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'[ot] fairness in patent rights, was:[PIC] Remove I'
2004\11\10@025053 by hilip Stortz

picon face
unless it has recently changed (which it may have, there has been a move
to make u.s. patent law consistent with that of most other countries) a
corporation can indeed be issued a patent in it's name, rather than in
the name of the employees responsible independent of eventual ownership
or license as agreed upon in advance.

I have no objection to patent rights being sold to corporations (though
only allowing one company to use the substance of a patent is contrary
to the principles of free trade and innovation).

as for voluntary agreements, this is the rub.  for many technical people
entering into such an agreement in return for employment is not optional
as it has become common practice amongst all major companies (at least
here in the u.s.), thus if a technical person wishes to be employed in a
technical field they do not have any real power to negotiate this point
of their employment.  i have a problem with this.  i particularly have a
problem when it is applied to non-technical employees, patents that may
be devised long after working for  a given company or which do not have
any connection to that companies business or the technical work the
employee has done for them.  
i would argue that this is in fact does hamper innovation by
substantially removing much of the incentive to invent by substantially
and often fully striping the inventor of the profits derived even when
said patent was developed without resources of the company they may work
for.  If an individual or group agree to work towards patents and that a
given party or employer will provide resources towards the realization
of a patent being issued or developed then i have no problem with some
equitable agreement as to the ownership and licensing of the patents
produced in that effort.  
however, if i work for an electronics company, as an EE, and happen to
have other technical interest outside work and pursue those without
company support i don't consider it reasonable that the employer should
automatically have any interest in or right to those patents, nor do i
think it is reasonable to require such a contractual agreement as a
condition for employment.  i do think it is reasonable in the case of
patents in the field the engineer or other employee is being employed
in, provided that they be non-exclusive and that there is some guarantee
of reasonable compensation beyond the normal salary, again particularly
in the case of non-technical employees.  for instance, if i work for a
semiconductor company as a chemist, and happen to also have an interest
in biology and develop a new antibiotic on my own (which is possible up
to the point of clinical trials etc. where outside financing would
certainly be needed and a partnership formed with some company or group
of companies or individuals) i don't see it as reasonable for said
semiconductor maker to have any automatic ownership interest in said
antibiotic or other medical patent unless it is directly related to the
professional employment and projects worked on as part of that employment.

"voluntary" agreements cease to be voluntary when all or most companies
in a given business sector require them as a term of employment and the
individual ceases to have bargaining power over those terms.  the fact
that a practice is wide spread or that people routinely subject
themselves to it does not imply that a practice is ethical or
economically correct.

this is one of the "dangers" of allowing multinational companies to grow
without bounds, it accrues to them power simply because of their size
without regard to what is ethically reasonable or in the best interest
of the individual, the economy, the business sector, or society at large.

in my specific case, does any one think it reasonable that the local
electricity supplier should demand full ownership of any patent granted
to me during my life, no matter how long after their employment or what
field that patent is in, in exchange for a job reading utility meters? surely the hourly compensation for this job is grossly inadequate to
make such an arraignment equitable.  non the less, people need to work,
the scarcity of jobs motivates many to ignore this inequitable
requirement in order to obtain short term employment.  this agreement
completely removes any economic incentive they might otherwise have to
ever invent any thing, for the rest of their lives no matter what the
field of endeavor.  clearly this is not equitable or reasonable, and i
seriously question how "voluntary" such an agreement is and whether it
should be allowed by law in such a clearly inequitable case.  
as i said, in some jobs, i can see some fairness in there being some
agreement about patents developed during the term of employment, for a
fixed time period there after, or having directly to do with what one
has worked on for a given employer, however i see these agreements
becoming ever broader with little if any additional compensation going
to the employee and i would argue that this does hamper innovation as
well as being fundamentally immoral.  yes, if i work for hp, as a
product development engineer, then it is reasonable for me to agree that
they will hold any patents derived from my work or by me with some small
limitation, but in this job position it is expected specifically as a
part of the job that the employee will devise patentable ideas (it's my
understanding that in many positions such as this failing to come up
with a patentable idea within 1 year of employment will cause dismissal,
which i don't see as unreasonable) as this is clearly part of the job
description and will result, presumably in increased salary or other
compensation as well as job retention.  
where it becomes absurd and unreasonable is when the same standards are
applied to lower level workers who's job security clearly does not
depend on producing patents and where any such patent produced for the
company would go well beyond the expected job performance and yet the
employee is not compensated at all or significantly and may not even
expect increased job security for their effort on behalf of the employer
or when it is done entirely on their own behalf and at their own expense
and yet the employer gobbles up all of the rewards.

