A New Look at Employer-Employee Relationships Through the Lens of the Patents and Creations of Employees

Labour Society and Law (Israel), 2010

Posted: 20 Aug 2012

See all articles by Shlomit Yanisky-Ravid

Shlomit Yanisky-Ravid

Yale Law School; ONO Academic College; Yale University - Information Society Project; Fordham University, School of Law

Date Written: 2010


The article focuses on Employer-Employee Relationships through the Lens of the Patents and Creations ‘of’ Employees. The article begins by discuss the interface between labor law and intellectual property law (IP). The arrangement under discussion serves as a unique melting pot that combines IP law and labor law. In most legal systems, the threshold for implementing the entire arrangement is that the creator-inventor is employed, according to the accepted tests prevalent in labor law. The article clims that there is a significant gap between analysis of the issue from the perspective of IP and its analysis using tools of labor law. Anglo-American law is likely to operate primarily from the perspective of IP law. It is our claim that intellectual property law has not internalized the purposes on which labor laws based. Furthermore, the tests used are not necessarily appropriate for the question of allocating rights according to the norm being considered. The tests are ordinarily used to grant rights to employees while their use in the current case leads to the opposite. Furthermore, use of these tests does not internalize new trends in the field of labor law. In these terms, the discourse in the field of IP product rights has overlooked the “dynamic” discourse that exists in the field of labor law. In addition, these tests have an inherent difficulty identifying who is an employer and who is an employee. Therefore, the conclusions that emerge from their implementation are not necessarily suitable for use as the foundation for determining rights in an IP product. Adherence to the test of personal supervision or even to the test of integration as the determinative test will not inevitably advance the question of the appropriate assignment of IP rights. For certain categories of employees and employers, using the accepted norms to test the allocation of rights can lead to absurd results. Thus, if the workers are employed through manpower companies or third parties. using the explicit tests of Anglo-American law would be likely to assign them the rights for products developed by the employees. There is also the case of an IP product developed by an employee working for several unrelated employers where it is likely that each employer would be granted a proportional share in ownership of the product and the key employee-creator would be left without any rights. Testing various categories of “employees” might also lead to problematic results. One such example would be the question of a volunteer’s entitlement to rights in the product of his work.

Keywords: Service Invention, Patents, Employment

Suggested Citation

Yanisky-Ravid, Shlomit, A New Look at Employer-Employee Relationships Through the Lens of the Patents and Creations of Employees (2010). Labour Society and Law (Israel), 2010, Available at SSRN: https://ssrn.com/abstract=2132695

Shlomit Yanisky-Ravid (Contact Author)

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

ONO Academic College ( email )

Tzahal Street 104
Kiryat Ono, 55000

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Fordham University, School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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