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Is it normal/just for a software company to ask for power of attorney to ensure they obtain patents on anything you invent while you are employed as a programmer?

Update:

In my case, I went back the the employer. They told me they have no interest in using my inventions which are not related the domain that were not invented during company hours, using company resources.

The company encourages open source contribution, and will not interfere in that regard.

I further examined the contract, and at the point where the term 'inventions' is defined in legal speak, it stated that inventions in the context of this agreement were only those developed using company resources within company time.

Power of Attorney allows the company to ensure they can get my signature (or equivalent in my absence) for any inventions which they may wish to patent.

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@Rein I think it's fine. I think it's more likely to occur in a software firm than, say, accounting office. After all, programmers create/invent things. –  Anna Lear Jun 15 '11 at 19:05
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Yes, it is quite specific to programmers as well as to other creative professions, but it's not applicable to most of the other job. –  user8685 Jun 15 '11 at 19:05
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These kinds of agreements make me mad. I think employers only get away with them because there is so much pressure to sign. You've probably been through the interview phase, may have declined other offers, may even have started the job. Then they bring in an agreement like this and act like it's just a formality? I'm happy to sign an agreement not to moonlight, and I might even sign over patent rights to anything related to the exact field of work the company is in, but unlimited patent control over anything I might happen to think up in my spare time is beyond the pale. –  PeterAllenWebb Jun 15 '11 at 19:21
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@Peter, Spot on! If it makes you uncomfortable don't sign it. For one company they said I needed to sign a Non-Compete JUST to come in for the interview because they would be divulging company secrets. I told them "absolutely not" and they acted stunned like nobody had told them no before. I got a call back 5 minutes later saying I didn't have to worry about it and they still wanted to meet me. On an unrelated note when I showed up for the interview the manager said something to the effect of, "Why don't you just stop being a ***** and sign the document." I walked right out the door. –  maple_shaft Jun 15 '11 at 19:35
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Maybe they want the power of attorney so they can change all the employees' names to Fred. Makes it easier for management to manage if they don't have to learn your name. –  BBlake Jun 15 '11 at 21:07

10 Answers 10

up vote 2 down vote accepted

Usually the PoA is for matters related to getting a patent. It just means that the company can get a patent for your inventions with out having to include you or get your approval to do so. This does not give them PoA for anything else. I was under the impression that the blanket statement was much easier to contest, so it has been my experience the NDA and/or work product agreement include a clause that allows them to recover legal fees should you try to contest ownership of your work product. And a specific power of atty agreement is signed when submitting patents. The 2 that I have signed covered a single patent and one that covered 3 related patents. But I signed seperate POA for each of the two filings.

If you do not understand what is being asked of you spend $100 for an office hour and have an atty review it.

If you have an invention you are working on now and plan to continue to develop get an attorney to write up a waiver agreement for it. It will be worth the money.

If you get an idea for something that is not in your company's normal scope of business they will probably sign off on you developing it on your own, but they are not required to and once it is disclosed that you had the idea while employed they can claim their rights to it. If it is in their scope of business they almost certianly will even if they have not desire to develop it.

DISCLOSURE: I AM NOT A LAWYER. I AM PROVIDING MY EXPERIENCE AND ANACDOTES WHICH FOR ALL YOU KNOW IS COMPLETE BS.

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Also note that laws vary from place to place, so it's impossible to post a general solution. –  David Thornley Jun 15 '11 at 21:42

Power of attorney seems overkill to me. See Wikipedia for more information (thanks @unholysampler). Basically, it can give someone authorisation to act on your behalf in all legal matters. For something to do with patents/copyright you shouldn't need to go this far (IANAL caveat applies), so make sure that, if your employer insists you sign, the scope is limited.

Consult a real lawyer before signing anything like this if you are unsure of what's going on.

However, it's usual for an employer to own anything an employee creates whilst engaged on company business. Some try to extend this to anything you create, even if it's done on your own time, on your own equipment at your own house. I'm not a lawyer so I don't know how enforceable this is and I suspect it depends on where you live.