it is "your business" when two parties enter into a "voluntary"
agreement when those 2 parties have grossly different amounts of power
in the contractual relationship and when this agreement harms society at
large by hampering advancement or depriving the individual of proper
compensation as it will not be limited to the two parties involved, but
rather will involve many, many employees over time at many different
companies and becomes a gross distortion of what is fair and equitable
as it will eventually affect you and as the individuals involved will in
fact want outside involvement of the greater society to attempt to
equalize the powers of the parties involved, as in the setting of an
equitable minimum wage so that people can not be grossly exploited and
under compensated simply because they do not have the power or any real
choice other than to give in to such unfair agreements.

when all parties involved feel that an agreement is fair and enter into
it truly voluntarily then i agree, it is no one else's business, but
when one class of party is consistently victimized and coercerced into
unreasonable and unfair agreements then it is in societies interest to
intervene.  this is one of the main duties of the legal system, though
it is obviously far from perfect or fair in itself.

in the specific, narrow case you suggest i would agree, it is not my
business nor that of any uninvolved party.  however that assumes that
something of value is traded for something of roughly equivalent value,
which is often not the case.  indeed i have a patent idea that i believe
would be worth a great deal, and i would be more than happy to agree
that a given party would receive significant ownership of it in exchange
for financing or other assistance, i would not agree that it should
belong to the local power company just because they may have once
allowed me to read meters for them and was paid accordingly for that
unrelated job function.  that to me is a theft and a betrayal, and most
definitely hampers innovation.

Olin Lathrop wrote:
{Quote hidden}

------

-- “it is possible to fool all the people all the timeówhen government and press
cooperate.”-George Seldes, 1938 <http://www.wanttoknow.info/buzzsaw10pg>
<www.tompaine.com/articles/kerry_won_.php>
<http://207.44.245.159/article7217.htm>
<http://www.cooperativeresearch.org/project.jsp?project=911_project>

___________________________________________

2004\11\10@032408 by Jan-Erik Soderholm

face picon face
Hi !

Regarding :

> Subject: Re: [ot] fairness in patent rights, was:[PIC] Remove IC

When changing subject tag, be aware that if you include the old tag
in the subject, it will still be sent to the old tag receivers also.

So, when posting anything more in the patent thread, please
remove the PIC tag...

Best Regards !
Jan-Erik.

____________________________________________

2004\11\10@033705 by Wouter van Ooijen

face picon face
> I have no objection to patent rights being sold to
> corporations (though
> only allowing one company to use the substance of a patent is contrary
> to the principles of free trade and innovation).
>
> as for voluntary agreements, this is the rub.  for many
> technical people
> entering into such an agreement in return for employment is
> not optional
> as it has become common practice amongst all major companies (at least
> here in the u.s.), thus if a technical person wishes to be
> employed in a
> technical field they do not have any real power to negotiate
> this point
> of their employment.

I think you will have to make up your mind. Free trade (including labour
contracts) or regulations (including patents)?

IMHO the patent principle in itself can help innovation (it has done so
in the past, and still does in some areas like medicine), but the
current practice (trivial patents, court procedures instead of
pre-patent examination) is a serious problem.

In my country (Netherlands) IIRC any idea from an employee that can be
seen as part of his work is automatically (and without extra payment)
owned by his employer, any idea that is beyond this but 'generated'
during work is owned by the employer but a reasonable extra payment is
required, the rest is owned by the employee. A labour contract that
tries to arrange things differently will have serious trouble in court.

