UK inventors reap rich rewards
Rich as in: “boy, that’s one hell of a stink mate”.
Since the fair, balanced and neutral 1977 patent act came into being, not ONE SINGLE UK inventor has EVER won a case for compensation under the Act’s “outstanding benefit” clause (section 40).
Not one.
Not even a little one.
In 29 years.
In the words of Ricky Tomlinson: “fair and balanced my arse”.
Of course, these laws apply only to employee inventors. As an employee, inventors will benefit from other exciting opportunities:
1. the opportunity not to have your invention patented
2. the thrilling prospect of being gagged for the rest of your life (to be fair, it is only 3 years since I ceased to be employed by an “international pariah”, and in 20 or so years I may be able to talk about what I’ve achieved – maybe)
3. the joy of seeing your employer diminish your role – this one is particularly pleasurable
4. the warm feeling of knowing that your boss is being paid a big fat bonus for stealing your innovation
5. watching over privileged bureaucrats wasting your work, and being paid fat-cat salaries to do so.
6. listening to patent office staff telling you that this is perfectly normal, and you have no rights to benefit from your own creation
7. not being asked for your consent (or even being told) for a patent being raised with your name on it
8. listening to politicians constantly banging on about a “fair” society and “social justice”.
9. finding out that the 1999 Access to Justice Act DENIES access to justice
10 living in poverty (again, to be fair, your kids will be entitled to free powdered milk)
11. having your contract of employment ignored by your employer, the law and the “the Lords of property their paid liars and bumsuckers”.
So, British inventors, go to it. You are a HUGE benefit to your country.
posted by Deep Thunk @ 16:01
21 Comments:
Some comments:
1. If you were the inventor on a patent application, you have a right to be named as such (s13(1)).
2. If you are named as an inventor on a published application, you have every right also to publicise this fact, since this is in any case public knowledge.
3. If you were not named, you should apply to the Comptroller to be named.
4. Presumably you were paid during your employment. It is an inevitable but sometimes unfortunate effect of capitalism that employers can pay for the skill and labour of others, and get more than the actual worth of what they paid. If this wasn't the case, capitalism would not work.
5. Just because there have been no published cases relating to the provisions of s40 doesn't mean that the provision has not had any effect. There are likely to have been many settlements dependent on the wording of the Act that never reached the publicity and expense of court proceedings.
6. If you are so aggrieved, why not pursue your case before the Comptroller? The costs are minimal compared with the Courts.
Dear Woodpecker,
Point 1:
This must be a form of language I’ve yet to come across. Usually, when someone has a “right” to something it means a legal entitlement unconnected with the amount of money you have. Usually, in a “fair” and “socially just” society, it doesn’t involve vast amounts of cash.
There is no “right” to be a named inventor in the UK. It is not part of our constitution. Indeed, we don’t even HAVE a written constitution. All we have is paid-for privileges.
If one does manage to outfox the liars, greed freaks and psychopaths and end up a named inventor, you also end up liable to be sued by said psychopaths for every penny you ever had (and even what you don’t, and never will, have).
Being a named inventor in the UK is poison chalice. It is less risky being a rapist, murderer or a common crook – all of these crimes carry a lower sentence.
Point 2:
Your statement is meaningless. There is no obligation for an employer to file a patent. An employer can refuse to apply for a patent and gag the inventor. These oppressive restrictions can go on (and has done) for years. This is fascism. What else can it be described as?
If you actually read section 13, you will see that inventors do have a right to be named. This does not give you any right to proprietorship of course. Rights to the invention are usually governed by an employment contract, as are rights over confidential information.
It sounds like there isn't even a patent filed, let alone in your name, in which case any arguments about any right to a patent are irrelevant. If that is the case, this is about confidential information. Your ex-employer has every right to stop you from publicising this information, and can sue you for breach of confidence if you do. After all, the information presumably arose while you being paid for developing whatever it is you are referring to.
If you think that having a constitutional right to your invention is better, then take a closer look at the USA. Hardly any inventor employed in the USA actually has this right in fact, since ALL rights are typically signed away in an employment contract. The assignment to the employer is typically merely a formal requirement, and employees do not have a choice whether to sign if they want to keep their job. Employed inventors' rights are even more restricted in the USA than in the UK.
