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Intellectual Property
Patents and Patent Law

Can an employee apply for a patent?


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Answered 2007-09-08 23:39:02

Certainly. The actual holder of the patent will depend upon the employment agreement. If the employee developed the idea while working for the employer, the patent will belong to that employer. Many employers have a program set up to give a bonus to the employee if the patent is granted. If it is created outside of work, the individual retains all rights.

Depends on whether you're employed to create inventions and whether your employer has asked you to assign your rights to the company, and whether the invention is related to the company's business.

If your invention was "created" as part of your employment, then no, you have no particular right to apply for a patent, as you do not technically own it; the company does. The company could, for example, decide to keep your invention "trade secret" or (contrarily) to disclose it for the world to use without anyone able to patent it. Or they may simply not have the interest in the new discovery to justify putting any money into it.

Generally, in U.S. patent practice, an employee has a fiduciary obligation to the company to disclose all new inventions related to the business. The company can then decide if it wants to retain patent counsel for the purpose of strategizing and filing one or more patent applications. However, the name of each and every inventor (of the invention claimed) must be shown on the patent application. The patent attorney will usually ask each inventor to sign a formal "assignment of rights" in the invention and the patent(s) that may be issued.

On the other hand, a number of very successful companies have been formed when an inventor obtained permission to patent something that his employer had refused to pursue.

Other countries have rules that may differ somewhat, such as whether the company or the owner is the initial "owner" of the intellectual property, and who has the right or the power to file an application.

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