Wouter van Ooijen

-- -------------------------------------------
Van Ooijen Technische Informatica: http://www.voti.nl
consultancy, development, PICmicro products
docent Hogeschool van Utrecht: http://www.voti.nl/hvu


____________________________________________

2004\11\10@034605 by Bob Axtell

face picon face
Philip Stortz wrote:

{Quote hidden}

These agreements have little weight in some states, which have realized
that such agreements are too
onerous. Example: in Georgia, USA, such agreements can be signed all day
long, but in fact are null and void
after 3 years. This applies to NDA's and other documents as well. Other
states are adopting this as well.
Ask a good lawyer about the laws concerning employer-employee
relations.... if you can find one. Its
not as bad as you might think. Even in less astute states, very few of
these things are actually enforced.

--Bob

{Quote hidden}

--
Note: Attachments must be sent to
spam_OUTattachTakeThisOuTspamengineer.cotse.net, and
MAY delay replies to this message.
       520-219-2363

____________________________________________

2004\11\10@084603 by olin_piclist

face picon face
Philip Stortz wrote:
> as for voluntary agreements, this is the rub.  for many technical people
> entering into such an agreement in return for employment is not optional
> as it has become common practice amongst all major companies (at least
> here in the u.s.), thus if a technical person wishes to be employed in a
> technical field they do not have any real power to negotiate this point
> of their employment.

This is nonsense.  I've negotiated intellectual property agreements as part
of an employment contract several times.  A lot of the standard contracts do
say that the company owns everything, but I've found it very easy to push
back on this.  For example, I'm doing work for a local company currently and
specifically have permission to persue outside interests as long as I don't
do it on their time, at their place or using their equipment, and it's not
related to their business (which happens to be indoor location).  Their
standard employee agreement doesn't allow for this, but it really wasn't
very hard to get this changed.  This is probably because they recognize it's
fair.  This experience was typical of other related situations I've seen or
been part of.  This is really no different than negotiating salary or any
other working condition.

My first day at Apollo computer in 1986 was filling out forms and the like
in the morning.  When it got to the employee agreement I refused to sign it
because of obnoxious and unreasonable clauses related to intellectual
property.  A bunch of lawyers started scurrying around and I given a bunch
of BS by some faceless manager, but two hours later a reasonable empoloyee
agreement was presented that I did sign.


*****************************************************************
Embed Inc, embedded system specialists in Littleton Massachusetts
(978) 742-9014, http://www.embedinc.com
____________________________________________

2004\11\10@093015 by Eric Bohlman

picon face
Bob Axtell wrote:
> These agreements have little weight in some states, which have realized
> that such agreements are too
> onerous. Example: in Georgia, USA, such agreements can be signed all day
> long, but in fact are null and void
> after 3 years. This applies to NDA's and other documents as well. Other
> states are adopting this as well.
> Ask a good lawyer about the laws concerning employer-employee
> relations.... if you can find one. Its
> not as bad as you might think. Even in less astute states, very few of
> these things are actually enforced.

In particular (IANAL) as I understand it courts are unlikely to uphold
agreements that have the effect of preventing an employee from doing
future work in a field that requires substantial or specialized
training.  For example, a requirement that an employee assign all future
patents, for the rest of his life, to the original employer effectively
prevents him from doing any future work that involves creating
patentable inventions, since his future employers wouldn't be entitled
to the patent rights.  Therefore it would be unlikely to be upheld.  A
requirement, OTOH, that the employee not work for one of a small named
list of competitors for a limited time after leaving employment would be
very likely to be upheld, except in cases where those competitors were
the only companies who would be at all likely to hire anyone with the
employee's specific training.  At the extreme, an agreement forbidding
the employee from doing any paid work at all after leaving the employer
(or requiring him to turn over any future salary to the original
employer) would be obviously unenforceable.

I seem to remember some decisions that said that non-contractual
employment agreements aren't enforceable if their primary purpose is to
limit the employee's future job mobility (i.e. make it difficult for him
to quit his present position) rather than to prevent competitors from
taking unfair advantage of proprietary knowledge gained during current
employment.  If a company really wants to prevent employees from
quitting, it's always free to offer them employment contracts and the
restrictions it takes on as a result (such as not being able to fire the
employee just to get someone cheaper) are the price it has to pay in
return for the benefit.
____________________________________________

2004\11\10@094549 by madscientist

picon face


Wouter van Ooijen wrote:
--------
> I think you will have to make up your mind. Free trade (including labour
> contracts) or regulations (including patents)?

on the contrary, as in many things i feel a hybridized approach will
work best, if properly balanced and implemented.  while free trade is
good in many ways, it also has many flaws in terms of it's effect on
society which can be reduced by careful (but not excessive) regulation.
of course this winds up being dynamic as the two forces fight for
dominance sometimes when things become politically abstracted too far.

