Can a Kansas employer require assignment of every invention?
No. K.S.A. 44-130 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 actual or demonstrably anticipated research or 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 void and unenforceable.
Subsection (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 .
Subsection (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 the public policy of the state .
The same subsection closes the obvious workaround. An employer cannot demand the void assignment anyway by making the employee sign it to keep the job — a provision made void by the section may not be required as a condition of employment or continuing employment .
Sources for this answer
Primary law
A.1 K.S.A. 44-130K.S.A. 44-130(a) makes an assignment clause inapplicable to an invention the employee developed entirely on their own time without the employer's equipment, supplies, facilities, or trade-secret information, unless the invention relates to the employer's business or its actual or demonstrably anticipated research or development, or results from the employee's work.
Any provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer shall not apply to an invention for which no equipment, supplies, facilities or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless: (1) The invention relates to the business of the employer or to the employer's actual or demonstrably anticipated research or development; or (2) the invention results from any work performed by the employee for the employer.
See K.S.A. 44-130(a).
Primary law
A.2 K.S.A. 44-130K.S.A. 44-130(b) declares any provision purporting to apply to an own-time, own-resource invention outside the statute's exceptions to that extent against the public policy of the state and void and unenforceable, and bars an employer from requiring such a void provision as a condition of employment or continuing employment.
Any provision in an employment agreement which purports to apply to an invention which it is prohibited from applying to under subsection (a), is to that extent against the public policy of this state and is to that extent void and unenforceable. No employer shall require a provision made void and unenforceable by this section as a condition of employment or continuing employment.
See K.S.A. 44-130(b).
Must a Kansas employer notify the employee?
Yes. K.S.A. 44-130(c) requires an employer whose agreement contains an invention-assignment provision to provide the employee, at the time the agreement is made, a written notification that the agreement does not apply to a qualifying own-time, own-resource invention. No Kansas court has construed the statute, so the remedy for a missing notice is unsettled — no case addressing it turned up in our review — but the obligation is written as a mandatory command, and a drafter should treat it as such.
The notice obligation is contemporaneous, not eventual: the written notification must accompany the agreement at the time it is made. It does not change which inventions are carved out — subsection (a) does that — but it ensures the employee is told the carve-out exists .
One textual quirk deserves attention. The carve-out in subsection (a) applies unless the invention relates to the employer's business; the notice subsection describes the same exception as an invention that relates directly to the employer's business. The word directly appears in the notice provision but not in the operative carve-out, so a careful drafter should quote each subsection as written rather than assume they are identical .
The carve-out is not a free pass to keep side projects secret. Subsection (d) adds a disclosure duty running the other way: even when the employee meets the burden of proving the carve-out conditions, the employee must disclose inventions being developed so the parties can sort out who owns what .
Sources for this answer
Primary law
B.1 K.S.A. 44-130K.S.A. 44-130(c) requires an employer whose agreement contains an assignment provision to provide the employee, at the time the agreement is made, a written notification that the agreement does not apply to a qualifying own-time, own-resource invention, and phrases the exception as an invention that relates directly to the employer's business.
If an employment agreement contains a provision requiring the employee to assign any of the employee's rights in any invention to the employer, the employer shall provide, at the time the agreement is made, a written notification to the employee that the agreement does not apply to an invention for which no equipment, supplies, facility or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless: (1) The invention relates directly to the business of the employer or to the employer's actual or demonstrably anticipated research or development; or (2) the invention results from any work performed by the employee for the employer.
See K.S.A. 44-130(c).
Primary law
B.2 K.S.A. 44-130K.S.A. 44-130(d) requires the employee, even after meeting the burden of proving the carve-out conditions, to disclose at the time of employment or thereafter all inventions being developed, for the purpose of determining employer and employee rights.
Even though the employee meets the burden of proving the conditions specified in this section, the employee shall disclose, at the time of employment or thereafter, all inventions being developed by the employee, for the purpose of determining employer and employee rights in an invention.
See K.S.A. 44-130(d).
Who owns an invention by default in Kansas?
The inventor. Absent a written assignment, the baseline rule under federal patent law — which governs who holds title to a patentable invention in Kansas 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. The narrow hired-to-invent overlay can give an employer equitable title, but only where the employee was specifically directed to invent — so a Kansas employer depends on a written present-assignment clause to take title reliably.
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 .
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 .
Federal common law recognizes one narrow overlay that can give an employer equitable title without an express assignment: the hired-to-invent doctrine. Its classic statement is in United States v. Dubilier Condenser Corp., where the Supreme Court explained that an employee employed to make an invention who accomplishes that task during the term of service is bound to assign the resulting patent .
The doctrine is demanding, and Kansas courts have not squarely mapped its contours in a published invention-ownership decision. The Eighth Circuit's articulation in Farmers Edge Inc. v. Farmobile, LLC — applying the general federal rule a Kansas court would most likely follow — makes the point: mere employment is not enough; the employer must show the employee received a certain amount of specific direction to invent the thing in question .
