Employee Inventions

California’s Labor Code, in Article 3.5 of Chapter 2 of Division 3, provides rules for inventions made by an employee. Article 3.5 was added in 1979 by Chapter 1001. Section 2870 provides that any provision in an employment agreement which provides that an employee is required to assign, or offer to assign, any of his or her rights in an invention to his or her employer do 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. There are two specified exceptions.

Section 2871 prohibits an employer from requiring a provision made void and unenforceable by this law as a condition of employment or continued employment. Nothing in this article is to 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.

Section 2872 specifies that an employment agreement that 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, then 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 this law.