# Employee Invention Assignment in California[^about] California Labor Code Sections 2870–2872 void any clause forcing an employee to assign an invention developed on their own time, unrelated to the employer's business and without its resources; the employer must give written notice; and overbroad post-employment trailing-assignment clauses are void under Section 16600. ## Can a California employer require assignment of every invention? {#statutory-carve-out} **Short answer.** No. California Labor Code section 2870 carves out a category of inventions that an assignment clause simply cannot reach: anything the employee developed entirely on their own time, without the employer's equipment, supplies, facilities, or trade-secret information, that neither relates to the employer's business or anticipated research and development nor results from the employee's work. To the extent a clause purports to capture those own-time inventions, it is against the public policy of the state and unenforceable [^stat-2870][^stat-2870-policy]. Section 2870(a) frames the carve-out as a limit on what an assignment promise can do. However broadly the contract is written, it does not reach an invention the employee made on their own time and with their own resources unless one of two statutory exceptions applies [^stat-2870]. "Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer."[^stat-2870] Subdivision (b) supplies the teeth: a provision that tries to require assignment of an invention the statute excludes is not merely unenforceable as written but declared against public policy [^stat-2870-policy]. "To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable."[^stat-2870-policy] The two exceptions are joined disjunctively, and the distinction matters. In *Cubic Corp. v. Marty*, the Court of Appeal construed the statute so that an invention is protected for the employee only when *both* conditions are absent — if it neither falls within the employer's business (actual or demonstrably anticipated) nor results from the employee's work. If *either* condition is present, the invention falls outside the carve-out and the employer may require its assignment [^cubic-disjunctive][^cubic-either]. "The Legislature used the disjunctive ‘or’—if either of the two conditions (scope of business or work otherwise performed by the employee for the employer) are not met, then section 2870 does cover the invention."[^cubic-disjunctive] "we construe the statutory language to cover both the situation where the invention comes within the scope of the employer’s business (actual or demonstrably anticipated) and the situation where the invention was not within the usual scope of the employer’s business but resulted from work the employee did for the employer. If either situation is present, then the employer has a right to the invention under an assignment agreement."[^cubic-either] Section 2871 closes the obvious workaround. An employer cannot demand the void assignment anyway by making the employee sign it to keep the job — a provision void under section 2870 may not be required as a condition of employment or continued employment [^stat-2871][^cubic-condition]. "No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment."[^stat-2871] "The Legislature has stated an agreement to assign an invention which falls within Labor Code section 2870 cannot be made a condition of employment or continued employment."[^cubic-condition] ## Must a California employer notify the employee? {#employee-notice} **Short answer.** Yes. Section 2872 requires an employer whose agreement contains an invention-assignment provision to give the employee, at the time the agreement is made, a written notification that the agreement does not apply to an invention that qualifies fully under section 2870. The same section places the burden of proof on the employee who later claims the carve-out's protection [^stat-2872][^stat-2872-burden]. The notice obligation is contemporaneous, not eventual: the written notification must accompany the agreement when it is made, for any agreement entered into after January 1, 1980. It does not change which inventions are carved out — section 2870 does that — but it ensures the employee is told the carve-out exists [^stat-2872]. "If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870."[^stat-2872] The allocation of proof cuts the other way. When a dispute arises, the employee who wants the benefit of the own-time carve-out must establish that the invention qualifies — the statute puts that burden on the employee, not the employer [^stat-2872-burden]. "In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions."[^stat-2872-burden] ## Who owns an invention by default in California? {#default-ownership} **Short answer.** The inventor. Absent a written assignment, the baseline rule under federal patent law — which governs who holds title to a patentable invention in California as elsewhere — is that rights belong to the employee who conceived it. The U.S. Supreme Court restated that premise in *Stanford v. Roche*, and although others may acquire an interest, that interest must trace back to the inventor. A California employer therefore depends on a written present-assignment clause — constrained by sections 2870–2872 — to take title at all [^stanford-inventor][^stanford-traceback]. *Stanford v. Roche* anchors the default. The Court held that the Bayh-Dole Act did not displace the long-standing rule that an invention belongs to its inventor, treating that premise as the baseline against which any assignment must be measured [^stanford-inventor]. "Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor."[^stanford-inventor] Because ownership starts with the inventor, an employer's title is derivative: it exists only if and to the extent the employee assigned it. Any third-party interest in the invention must trace back to that inventor-grantor [^stanford-traceback]. "Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor."[^stanford-traceback] California recognizes two narrow common-law overlays that can give an employer rights without an express assignment, but neither is a substitute for a written clause. Under the *hired-to-invent* doctrine, an employer takes equitable title where the employee was engaged specifically to invent or to solve the particular problem the invention solves — a fact-intensive exception that *Banner Metals, Inc. v. Lockwood* confined to employees actually hired for their inventive work. Separately, the *shop right* gives an employer a non-exclusive, non-transferable, royalty-free license, but only ownership-by-license, where the employee used the employer's time, facilities, or materials to develop the invention; *Aero Bolt & Screw Co. v. Iaia* denied even that where the employee used none of the employer's resources. Both doctrines are so limited that California employers rely instead on a written present-assignment (*hereby assigns*) clause — present-tense language that transfers legal title automatically on conception, rather than a future promise to assign — operating within the boundaries that sections 2870–2872 impose. ## Are trailing-assignment (holdover) clauses enforceable in California? {#holdover-clause-limit} **Short answer.