Employee intellectual property rights

 an employer's exclusive right in employee-created IP (including, inventions and improvements to existing products) largely depends on whether the employer and employee have entered into an agreement that fully and specifically provides that the employer owns IP created by an employee in the course of the employee's work duties. This agreement is often called an "assignment-of-inventions" agreement. Often, the assignment-of-inventions provision is contained in the general employment agreement the employee signs before he begins his employment.

 an "assignment-of-inventions" agreement includes employment agreements that specifically incorporate such a provision. In most cases, if an assignment-of-inventions agreement properly setting forth the employer's ownership rights in the employee's invention rights has been signed by the employee, the assignment-of-inventions agreement will control the parties' rights and the agreement will be enforceable 

You have posted that: .................."work done outside working hours......................Even though he/she used his/her own equipment and time in developing this product....................Lastly, are there possible precautions entrepreneurs can take while under employment that can strengthen their claim on the product they created on their own time?"...............

 

The agreement that is drafted by employer and signed with employee needs to carefully studies before signing and should preferabley be shown to an able counsel before it is signed.

 

This is the time to deliberate on such issues and communicate clearly what shall not be covered ...........e.g. as mentioned above.

 

Employee should take care that no written contarct should provide whlesome rights to employer.

 

Generically  speaking employee is at the discretion of employer during work hours (8 hours or including paid OT) and employer has no right or lien on time outside work hours and property of employee.

 

Then the law shall decide what is right of employer, and ........................employee.

Indian courts of law have consistently been declining to enforce Non Compete clauses/agreements as it hits upon right to earn livelihood  and Indian Contract Act................

 

First of all an employee is not supposed to work out side employer premises without permission. Secondly any thing created during normal work and in premises of employer are rights of employer only. However as suggested by expert above any specific agreement on this will be binding. Most great companies give a share of invention to inventing employee. No IP becomes an invention unless duly registered meaning patented or copyrighted. So you got to apply. That is normally done by employer only in most cases Many companies give entrepreneurial opportunity to employees within organisation and share the rewards. Most inventions need organised research and team work normally provided by employer resources. Unless employee dream inventions in his bedroom. Don't you agree?

PS: you can read research sharing arrangements of IIT Delhi and various national laboratories engaged in invention oriented research. You will get clear clue on existing practice.

read below link: It will give you excellent overview of how patent and research with employer is handled. https://ocr.yale.edu/faculty/policies/yale-university-patent-policy

Thanks for all your valuable opinions. Found a recent judgement by Bombay High court.......

https://www.linkedin.com/pulse/india-employer-owned-intellectual-property-douglas-morgan

Any opinions on this judgement?

In this case company has already ratified MD's right on patent. It is clear company must have see all aspects before doing this.IT is not clear he id invention in company or in any other establishment owned by him. what was exact nature of invention and if it was entirely different from line of business of company and research if any going on. Case was filed by minority share holder but majority has already cleared his right. If what you are trying to tell is ok then no employee will do research for employer working in that company like research institutions and transfer inventions in his own name. The concept given by high court is in line with what we wrote above and sent you link. But employers have to be vigilant to keep tabs on employee activities. specially in sensitive areas like electronics, IT, pharma, defence, nuclear

agreed with experts opinions stated above.

regarding this issue it need to verify the aggrement between employer- employees.

If there is restriction over the inventions and if you invent any things that will be the property of the employer. So it need to verify its batter to contact your nearest patent lawyer. He can guided you properly 

the concept and law is very clear. IPR first belongs to inventor(Patent laws) or community whereit is processed as traditional system. For example vanspati rice.So is case with copyright and trademarks acts.

But if invention was done in due course of employerproject using employer resources, it is owed by employer. But mostemployers make a sharing contract/policy on such inventiosn with main inventor or the team involved.

Now if invention is outside compnay and otherthan compnay line/projects, it is soleproperty of inventor. But you cant work in comnay use their ideas and resources and work outside also and invent same or similar things to employer line andprjects if in hand .That is cheating and misuse .

 

Moreoverto be able to get pateneted an invention should be disticntly diffeenmt from otherproducts/ideas/processes already patented and must exhibit disctinct advanrtage.

But if product itself is protected  say some chemcial or drug youc ant patent it even if you make new process. India early offered only proces spateent and that is hw pahrma compnaies used to cheat foreign drug patients by altering some partof rocess and getting it patented.

You can test your issue against abovepriniples and law.

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