You are right in that the employer does not have to file a patent. There may be some circumstances in which they will be deemed to have abandoned the invention, so you would be free to file an application, but in general they have a right to keep it secret (and of course risk someone else filing for a patent independently).
I don't see how the 'gag' you mention is oppressive at all. Why should any ex-employee be free to disclose the secrets of their ex-employer?
Dear Woodpecker,
Point 3:
There is no procedure to “apply” for anything. To suggest otherwise is misleading. The only “procedure” is to request a hearing using form 2/77. This then institutes a “court” hearing. Of course, as with all private proceedings, this costs money and risks incurring penalties in the form of payment awarded to the “other” side.
And this you think is a “right”?
Sure, some right. The right to be bankrupted by a fat-cat corporation.
Point 4:
If you want to philosophise about capitalism and how it works, can I suggest you read some of the writings of Adam Smith.
Here you go:
Adam Smith the Critic of Exploitation
Can you please show me what he calls for inventions to stolen from inventors.
Thanks.
Hi DT
Think Im going to have to go with
woodpecker on this one. Just because no employee won a case on the basis that their contribution was an 'outstanding benefit' to a company doesn't mean that they havent obtained compensation by reaching a settlement (before either party has to spend huge amounts of money in court). To my mind the lack of cases in this area seems to back this up to some extent.
So has a patent application actually been filed and published? I got the impression there had without your knowledge, with you named as inventor.
If so there may be something you can do, although there are some subtleties in the compensation parts of the act, depending primarily on the status of the employee:
Under s40(1) if the employee invents something, where inventing is part of his normal duties (e.g. he is a researcher) or he has a special responsibility/obligation to the employer (e.g. he is a director) then it follows that the employer is paying the employee to invent and this is adequate compensation unless the invention is of outstanding benefit to the company.
However, under s40(2), if the employee invents something which does not fall in his normal duties etc as above (e.g. he is a salesman), then it follows that he is not paid to invent and is therefore the first owner of the invention. As such, if the rights in the invention are assigned or licensed to the employer for inadequate benefit, it may be possible to claim compensation in respect of this inadequacy.
Incidentally, if you have a clause in your contract which says that any inventions you make automatically belong to your employer, this may be an invalid clause under s42 (although note you still owe the employer a duty of confidence).
To summarise:
If you were paid to invent then the employer probably owns the invention and you would have the tough test of proving that the patent was of outstanding benefit to the company to obtain compensation.
On the other hand, if you invented something outside your normal duties and you didnt have a fiduciary duty to the company, then this suggests you owned the invention. I think if your company was using it then they would be deemed a licensee by implication (woodpecker do you agree?), and if you had not received adequate benefit then you could make a claim for compensation accordingly.
BV
To respond to the previous two comments:
An application under s13 does not automatically go to the courts. It will be heard at the Patent Office (in Newport), probably before a senior examiner (a Hearing Officer, not a judge), who will come to a balanced decision on whether the applicant has a right to be named as an inventor.
This need not cost you anything other than the small fee for requesting the hearing (£50 for the form 2/77). An attorney does not need to be involved, and the Patent Office will help private applicants a lot more than they would a patent attorney (who is expected to know what he is doing) if something is missing.
As for costs: since the process is cheap there is very little chance of being stung for big fees from the other side, even if you lose. However, if you are convinced that you have a right to be mentioned, you should be able to gather enough evidence to persuade the Patent Office.
Regarding what balancedview said, I think it should probably be right that the ex-employee would have a licence, but I think this would be an equitable right enforceable under common law rather than anything that is in the Act itself. In any case, this goes a long way down the road past a mere addition (or replacement) of an inventor. We don't even know if there is a patent to be fought over at present.
One thing I missed:
I tend to take the more realistic Marxist view on how capitalism actually works, rather than some idealistic view on how people should behave. There is something fundamentally flawed in the (typically Friedman-type) view that philanthropism automatically comes from wealth. Id Est: It doesn't.
Dear Woodpecker,
Point 5:
I don’t accept this view. To say that a provision is working based on: no one managing to use it, no cases succeeding, and just hearsay evidence that someone “might” have benefited from it is hardly evidenced-based policy, eh?
