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Old 13.09.2021, 15:34
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Patents: Does my company own every idea I come up with?

Hey folks


I work as an engineer for the same company for 8 years and i've had troubles with a sucessful patent of me, because at the moment of the filling, I had to sign a document resigning on future claims. My boss said, that here in Switzerland patents belong always to the company (and not to the inventor like in Germany and other countries). Is this true?



That brought me into a strong burn out, but after some months, I decided to work at home in the evenings and that came out that I've had much better ideas suitable for patent, really crazy ones....... and now the question is: How could I patent these new ideas by myself that the company never heard of, never imagined of? I suppose, that I cannot patent anything on my own while being hired, because these patents are relevant to the company.



But, could I do it by myself just after leaving the company? I have a clause in my contract that says, that I am not allowed to work at any competitor company after leaving during the next 5 years (whole CH), what makes it really difficult for me, if I leave.


Could you give me a piece of advice of how I could do this?
Leaving the company > waiting for 5 years > patent?

Leaving the company > waiting for 6 months > patent?
Leaving the company > patent?

Leaving the company > leave CH > patent?









Thanks in advance
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Old 13.09.2021, 15:48
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Re: Patents: Does my company own every idea I come up with?

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Hey folks


I work as an engineer for the same company for 8 years and i've had troubles with a sucessful patent of me, because at the moment of the filling, I had to sign a document resigning on future claims. My boss said, that here in Switzerland patents belong always to the company (and not to the inventor like in Germany and other countries). Is this true?



That brought me into a strong burn out, but after some months, I decided to work at home in the evenings and that came out that I've had much better ideas suitable for patent, really crazy ones....... and now the question is: How could I patent these new ideas by myself that the company never heard of, never imagined of? I suppose, that I cannot patent anything on my own while being hired, because these patents are relevant to the company.



But, could I do it by myself just after leaving the company? I have a clause in my contract that says, that I am not allowed to work at any competitor company after leaving during the next 5 years (whole CH), what makes it really difficult for me, if I leave.


Could you give me a piece of advice of how I could do this?
Leaving the company > waiting for 5 years > patent?

Leaving the company > waiting for 6 months > patent?
Leaving the company > patent?

Leaving the company > leave CH > patent?





Thanks in advance
I remember having a clause in my contract stating this, what is written in your contract?
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Old 13.09.2021, 15:48
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Re: Patents: Does my company own every idea I come up with?

In my company there is a clause in the employment contract, or a clause directing to the company's general conditions of employment, in which there is a clause that says any intellectual property created on company time or with company equipment (including computer) belong to the company, even if you created that IP on your own initiative outside of working hours and not on your boss' instructions.

So technically, if you were to take your company laptop home with you and write a best-selling novel, then the company would have a claim on the royalties as you used their computer.

I don't know if other companies have something comparable.
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Old 13.09.2021, 15:58
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Re: Patents: Does my company own every idea I come up with?

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Hey folks


I work as an engineer for the same company for 8 years and i've had troubles with a sucessful patent of me, because at the moment of the filling, I had to sign a document resigning on future claims. My boss said, that here in Switzerland patents belong always to the company (and not to the inventor like in Germany and other countries). Is this true?
What does your contract say? It is not uncommon for a company to claim that any idea you come up with belongs to them. Where the idea is not directly or indirectly related to your work and/or it's not something the company would exploit as part of their business, then it can be overruled by a court.

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I have a clause in my contract that says, that I am not allowed to work at any competitor company after leaving during the next 5 years (whole CH), what makes it really difficult for me, if I leave.
A friend of mine had a similarly restrictive contract clause.

According to legal advice received, these clauses are not enforceable if either of these apply:
  • It severely restricts you working in Switzerland completely in your area of expertise
  • The time period goes beyond what is reasonable to protect the companies' private information.

The difficulty is that it would need to go to mediation or court for a final decision to be reached.
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Old 13.09.2021, 16:09
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Re: Patents: Does my company own every idea I come up with?

Sometimes customers ask to have the intellectual property of the resulting work. I guess there's a way to do something by selling IP to a "customer".

But, read your contract first.
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Old 13.09.2021, 16:23
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Re: Patents: Does my company own every idea I come up with?

Quit & work for yourself !


2 or 3 months afte rleaving, set your own company up and put the patents through this company.,


View it is new, it cannot be considered a competitor and there is nothing that stops you working in your chosen field, competiton clause or not !
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Old 13.09.2021, 16:35
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Re: Patents: Does my company own every idea I come up with?