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+1: Power of Attorney is something much larger than claiming rights to intellectual property. –  unholysampler Jun 15 '11 at 19:09
    
I can confirm that the company's ability to own what you create on your own time is highly location specific. In NY they can, in California, not so easily. –  btilly Jun 15 '11 at 19:11
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It could be a limited power of attorney, but yes, you'd have to be insane to grant them full power of attorney. –  PeterAllenWebb Jun 15 '11 at 19:14
    
@Peter - true, but I'd be wary of signing away any of my legal rights to my employer. –  ChrisF Jun 15 '11 at 19:18
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Patents are a bit of a special case. An actual person has to be listed as the inventor, even though the invention is assigned to GLOBAL MEGA CORP. I suspect some lawyer is just being extra careful in case some jurisdiction has extra case law for patents - for example 10years after you leave the company they might need your permission to file in some country that doesn't exist today. Just make sure the thing you sign only covers your inventions that you make while with the company. –  Martin Beckett Jun 15 '11 at 19:20

Read attentively this discussion: If I'm working at a company, do they have intellectual property rights to the stuff I do in my spare time?

TL;DR; It is being practiced by some companies to lay claim on every employee invention during work time, off hours and even a certain period (heard of up to 5 years) after the employment ends. Companies mostly do it out of paranoia and because the legal department wants so. Among developers this attitude is considered evil and it is generally recommended to avoid these agreements at all costs.

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I've never heard of a power of attorney being requested. I would insist on running it by a lawyer before signing, to see exactly what it means and allows. If there were any problems with getting legal advice, I'd take it as a sign of bad faith.

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but if I have to get legal advice before I can start working somewhere that's a problem already. I'd just walk away. –  Kevin Jun 20 '11 at 15:39
    
@Kevin: I'd say that's reasonable, in which case companies which require onerous legal paperwork will be at a disadvantage in hiring. Fine with me. –  David Thornley Jun 20 '11 at 15:52

I understand it's not uncommon to see a clause like that in an NDA. I have seen and signed NDAs like that myself. Here's a link to a short article about ways employers can insure access to intellectual property. It targets employers, not employees.

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IANAL, but it is extremely common that all intellectual property you create while employed by a company belongs to the company, even if done off-hours and at home without the use of any company resources. The latter part is simply because it is impossible to prove that you "invented" something on your personal time and resources.

Accompanying this a Non-Disclosure Agreement is a common document that states you will not divulge company secrets without permission, these typically don't hold up in court very well.

Non-Compete agreements are less common but still normal, stating that you will not start a competing company or work for a directly competing company during and after work tenure for a disclosed amount of time. These also generally don't hold up well in court.

Many times a company that pulls out an NDA or NCA and threatens legal action will result in settlement out of court and this usually only happens if you or your enterprise have reached a modicum of success.

There are exceptions though, http://www.abajournal.com/news/article/as_former_h-p_exec_heads_to_oracle_company_sues/

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I seem to recall reading some advice on this subject before, to the effect that if you have an idea for something you want to work on in your personal time after having signed one of these agreements, that you can go to your employer and have them sign off on something drawn up by a lawyer saying that your particular personal project is exempt.

Does anyone know anything about this?

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It's not normal but can happen. I think it's quite inappropriate for a company to ask to own your intellectual property for work you've done during your own time. Power of attorney though? that's just going too far. I never sign away any power of attorney to anyone, unless it's to my mum when I am incapacitated from a car crash :P

I would say DO NOT SIGN unless you fully understand what is actually happening here. And as ChrisF suggested, I would take it as bad faith for anything more than owning your rights after work hours.

There are exceptions though, you might have unusual working arrangements that legitimise this agreement.

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I think I've seen a company use something similar to this of power-of-attorney. An employee contributed significantly to a really key invention in the course of doing his job, but then left the company, due to unrelated reasons and before the patent could be written up and filed. The patent application had to list all the inventors, so his name was on it; but he ignored the requests to come back and sign it for some unknown reason. So the company used the power-of-attorney to sign and submit the patent application for his invention for him. Or something like that (since IANAL).

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I once applied for a job with a University. They sent a contract with the application pack, and once of the clauses was something along the lines of 'anything I invented to assist with my work - even if I developed it outside of work hours'.

Which I think is fair enough. Just about.

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