Document Type


Publication Date


Publication Citation

9 University of Pennsylvania Journal of Labor & Employment Law 207 (2006)


This comment studies the implications of open source on pre-invention assignment agreements. Part I analyzes the basis for past enforcement of these contracts, with an eye toward distinctions between open source projects and more traditional commercial endeavors. Part II briefly reviews the history of patents and explores constitutional and contract-based arguments against the pre-invention assignment. Part III begins with a discussion of open source and then explores how this new phenomenon perfectly fulfills the goals behind the Patent Act. With these addressed, the central inquiry of pre-invention assignment agreements, as they could conflict with open source inventions, will be addressed. Ultimately, this comment will show that some rules that preclude open source contributions from being recaptured by employers already exist. In those cases where the law remains ambiguous, it will be argued that such works are a service to the community, and when developed outside the scope of employment, should never become the property of an employer.