Would we say our theft laws were adequate if no crook was ever convicted of a crime?
Pont 6:
The costs in a patent hearing are not set in stone. The amount of costs awarded to either side is a decision made by the judge. The judge can (and does) award substantial costs. We don’t (unless you are rich) have access to justice in the UK.
Dear Woodpecker,
If you actually read section 13, you will see that inventors do have a right to be named. This does not give you any right to proprietorship of course. Rights to the invention are usually governed by an employment contract, as are rights over confidential information.
As I keep saying, a “right” is something you are entitled to REGARDLESS of how much money you have. To pursue this so-called right you have to PAY.
In the USA it is a federal LAW that ONLY the inventor can apply for and be named on a patent. In the UK it is perfectly legal for an employer to apply for a patent without the inventor’s knowledge, without the inventor’s permission and without even checking with the inventor(s) that they even agree on who created the invention!
Add to this that fact that an employer has no obligation to patent an invention and the whole issue of the rights of an inventor become laughable. Inventors in the UK have no rights whatsoever. None at all.
Rights to an invention are NOT usually governed by a contract of employment. Employees do not even have the right to be given a contract of employment. In practical terms, the rights (or lack of them) are governed by the patent act. Every employer in the UK thinks that they have an automatic rights to everything an employee ever does. It is as simple as this.
It sounds like there isn't even a patent filed, let alone in your name, in which case any arguments about any right to a patent are irrelevant. If that is the case, this is about confidential information. Your ex-employer has every right to stop you from publicising this information, and can sue you for breach of confidence if you do. After all, the information presumably arose while you being paid for developing whatever it is you are referring to.
Errr…didn’t you just say that rights to an invention are governed by a contract of employment??? Why, then, are you now telling me my employer has “every right” to stop me from publicising my invention and knowledge? If rights to inventions and confidential information are governed by a contract of employment (as you stated above), then your claim that my employer has “every right” to stop me is incorrect.
You can’t have it both ways.
If you think that having a constitutional right to your invention is better, then take a closer look at the USA. Hardly any inventor employed in the USA actually has this right in fact, since ALL rights are typically signed away in an employment contract. The assignment to the employer is typically merely a formal requirement, and employees do not have a choice whether to sign if they want to keep their job. Employed inventors' rights are even more restricted in the USA than in the UK.
In the USA it is federal LAW that ONLY the inventor can apply for and be named on a patent. Apparently, this is how it was in the UK before the 1977 Patent Act. Judging from the inventive performance of the USA compared to the UK, we have got it wrong and they have got it right.
You are right in that the employer does not have to file a patent. There may be some circumstances in which they will be deemed to have abandoned the invention, so you would be free to file an application, but in general they have a right to keep it secret (and of course risk someone else filing for a patent independently).
Again, if the rights are governed by a contact of employment, then you cannot say “in general”. You can only say that your contract of employment determines the issue. In Germany they have “use it of lose it” laws. This enables employees to benefit from their own work and prevents employers behaving like fascist psychopaths and thieves.
I don't see how the 'gag' you mention is oppressive at all. Why should any ex-employee be free to disclose the secrets of their ex-employer?
Did I say an employee should be free to disclose secrets? An employee should not face a lifetime gag simply because he has the ability to innovate and create new ideas. If an employee leaves a company, and the employer does not exploit an invention (or patent it) then the ex-employee should be able to use his knowledge and expertise for his own benefit. To gag an inventor for life is an appalling abuse of human rights.
Hi BalancedView,
Think Im going to have to go with
woodpecker on this one. Just because no employee won a case on the basis that their contribution was an 'outstanding benefit' to a company doesn't mean that they havent obtained compensation by reaching a settlement (before either party has to spend huge amounts of money in court). To my mind the lack of cases in this area seems to back this up to some extent.
Section 40 doesn’t work and has been a complete failure. This is why they changed it in the 2004 act. Why did they change it if there was nothing wrong with it?
So has a patent application actually been filed and published? I got the impression there had without your knowledge, with you named as inventor.
They filed a patent for something I DIDN’T invent (with my name on it and without my knowledge or consent), and haven’t filed a patent for something I DID invent.
Screwy, eh?