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Quit & work for yourself !


2 or 3 months afte rleaving, set your own company up and put the patents through this company.,


View it is new, it cannot be considered a competitor and there is nothing that stops you working in your chosen field, competiton clause or not !

Bad advice.


Employment contracts are routinely litigated, during and after employment. He has signed a contract, which he acknowledges contains clauses pertaining to the future. Whether the clauses are reasonable or not, it'd have been better to argue for their removal before he signed the contract (even if they can be litigated to stop their enforcement, the best time to argue them was when he reviewed the drafted contract). I've managed to have them removed from every case I've handled through volunteering, when the contract was still a draft.

--------------------------

OP with such serious matters, it's best to seek legal advice. Noone here has seen your contract, nor knows the nature of your employment, nor knows your employer, to be able to guide you. This is not a straightforward issue, and it'd be a mistake to have (well-intentioned) posters on the internet guide you in place of a solicitor with this.


When we argue that such clauses are unreasonable in cases we see in volunteering (where someone signed a contract with the clauses in it), we make a very specific case, based on the person's work, skills, contract, company they were working for, we reference other pertinent legal cases, etc etc.
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Old 13.09.2021, 16:41
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Re: Patents: Does my company own every idea I come up with?

I can't answer in full, but I do know 5 year exclusion contracts are unenforceable as you cannot be deprived of your living. Normal, especially, but not limited to the financial world, are between 3 - 6 months. Normally referred to as "gardening leave". However, in this period the company must pay you your salary, either month by month or as a lump sum.
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Old 13.09.2021, 16:45
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Re: Patents: Does my company own every idea I come up with?

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I can't answer in full, but I do know 5 year exclusion contracts are unenforceable as you cannot be deprived of your living. Normal, especially, but not limited to the financial world, are between 3 - 6 months. Normally referred to as "gardening leave". However, in this period the company must pay you your salary, either month by month or as a lump sum.

This is false. It's possible to hold someone to a 5-year compete clause (or longer). It all depends upon the nature of their work, the employer, their skills, the contract they signed, whether it's litigated either now or in future, etc etc.


A legally-sound compete clause doesn't stop someone from earning a living. It can restrict who, where, what and how they can do that, but it can't stop them from earning a living.


Garden leave is nothing to do with compete clauses. It's completely separate.

Last edited by CliiniMuus; 13.09.2021 at 16:56.
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Old 13.09.2021, 16:50
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Re: Patents: Does my company own every idea I come up with?

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Sometimes customers ask to have the intellectual property of the resulting work. I guess there's a way to do something by selling IP to a "customer".

But, read your contract first.
This is quite common actually.

Especially lots of startups and small engineering companies like to develop stuff but don't have much interest in scaling it up and doing the marketing. Or maybe consider that production in Switzerland is just too costly. So they basically develop stuff to the point that you can start production and then sell all the IP to somebody who will do that abroad.
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Old 13.09.2021, 17:03
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Re: Patents: Does my company own every idea I come up with?

If I understand it correctly, if you develop/patent something out of working hours with your own personal equipment, then there are no issues?

Or am I missing the elephant here?
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Old 13.09.2021, 17:09
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Re: Patents: Does my company own every idea I come up with?

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If I understand it correctly, if you develop/patent something out of working hours with your own personal equipment, then there are no issues?

Or am I missing the elephant here?

Yes. There's no such clear deliniation. It's fact-specific.



The signed contract plays a role, and what the person is, or was, paid to do for their employment does, too, alongside any arguable relation to what they develop.



It's also nigh on impossible to say with a straight face within the hours of x and y, I thought about z/was inspired by z, but never between the hours of a and b.
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Old 13.09.2021, 17:18
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Re: Patents: Does my company own every idea I come up with?

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This is false. It's possible to hold someone to a 5-year compete clause (or longer). It all depends upon the nature of their work, the employer, their skills, the contract they signed, whether it's litigated either now or in future, etc etc.


A legally-sound compete clause doesn't stop someone from earning a living. It can restrict who, where, what and how they can do that, but it can't stop them from earning a living.


Garden leave is nothing to do with compete clauses. It's completely separate.

I'm sure you know best
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Old 13.09.2021, 17:29
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Re: Patents: Does my company own every idea I come up with?

