ABSTRACT
Employees in a wide range of fields, including engineering, science, and design, are required to sign intellectual property (IP) assignment agreements at the start of employment. These agreements assign IP generated by the employee to the employer. IP assignment agreements are often all-encompassing. The agreement may categorically claim all IP that the employee generates even if the employee creates the IP in the comfort of her own home outside the scope of employment. The agreement may also claim IP created by the employee after the termination of employment, which can restrict the employee’s ability to control the future of her career.
When employees have tried to rely on the unconscionability defense to escape an overly broad IP assignment clause, courts have generally determined that the defense does not apply because these clauses are not unconscionable – regardless of their restrictions on the employee’s ability to create inventions for herself. Legal commentators have also dismissed the unconscionability defense as unfit for the IP context. This Note aims to show that IP assignment clauses can be unconscionable when the clauses unreasonably restrict the employee. This Note also considers whether IP assignment clauses may be void for public policy in light of the strong desire to promote individual innovation underlying US IP law.
Elizabeth Knuppel, ‘A Mortgage on a Man’s Brain’: The Unconscionability of Overly Broad Intellectual Property Assignment Clauses in Employment Contracts (2022) 100(5) Texas Law Review 971.
First posted 2022-04-29 12:00:11
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