** No, not when they reach genuinely post-employment inventions. In *Whitewater West Industries v. Alleshouse*, the Federal Circuit, applying California law, held that an assignment provision capturing an invention the employee conceived after the employment ended is void under Business and Professions Code section 16600 as a restraint on engaging in a lawful profession or business — and it is not rescued by sections 2870–2872 [^whitewater-void][^whitewater-16600]. The former employee in *Whitewater* left and then invented and patented new wave-pool technology without using any of his former employer's trade secrets. The court refused to enforce the trailing-assignment clause against him, holding the provision void under California law [^whitewater-void]. "In particular, we reverse the judgment of breach of contract because we hold that the assignment provision is void under California law."[^whitewater-void] The legal engine is section 16600, the same restraint-of-trade statute that voids employee non-competes. A clause that forces a worker to hand over inventions made after they leave restrains them from practicing their profession and is void to that extent [^whitewater-16600]. "First, California Business and Professions Code § 16600 states: ‘Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.’"[^whitewater-16600] Critically, the clause's vice was not that it protected secrets — it was that it reached too far. The provision applied even though no trade-secret or confidential information had to be used to conceive or build the post-employment invention, which is why it operated as an unlawful restraint rather than a permissible protection of trade secrets under sections 2870–2872. That reach is what makes California's limit a statutory one: an own-time carve-out plus a section 16600 ceiling on post-employment holdovers [^whitewater-notrade]. "No trade-secret or other confidential information need have been used to conceive the invention or reduce it to practice for the assignment provision to apply."[^whitewater-notrade] > [!NOTE] > **Practice note.** > > Do not paper a California employee with an out-of-state invention-assignment form. A form built for an assign-everything jurisdiction will usually omit the section 2872 written notice of the own-time carve-out, and it often contains a post-employment trailing-assignment (*holdover*) clause that *Whitewater* makes void under section 16600. Confirm the agreement carries the section 2872 notice at signing, limit the assignment to the categories section 2870 actually allows, and strike any clause reaching inventions conceived after employment ends [^stat-2872][^whitewater-void]. [^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org). Last reviewed 2026-06-29. License: CC BY 4.0. Steven Obiajulu, J.D. is admitted in New York, not California. This article synthesizes California primary law and is not legal advice from a California-admitted attorney. This article is for informational purposes only and does not create an attorney-client relationship. [^stat-2870]: **Cal. Lab. Code § 2870** — "Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer." *Cal. Lab. Code § 2870(a).* [^stat-2870-policy]: **Cal. Lab. Code § 2870** — "To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable." *Cal. Lab. Code § 2870(b).* [^cubic-disjunctive]: **Cubic Corp. v. Marty** — "The Legislature used the disjunctive ‘or’—if either of the two conditions (scope of business or work otherwise performed by the employee for the employer) are not met, then section 2870 does cover the invention." *Cubic Corp. v. Marty, 185 Cal. App. 3d 438 (1986).* [^cubic-either]: **Cubic Corp. v. Marty** — "we construe the statutory language to cover both the situation where the invention comes within the scope of the employer’s business (actual or demonstrably anticipated) and the situation where the invention was not within the usual scope of the employer’s business but resulted from work the employee did for the employer. If either situation is present, then the employer has a right to the invention under an assignment agreement." *Cubic Corp. v. Marty, 185 Cal. App. 3d 438 (1986).* [^stat-2871]: **Cal. Lab. Code § 2871** — "No employer shall require a provision made void and unenforceable by Section 2870 as a condition of employment or continued employment." *Cal. Lab. Code § 2871.* [^cubic-condition]: **Cubic Corp. v. Marty** — "The Legislature has stated an agreement to assign an invention which falls within Labor Code section 2870 cannot be made a condition of employment or continued employment." *Cubic Corp. v. Marty, 185 Cal. App. 3d 438 (1986).* [^stat-2872]: **Cal. Lab. Code § 2872** — "If an employment agreement entered into after January 1, 1980, contains a provision requiring the employee to assign or offer to assign any of his or her rights in any invention to his or her employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention which qualifies fully under the provisions of Section 2870." *Cal. Lab. Code § 2872.* [^stat-2872-burden]: **Cal. Lab. Code § 2872** — "In any suit or action arising thereunder, the burden of proof shall be on the employee claiming the benefits of its provisions." *Cal. Lab. Code § 2872.* [^stanford-inventor]: **Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Systems** — "Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor." *Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).* [^stanford-traceback]: **Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Systems** — "Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor." *Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).* [^whitewater-void]: **Whitewater West Industries, Ltd. v. Alleshouse** — "In particular, we reverse the judgment of breach of contract because we hold that the assignment provision is void under California law." *Whitewater W. Indus., Ltd. v. Alleshouse, 981 F.3d 1045 (Fed. Cir. 2020).* [^whitewater-16600]: **Whitewater West Industries, Ltd. v. Alleshouse** — "First, California Business and Professions Code § 16600 states: ‘Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.’" *Whitewater W. Indus., Ltd. v. Alleshouse, 981 F.3d 1045 (Fed. Cir. 2020) (quoting Cal. Bus. & Prof. Code § 16600).* [^whitewater-notrade]: **Whitewater West Industries, Ltd. v. Alleshouse** — "No trade-secret or other confidential information need have been used to conceive the invention or reduce it to practice for the assignment provision to apply." *Whitewater W. Indus., Ltd. v. Alleshouse, 981 F.3d 1045 (Fed. Cir. 2020).*