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This is false. It's possible to hold someone to a 5-year compete clause (or longer). It all depends upon the nature of their work, the employer, their skills, the contract they signed, whether it's litigated either now or in future, etc etc.


A legally-sound compete clause doesn't stop someone from earning a living. It can restrict who, where, what and how they can do that, but it can't stop them from earning a living.


Garden leave is nothing to do with compete clauses. It's completely separate.
No, I don’t agree. A 5 year clause across the entire nation dictating you cannot work for a competing company, ie the same field, would be thrown out by employment law judges as being unreasonably restrictive. Earning your living is defined as working in your trade in these clauses and in all but the most utterly extreme circumstances 5 years would be deemed totally unreasonable. The line of ‘well you’ve signed it’ doesn’t really matter - if it’s unreasonable it’s unreasonable and therefore unenforceable.
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Old 13.09.2021, 17:31
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Re: Patents: Does my company own every idea I come up with?

I haven't posted anything akin to what you've claimed. Not sure why you'd try to attribute any of your post to mine. I don't suppose you've read mine.
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Old 13.09.2021, 17:35
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Re: Patents: Does my company own every idea I come up with?

Most non compete clauses are not enforceable and in any case, companyist always compensate, cannot just say "we don't want you to work for someone else so just stay home". Companies rely on people not knowing their stuff and just put standard clauses in, from senior staff to super junior etc.

In any case better check your contract and ask your legal insurance for avoidance of doubt and future issues.
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Old 13.09.2021, 17:36
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Re: Patents: Does my company own every idea I come up with?

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If I understand it correctly, if you develop/patent something out of working hours with your own personal equipment, then there are no issues?

Or am I missing the elephant here?
If you develop a product that is in direct competition with something your company makes, this may indeed by forbidden.

An ex colleague of mine was fired for doing this. He claimed he was unable to do all the work by himself and suggested we hire a small consultancy company to do all the work he was unable to do himself.

The consultancy was registered in the name of a mate of his, but actually it was him doing the work and getting the money. So basically he had set up a system whereby the less work he did in the office, the more money he could make on the side. Or in fact he could sit in the office doing work that he could then get payed for twice.

It all flew up when one day he mistakenly sent an email from the wrong address.
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Old 13.09.2021, 17:39
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Re: Patents: Does my company own every idea I come up with?

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No, I don’t agree. A 5 year clause across the entire nation dictating you cannot work for a competing company, ie the same field, would be thrown out by employment law judges as being unreasonably restrictive. Earning your living is defined as working in your trade in these clauses and in all but the most utterly extreme circumstances 5 years would be deemed totally unreasonable. The line of ‘well you’ve signed it’ doesn’t really matter - if it’s unreasonable it’s unreasonable and therefore unenforceable.
Give it up. This one can't be argued with.
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Old 13.09.2021, 17:40
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Re: Patents: Does my company own every idea I come up with?

Depends on

- your contract
- when it was done (out of work hours while not working on a company project)
- how related to you work it is

All or only one of these could play a factor. So it may well be that the company does or does not have a claim. You'd need to read the contract very carefully. You may also consult a specialised attorney but that is likely to be 1000+fr bill.

Many people agree on such things with a company before signing the contact (if they have strong enough negotiation power for whatever reason). It is also possible to take an approval from your superior afterwards but is dependent on approval from the legal team.
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Old 13.09.2021, 19:46
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Re: Patents: Does my company own every idea I come up with?

That is an interesting story but irrelevant to OP
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If you develop a product that is in direct competition with something your company makes, this may indeed by forbidden.

An ex colleague of mine was fired for doing this. He claimed he was unable to do all the work by himself and suggested we hire a small consultancy company to do all the work he was unable to do himself.

The consultancy was registered in the name of a mate of his, but actually it was him doing the work and getting the money. So basically he had set up a system whereby the less work he did in the office, the more money he could make on the side. Or in fact he could sit in the office doing work that he could then get payed for twice.

It all flew up when one day he mistakenly sent an email from the wrong address.

Depends on the contract, but only to a certain extent. The Swiss code of obligations defines ownership of inventions.

If you are hired to be creative, invent, then everything you create in your field of work belongs to your employer - even outside business hours and even if not specifically tasked with that.

If you inventions is sufficiently different from your duties, then you might be able to claim otherwise, but from what I read in your post, this does not appear to be the case.
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