Under s40(1) if the employee invents something, where inventing is part of his normal duties (e.g. he is a researcher) or he has a special resionsibility/obligation to the employer (e.g. he is a director) then it follows that the employer is paying the employee to invent and this is adequate compensation unless the invention is of outstanding benefit to the company.
What if, as part of contractual terms and conditions, the employee has rights to the invention if the employer does not patent it? What if the employee has rights to publish their own research and the employer will not acknowledge this? Does the employee just go ahead and patent the invention and publish the research?
Or, as seems to be the case, will the employer just sue the ex-employee because there is no justice in the UK and whoever has the most money can do what they what?
Dear Woodpecker,
An application under s13 does not automatically go to the courts. It will be heard at the Patent Office (in Newport), probably before a senior examiner (a Hearing Officer, not a judge), who will come to a balanced decision on whether the applicant has a right to be named as an inventor.
Whether you call it a court hearing with a judge or a hearing with Patent Officer is irrelevant. There ain’t much difference.
This need not cost you anything other than the small fee for requesting the hearing (£50 for the form 2/77). An attorney does not need to be involved, and the Patent Office will help private applicants a lot more than they would a patent attorney (who is expected to know what he is doing) if something is missing.
I’ve no complaints about Patent Office hearings – from what I’ve read, the system seems honest and transparent. The only problem is being “fined” a huge amount of money by being hit with the costs of the “other side”.
As for costs: since the process is cheap there is very little chance of being stung for big fees from the other side, even if you lose. However, if you are convinced that you have a right to be mentioned, you should be able to gather enough evidence to persuade the Patent Office.
The right to be “mentioned” is not worth the bother. Even if you won a case you would never be able to benefit from it, and you would be blacklisted by your employer and risk never being employed again – some deal, eh?
Regarding what balancedview said, I think it should probably be right that the ex-employee would have a licence, but I think this would be an equitable right enforceable under common law rather than anything that is in the Act itself. In any case, this goes a long way down the road past a mere addition (or replacement) of an inventor. We don't even know if there is a patent to be fought over at present.
Oh there is a patent to be fought over. Following 4 years of being lied to by my ex-employer I filed one myself.
Aha! So there IS a patent application. It wouldn't surprise me at all if your ex-employer started proceedings to either have the rights assigned to them or sued you for breach of confidentiality. Without more details on the application itself, I don't see much point in arguing over who 'owns' what, particularly as you seem to be getting very confused about what rights you may or may not have in your rants about the downright unfairness of it all.
Hi DT
5. If there was no crime then yes such laws would be adequate. But this rationale is difficult to apply to the present situation.
The recent change improved the law slightly my changing the cause of outstanding benefit to 'inventor or patent' rather than just 'patent'. But note the requirement is still the tough test of 'outstanding benefit'. If the test was lower the floodgates would open as society moved another step closer towards a loathsome compensation culture.
6. I was under the impression there was a huge difference in costs between a Patent Office hearing and a Court case. The Patent Office uses scale costs, so I believe costs at a Patent Office hearing would be no more than a few thousand pounds - compared to a Court case which can run into many hundreds of thousands of pounds.
7. Ok so your employer has filed a patent application incorrectly in your name, which presumably you are not too bothered about as it's not your invention, but didn't file a patent application for your invention of a new method of some sort, so you filed this yourself.
Is the employer now saying you breached confidence by filing the application, or are they claiming ownership of the application?
BV
Woodpecker,
There is no confusion about what rights I have. I have a contract of employment clearly stating my rights. What you seem to be confused about is the activities of every swivel-eyed snivelling greed-freak to steal innovations from inventors. This, unfortunately, they are able to do due to bad laws and the support of the Lords of property their paid liars and bumsuckers.
Hope this helps.
Hi Balancedview,
5. The legislation is not working. This is a simple fact.
The only thing “loathsome” is the massive and systematic theft of inventions from inventors, and the “appalling” decline of innovation in the UK that this has caused.
What is also “loathsome” is propaganda aimed at keeping the “lower orders” in their place. The myth about a “compensation culture" is a prime example.
6. The hearing officer in a Patent Hearing does not have to adhere to the scale. Anyway, even if the costs are lower, isn’t this just like saying you can be a “little bit” dead?