Because that showing is fact-intensive and uncertain, a Kansas employer should not rely on it. The dependable path is 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 K.S.A. 44-130 imposes.
Sources for this answer
Case law · 2011-06-06
C.1 Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular SystemsStanford v. Roche confirms the long-standing premise of U.S. patent law that rights in an invention belong to the inventor.
Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Case law · 2011-06-06
C.2 Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular SystemsStanford v. Roche holds that although others may acquire an interest in an invention, that interest as a general rule must trace back to the inventor — so an employer takes title only through an assignment from the employee-inventor.
Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Case law · 1933-05-08
C.3 United States v. Dubilier Condenser Corp.Dubilier states the hired-to-invent baseline: an employee employed to make an invention who accomplishes that task during the term of service is bound to assign the resulting patent to the employer.
One employed to make an invention, who succeeds, during his term of service, in accomplishing that task, is bound to assign to his employer any patent obtained.
See United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).
Case law · 2020-08-17
C.4 Farmers Edge Inc. v. Farmobile, LLCFarmers Edge v. Farmobile states the hired-to-invent standard: to prevail on a hired-to-invent theory, the employer must show the employee was given a certain amount of specific direction to invent — a general federal patent common-law rule a Kansas court would most likely follow, as no on-point Kansas decision turned up in our review.
To prevail on its hired-to-invent theory based on an implied contract, FEI must show that the employees were given a certain amount of specific direction from their employer.
See Farmers Edge Inc. v. Farmobile, LLC, 970 F.3d 1027 (8th Cir. 2020).
Are trailing-assignment (holdover) clauses enforceable in Kansas?
Only so far as reasonable. K.S.A. 44-130 caps what an assignment clause may reach during employment, but it says nothing about a clause reaching inventions conceived after the employment ends, and no Kansas case found in our review squarely limits an invention holdover. Kansas does, though, enforce a post-employment restrictive covenant only when the restraint is reasonable under the circumstances and not adverse to the public welfare, so a trailing-assignment clause reaching post-employment inventions would most likely be measured against that same reasonableness standard.
Start with the statute's silence. K.S.A. 44-130 governs what an assignment clause may reach during employment, voiding any provision that purports to capture a qualifying own-time invention. It imposes no durational cap and says nothing, one way or the other, about a clause reaching inventions conceived after the employment relationship ends .
Because the statute is silent, the closest governing law is Kansas's settled rule for post-employment restraints. The Kansas Supreme Court enforces a noncompetition covenant ancillary to employment only where the restraint is reasonable under the circumstances and not adverse to the public welfare .
Applying that standard to an invention holdover is a prediction, not a Kansas holding — but the drafting lesson follows directly: a trailing clause reasonable in duration and no broader than necessary to protect a legitimate interest such as trade secrets or confidential information stands a far better chance than one that sweeps in every invention an employee conceives for years after departure, untethered to the employer's confidential information — the kind of overreach a Kansas court would be most likely to pare back or refuse to enforce.
No Kansas decision found in our review squarely decides whether a post-employment invention-holdover clause is enforceable, so this is a prediction from the statute's silence and the general reasonableness rule, not a holding. A drafter should keep any Kansas holdover clause narrow — short in duration and limited to inventions that derive from the employer's confidential information — rather than rely on an aggressive trailing-assignment clause surviving review.
Sources for this answer
Primary law
D.1 K.S.A. 44-130K.S.A. 44-130(b) voids any provision purporting to apply to a qualifying own-time invention during employment, but imposes no durational cap and is silent about clauses reaching inventions conceived after employment ends.
Any provision in an employment agreement which purports to apply to an invention which it is prohibited from applying to under subsection (a), is to that extent against the public policy of this state and is to that extent void and unenforceable.
See K.S.A. 44-130(b).
Case law · 1996-03-08
D.2 Weber v. TillmanWeber v. Tillman states the settled Kansas standard for post-employment restraints — a noncompetition covenant ancillary to an employment contract is enforceable only if the restraint is reasonable under the circumstances and not adverse to the public welfare; applying that standard to an invention holdover is a prediction, as no Kansas decision found in our review has done so.
A noncompetition covenant ancillary to an employment contract is valid and enforceable if the restraint is reasonable under the circumstances and not adverse to the public welfare.
See Weber v. Tillman, 259 Kan. 457, 464, 913 P.2d 84 (1996).
Do not paper a Kansas employee with an out-of-state invention-assignment form. A form built for an assign-everything jurisdiction will usually omit the K.S.A. 44-130(c) written notice of the own-time carve-out, and it often contains an aggressive post-employment trailing-assignment (holdover) clause. Confirm the agreement carries the K.S.A. 44-130(c) notice at signing, limit the assignment to what K.S.A. 44-130(a) actually allows, and keep any holdover clause narrow enough to survive Kansas's reasonableness review. Note too that the statute's disclosure duty runs the other way — subsection (d) obligates the employee, not the employer, to disclose inventions being developed.