Hired to Invent vs. Work Made For Hire: Resolving the Inconsistency Among Rights of Corporate Personhood, Authorship, and Inventorship

Abstract

Corporations have long held core aspects of legal personhood such as rights to own and divest property, and to sue and be sued. U.S. copyright law allows corporations to be authors while U.S. patent does not allow them to be inventors. To be sure, both copyright and patent law allow corporations to own copyrights and patents as assignees. But only copyright law, through its work made for hire doctrine, provides for the non-natural person of the corporation to “be” the author in an almost metaphysical sense. Under patent law, the natural person inventors must always be listed in the patent documents, even if they pre-assigned the title to inventions they develop. This symposium essay traces the roots of this discrepancy and outlines the important practical issues it presents in the balance between the rights of natural persons to obtain value from their creative works and the needs of non-natural corporate legal persons to be able to direct and control the “means of innovation” in which they invest heavily in time and resources to coordinate the development, production, and distribution of intellectual property based goods and services. This essay argues that we should resolve the current discrepancy by unifying both systems around a strengthened hired to invent rule. This would allow the natural person creators to retain attribution rights, which are core to their professional development and reputation, while allowing corporations to have security in their ability to control the use of creative works they hired natural persons to develop.

Keywords: corporate personhood, intellectual property, patent law, copyright law, work made for hire, hired to invent, shop rights, employed inventors, independent contractors