7. It is hard to know what my (ex) employer is claiming. With every jig and dance the tune changes. It now appears my contract of employment is subservient to a fluffy cloud drifting in the wind.
Let's go for some simple questions then:
1. What does your employment contract actually say about ownership of inventions?
2. Were you 'paid to invent', i.e. would an invention reasonably be expected to result from your work?
3. What exactly has your ex-employer accused you of? Have they taken any real action? Bear in mind that they have only 2 years from the date of grant to take any action on entitlement. After that, it's all yours.
4. Have you taken any legal advice? It sounds like you should.
Descending to the level of meaningless insults doesn't really help. Either you have a problem that you would like to get sorted, or you simply have a gripe and are enjoying going on about it. If the latter, it doesn't matter what anyone says. Either way, other people do not in reality care (I for one am merely interested). It is your problem, and you have to deal with it.
Woodpecker,
1. It states that: “the inventor shall have the right to publish on his/her invention or seek any patent protection not already applied for by xxxx on his/her own behalf, and in any case shall have the right to do so if an application for legal protection has not been made within six months from the time when the xxxxx has been provided with all the information required”.
It has now been over three years since I supplied xxxxx with the information. No “protection” has been applied for.
It is mine – simple as this.
2. I was paid a poverty wage (on a fixed term contract) with the agreement that I would benefit If I made a discovery. I made a discovery. I have not benefited from it.
3. My ex-employer has not accused me of anything. They would prefer it is I were to die (quietly, of course). They claim that I did not invent anything.
4. Yes.
After four years of going through this bullshit, and having found out the scummy truth about our so-called democratic meritocracy, I would caution against calling me “confused”.
No, really, don’t do it.
Your answers seem to pretty much clear up all the outstanding issues. You appear to be entitled to your invention (whatever it is), as your contract seems to be fairer than most. If your patent application is granted, that would appear to knock on the head any argument of whether there was an invention at all (which your ex-employer seems to be arguing).
I fail to see what the problem is, but maybe I have missed something. What exactly is "this bull****" you are referring to? Is it perhaps the process (and cost) of actually obtaining a patent?
You are correct, the issue of whether I own the rights to the invention is VERY clear. This is why I agreed to work under the contract and use my talents to solve a global problem.
Unfortunately, the law and operation of the law in not very clear. It is neither clear, fair or socially just. It is designed to prevent the talented from usurping the talentless.
It has been designed to prevent the dirty underclass from outshining the glorious elite.
Various studies and articles support this fact.
Eg:
The myth of meritocracy: an inquiry into the social origins of Britain’s business leaders since 1850
“The central finding is that the minority, revisionist view of a movement towards meritocracy is overly optimistic. Becoming a business leader in Britain is still largely determined by the interconnected characteristics of a wealthy family and a prestige education. Relative mobility ratios show that the business elite has become increasingly homogenous, contrary to what might be expected from a century and a half of social, economic, and structural change.”
The Guardian
"But a situation in which talent finds no way forward while an elite of populist mediocrities holds power in field after field will, in the long term, prove damaging to the country.
Recently, the London School of Economics produced an international study showing that Britain is not only the least meritocratic country in the western world, but that in the past 30 years we have actually gone backwards."
Credit Constraints, Competition, and Meritocracy
"If the inter-generational transmission of talent is imperfect, family firms are a threat to the efficient allocation of talent. Markets for the control of productive assets supported by anemic contract enforcement may have a hard time in re-allocating control to the most competent managers. This failure of meritocracy may impose severe inefficiencies on the economy at large, particularly when the technological environment in which a firm operates is subject to frequent change."
Oh I LOVE this bit - Markets for the control of productive assets supported by anemic contract enforcement may have a hard time in re-allocating control to the most competent managers.
See?
Good.
Blah, blah blagh, red tape, feathered words,
not an employee, no contract of employment, came up with my own new invention, made mistake of allowing investor in, investor goes behind back, signs as applicant, red tape blah blah blah,
No ! Invent it, make it, sell it,
Invent it make it sell it, invent it make it , sell it, no red tape no employment contract no worries.
yes but it is RED, no , no, you mean a shade of rouge, NO I mEAN RED !
Yeah so be direct be blunt leave no room for misinterpretation.
Post a Comment
<< Home