Under CA Labor Code 2870, can employers require employees to disclose inventions that the employee believes fall under 2870?

Asked 7 months ago - San Francisco, CA

While I understand that Employers want to know what they do and do not own, requiring that employees disclose any and all inventions that they created outside of work would give the employer an argument: "Hey, you didn't disclose, so you've waived your rights under Section 2870".

Such an argument seems, on its face, to be against the public policy being promoted by the Code.

Am I wrong?

Attorney answers (2)

  1. Jon Anthony Dieringer

    Contributor Level 11


    Lawyer agrees

    Answered . When a business operates in a technical field and inventions can be expected, employers want to be assured of ownership of those inventions developed in the course of employment. The agreement may require disclosure - in confidence - of all inventions conceived by the employee during employment, to allow the employer an opportunity to assert its ownership rights.

    If the employee fails to disclose an invention he claims to have developed on his own time, the failure to disclose may be an admission that the invention is not private.

    So, in a nutshell, you are likely wrong in your belief that disclosure of your invention is against public policy - your undisclosed invention will be presumed to be owned by the employer.

    So, do you really want to risk it? You may want to confer with a good local employment law attorney to protect your rights to your invention. Good luck.

    This information should not be considered legal advice or a legal opinion, and it does not create an attorney-... more
  2. Randy Jay Harvey

    Contributor Level 15


    Lawyer agrees

    Answered . Regarding a potential violation of public policy you are likely referring to subsection LC 2870 (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." This provision only applies when the invention does not result from any of the previous provisions of the same code, meaning that if you developed the invention while working for the company, or the invention relates to the business of the company or results from some knowledge you derived while working on a company project, the employer may have a right or interest in the invention.
    If any of the elements of LC 2870 1. (a)(b) then the employer may have a claim on your invention. The disclosure of your inventions to your employer may raise a question of a claim by them, however, they will raise the claim later if they find out you invented something while working for them. If you truly developed it separate from your employment then you would not be harmed by disclosing it. I would advise you to get a written non-disclosure agreement with your employer before providing the details of your invention to them, so that they cannot share it or take it.
    You should consult an intellectual property attorney or an employment attorney regarding your rights.

    NO LEGAL ADVICE GIVEN. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as... more

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