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You built it at work. Who owns it, and can they make you build your replacement?

Copyright, patent, and state invention laws on who owns what you build at work, plus at-will employment, WARN notice, labor rights, and the EU AI Act.

Publisher: patentagents.ai

Short answer

Code you write within the scope of your job is a work made for hire your employer owns unless you both signed a writing saying otherwise, while patent law starts from the premise that rights in an invention belong to the inventor. In California, a job with no specified term may be ended at the will of either side on notice. Limits come from state invention laws, federal layoff notice rules, and the right to act together with coworkers.

Who owns the code you write for your employer?

Under 17 U.S.C. § 101, a "work made for hire" includes "a work prepared by an employee within the scope of his or her employment."

For such a work, subsection (b) of 17 U.S.C. § 201 (Ownership of copyright) treats the employer as the author and says that, unless the parties "have expressly agreed otherwise in a written instrument signed by them," it "owns all of the rights comprised in the copyright."

Who owns an invention you make at work?

In 563 U.S. 776, 780 (2011), the Supreme Court wrote that "rights in an invention belong to the inventor." 563 U.S. 776, 786, adds that "unless there is an agreement to the contrary," an employer does not have rights in an invention that is "the original conception of the employee alone."

In 289 U.S. 178, 187 (1933), the Court said that "[o]ne employed to make an invention, who succeeds, ... is bound to assign to his employer any patent obtained."

If you were not hired to invent but used employer time and materials, 289 U.S. 178, 188–89, gives the employer "a non-exclusive right to practice the invention," a shop right, but "no equity to demand a conveyance of the invention."

Being told to build a tool does not by itself make you hired to invent: 289 U.S. 178, 188, says "employment merely to design or to construct or to devise methods of manufacture is not the same as employment to invent."

Do state laws protect inventions you make on your own time?

Cal. Lab. Code § 2870(a) keeps an assignment clause from reaching an invention "developed entirely on his or her own time without using the employer's equipment, supplies, facilities, or trade secret information."

Under Cal. Lab. Code § 2870(a)(1)–(2), it does not cover inventions that "[r]elate at the time of conception or reduction to practice" to the employer's business or "actual or demonstrably anticipated research or development," or that "[r]esult from any work performed by the employee for the employer."

If an employment agreement "entered into after January 1, 1980" requires the employee to assign, or offer to assign, invention rights, Cal. Lab. Code § 2872 (Inventions Made by an Employee) requires the employer to give written notice of that limit when the agreement is made.

Under Wash. Rev. Code § 49.44.140(1), such a clause does not reach an invention "developed entirely on the employee's own time" without the employer's "equipment, supplies, facilities, or trade secret information," "unless" it relates "directly to the business of the employer" or "to the employer's actual or demonstrably anticipated research or development," or "results from any work performed by the employee for the employer."

Under Minn. Stat. § 181.78, subd. 1, such a clause "shall not apply" to an invention "developed entirely on the employee's own time" without the employer's "equipment, supplies, facility or trade secret information," and "(1) which does not relate (a) directly to the business of the employer or (b) to the employer's actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by the employee for the employer."

Both also require written notice when the agreement is made: Wash. Rev. Code § 49.44.140(3), for an agreement "entered into after September 1, 1979" that requires the employee to assign invention rights, and Minn. Stat. § 181.78, subd. 3, for one "entered into after August 1, 1977" that requires the employee to assign or offer to assign them.

In our view, these laws limit assignment clauses but do not by themselves decide who owns a patent; that still starts with the inventor, 563 U.S. 776, 780, 786, subject to the hired-to-invent duty and shop right in 289 U.S. 178, 187–89.

Can your employer change your job to building your replacement?

Cal. Lab. Code § 2922 (Termination of Employment) provides that "[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other."

Does federal law require notice before a layoff?

Sometimes: the WARN Act covers an employer with "100 or more employees, excluding part-time employees," among others, under 29 U.S.C. § 2101(a)(1). Such an employer generally may not order a plant closing or mass layoff "until the end of a 60-day period after the employer serves written notice," under 29 U.S.C. § 2102(a). 29 U.S.C. § 2102(b) allows less notice in listed cases but requires "as much notice as is practicable."

A mass layoff under 29 U.S.C. § 2101(a)(3) "is not the result of a plant closing" and causes an "employment loss," as defined in 29 U.S.C. § 2101(a)(6), at one site within 30 days for at least 33 percent and at least 50 employees, or at least 500, "excluding any part-time employees," as defined in 29 U.S.C. § 2101(a)(8).

Under 29 U.S.C. § 2102(d), smaller losses at one site "within any 90-day period" that together exceed the minimum are treated as a plant closing or mass layoff, unless the employer shows "separate and distinct actions and causes" and no attempt to evade the law.

An employer that orders a closing or layoff in violation of 29 U.S.C. § 2102 is liable under 29 U.S.C. § 2104(a)(1) for back pay and benefits "up to a maximum of 60 days, but in no event for more than one-half the number of days the employee was employed."

Under 29 U.S.C. § 2104(a)(2)(A), that amount "shall be reduced by" wages paid "for the period of the violation." Under 29 U.S.C. § 2104(a)(4), a court may reduce it further if the employer proves both good faith and "reasonable grounds for believing" its act or omission "was not a violation" of the WARN Act.

Can you and your coworkers push back together?

NLRA § 7, 29 U.S.C. § 157, gives employees the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." But 29 U.S.C. § 152(3) excludes "any individual employed as a supervisor."

With a union, subsection (d) of 29 U.S.C. § 158 (Unfair labor practices) requires both sides to "confer in good faith with respect to wages, hours, and other terms and conditions of employment." In 452 U.S. 666, 686 (1981), the Court held that a decision to shut down part of a business purely for economic reasons is not itself a mandatory subject of bargaining.

452 U.S. 666, 681, said "the union must be given a significant opportunity to bargain about these matters of job security as part of the 'effects' bargaining mandated by § 8(a)(5)" of the NLRA. In 452 U.S. 666, 686 n.22, the Court took "no view as to other types of management decisions," naming "automation," which "are to be considered on their particular facts."

Does the EU AI Act change anything?

Annex III, point 4, of Regulation (EU) 2024/1689 lists as high-risk AI "intended to be used" for promotion or termination decisions or "to allocate tasks based on individual behaviour or personal traits or characteristics." Article 6(3) of Regulation (EU) 2024/1689 treats some of these systems as not high-risk, but never one that "performs profiling of natural persons."

Article 26(7) of Regulation (EU) 2024/1689 requires "deployers who are employers" to "inform workers' representatives and the affected workers" before putting into service or using a high-risk AI system at the workplace.

Under Regulation (EU) 2026/1744 (Digital Omnibus on AI), which amended the Act, Chapter III, Sections 1 to 3, "with the exception of Article 6(5)," apply from 2 December 2027 to AI systems "classified as high-risk pursuant to Article 6(2) and Annex III." Article 26 sits in Chapter III, Section 3 of Regulation (EU) 2024/1689.

What should you do before you start building?

Our suggestions: reread your invention-assignment agreement and look for the state-law notice. Ask in writing whether the new project is part of your job. This is general information, not legal advice.

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Sources

Tradeoffs and limits

  • In our view, asking for a narrower signed agreement can help, but asking can carry risk in a job either side may end on notice.

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