> IMHO the patent principle in itself can help innovation (it has done so
> in the past, and still does in some areas like medicine), but the
> current practice (trivial patents, court procedures instead of
> pre-patent examination) is a serious problem.

i essentially agree with all that you have said above.  my biggest
problem with the current patent system is the ridiculous number of truly
trivial patents.  any one who gets "nasa tech briefs" (or is it "notes")
knows what i mean, any time an employee builds anything they apply for
and receive multiple patents, on even the simplest and most obvious
design.  at the same time the patent system is granting patents all too
often that cover prior art and well known methods and totally fails to
properly test the applicants claims to "uniqueness".

> In my country (Netherlands) IIRC any idea from an employee that can be
> seen as part of his work is automatically (and without extra payment)
> owned by his employer, any idea that is beyond this but 'generated'
> during work is owned by the employer but a reasonable extra payment is
> required, the rest is owned by the employee. A labour contract that
> tries to arrange things differently will have serious trouble in court.

That seems fair, to an extent.  here in the u.s. the employer often has
the employee agree that any and all patents they may develop will belong
to the company without any compensation to the employee, in some cases
this takes the form of a free license, in others it takes the form of
the company owning the license.  and as i said, the most ridiculous and
extreme case i found where the power company wants to own any thing that
any former employee ever comes up with in any field with no
compensation, even when that employee was a simple meter reader.  surely
this is an extreme and unreasonable demand for the employer to make, and
clearly it removes all incentive a present or former employee could have
to pursue any patent, hence any ideas will tend to be left in the drawer
undeveloped.  i certainly agree that anything you develop at work is
reasonably property of your' employer, though i agree with the
requirement to provide them with some reasonable compensation.  sadly in
the u.s. employees, even technical people, are frequently viewed by
management in the same terms they view furniture or any other equipment,
i.e. something to be exploited and used and not appreciated as unique
even when they come up with something brilliant.

--
Bush himself, perhaps the truest of Wilson's disciples, has gone even
further, declaring the United
States' purpose is to eliminate evil itself.--<fairuse.1accesshost.com/news2/latimes386.htm>
Does Bush think he is doing God's will, or does he think he is God?
Such men are always remembered
as the Lunatic tyrants they are, eventually.

____________________________________________

2004\11\10@105011 by Herbert Graf

flavicon
face
On Wed, 2004-11-10 at 01:53, Philip Stortz wrote:
> as for voluntary agreements, this is the rub.  for many technical people
> entering into such an agreement in return for employment is not optional
> as it has become common practice amongst all major companies (at least
> here in the u.s.), thus if a technical person wishes to be employed in a
> technical field they do not have any real power to negotiate this point
> of their employment.  i have a problem with this.  i particularly have a
> problem when it is applied to non-technical employees, patents that may
> be devised long after working for  a given company or which do not have
> any connection to that companies business or the technical work the
> employee has done for them.  

Definitely not true, at least not anymore. In fact a company I know of
(VERY big company) USED to have clauses like that in their employment
contracts, things like "everything you do, during business hours, out of
business hours, at home or anywhere else, is ours". Not quite that
brutal, but that was the gist. The latest contract? None of that, only
the reasonable: work you do on company time and/or on company equipment
is the company's.

Remember, just because something is in a contract doesn't make it so, a
company can't enforce a clause in a contract you sign that isn't legal
to begin with. I'm not sure if this sort of stuff is "illegal", but I
think the lawyers noticed that it wasn't very cut and dry and taking it
out was probably the better move. TTYL

-----------------------------
Herbert's PIC Stuff:
http://repatch.dyndns.org:8383/pic_stuff/

____________________________________________

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