation with special profit-sharing arrangements. A university may, for example, agree to give a certain percentage of all profits or royalties to the inventor. Alternately, it may establish a lump sum payment arrangement for each licensing deal that results from an employee invention.
Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.
