Friday, September 30, 2005

Employee Invention

DIVISION 3 Article 3.5

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
(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.

2871. No employer shall require a provision made void and
unenforceable by Section 2870 as a condition of employment or
continued employment. Nothing in this article shall be construed to
forbid or restrict the right of an employer to provide in contracts
of employment for disclosure, provided that any such disclosures be
received in confidence, of all of the employee's inventions made
solely or jointly with others during the term of his or her
employment, a review process by the employer to determine such issues
as may arise, and for full title to certain patents and inventions
to be in the United States, as required by contracts between the
employer and the United States or any of its agencies.

2872. If an employment agreement entered into after January 1,
1980, contains a provision requiring the employee to assign or offer
to assign any of his or her rights in any invention to his or her
employer, the employer must also, at the time the agreement is made,
provide a written notification to the employee that the agreement
does not apply to an invention which qualifies fully under the
provisions of Section 2870. In any suit or action arising
thereunder, the burden of proof shall be on the employee claiming the
benefits of its provisions.

Avoiding Legal Problems with Employees In California

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