Can a Montana employer require assignment of every invention?
There is no employee-protective ceiling — Montana has no §2870-style statute voiding the assignment of a true own-time, own-resource invention — but Montana is not a pure no-statute state either. MCA § 39-2-102, an 1895 Field Civil Code provision, declares that everything an employee acquires by virtue of employment belongs to the employer, and whether that partial employer-ownership rule reaches inventions is an open question no Montana court has decided.
Start with what the statute books do and do not contain. Montana has enacted no employee-invention-assignment statute: nothing in the Montana Code Annotated voids an overreaching assignment clause, carves out own-time inventions, or requires any disclosure about the clause's limits. What Title 39 does contain is a much older and much broader provision — § 39-2-102, captioned What belongs to employer — that sweeps in everything an employee acquires by virtue of the employment .
Read literally, that text plausibly reaches an invention conceived by virtue of the employment — which would make Montana employer-favoring rather than employee-protective. But the statute never mentions inventions, and the only Montana Supreme Court decision to confront it in an employee-intellectual-property dispute declined to give it that automatic effect. In Associated Management Services, Inc. v. Ruff, a fight over payroll software the employee had developed, the court said it had not previously construed how § 39-2-102 interacts with the employee-duty statutes, and it resolved ownership through the parties' contract instead — the employment relationship, the court emphasized, is primarily a contractual one .
So Montana sits between the two familiar camps. It is not a carve-out state — a Montana employer can, in principle, contract for assignment more broadly than a California or Washington employer, because no statute voids the overreach. And it is not a clean no-statute state — § 39-2-102 hovers over the analysis as a possible employer-ownership default that a future court could apply to inventions. The uncertainty comes from ambiguous statutory text plus missing case law, not from any conflict in the decided cases. The practical limits on an aggressive clause are ordinary contract law and, for post-employment reach, Montana's restraint-of-trade framework (see the holdover question below).
Sources for this answer
Primary law
A.1 Mont. Code Ann. § 39-2-102MCA § 39-2-102, enacted as part of Montana's 1895 Field Civil Code, makes everything an employee acquires by virtue of employment the employer's property except compensation due — a partial employer-ownership statute that plausibly reaches inventions but never mentions them and has never been applied to one.
Everything that an employee acquires by virtue of employment, except the compensation, if any, that is due from the employee's employer, belongs to the employer, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment.
See Mont. Code Ann. § 39-2-102.
Case law · 2018-07-24
A.2 Associated Mgmt. Servs., Inc. v. RuffAssociated Mgmt. Servs. v. Ruff shows the Montana Supreme Court had not previously construed how § 39-2-102 interacts with the employee-duty statutes and treats the employment relationship as primarily contractual — so no Montana holding makes the statute an automatic invention-assignment rule.
Though we have not heretofore construed the interplay between §§ 39-2-102, -403, and -409, MCA, the employment relationship is primarily a contractual relationship. Section 39-2-101, MCA.
See Associated Mgmt. Servs., Inc. v. Ruff, 2018 MT 182, 392 Mont. 139, 424 P.3d 571.
Must a Montana employer notify the employee?
Not applicable. Because Montana has no invention-assignment statute, there is no statutory carve-out to notify the employee about and no notice requirement of the kind California imposes under Labor Code § 2872 or Washington imposes under RCW 49.44.140(3). The one Montana statute that touches employee acquisitions, MCA § 39-2-102, vests ownership language in the employer without conditioning anything on notice to, or disclosure by, anyone .
There is nothing to give notice of. Notice statutes exist to alert the employee to a statutory own-time carve-out that limits the assignment clause; Montana has enacted no such carve-out, so there is no statutory line for a notice to mark. That is why this entry is marked not applicable rather than a bare no — the question presupposes a statutory regime Montana does not have.
Nor does the employer-acquisition statute impose any procedural formality of its own. Its text operates unconditionally, without reference to any warning, acknowledgment, or disclosure .
For a multistate employer the takeaway is symmetrical: a Montana employer neither has to give a § 2872-style notice nor can rely on one to cure an overbroad clause. Whether an assignment binds turns on the contract language, the unresolved statutory default discussed elsewhere on this page, and the general limits on restraints — not on any notice formality.
Sources for this answer
Primary law
B.1 Mont. Code Ann. § 39-2-102MCA § 39-2-102 operates unconditionally by its terms, without requiring any notice to or disclosure by the employee — and Montana has no invention-assignment statute, so no statutory notice regime of any kind exists.
Everything that an employee acquires by virtue of employment, except the compensation, if any, that is due from the employee's employer, belongs to the employer, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment.
See Mont. Code Ann. § 39-2-102.
Who owns an invention by default in Montana?
Genuinely unclear — Montana is caught between two defaults that point in opposite directions. The federal baseline is that rights in an invention belong to the inventor unless assigned, subject to the narrow hired-to-invent exception and the employer's shop right. But MCA § 39-2-102's text — everything acquired by virtue of employment belongs to the employer — points the other way, and no Montana court has resolved the tension for an invention.
The federal starting point is settled. Stanford v. Roche restates the premise that has governed since the first Patent Act: an invention belongs to the person who conceived it .
Against that baseline, the traditional common-law doctrines allocate limited rights to the employer. Under United States v. Dubilier Condenser Corp., an employee hired to invent must assign the resulting patent , and an employee who used the employer's time, materials, and appliances owes the employer a shop right — a non-exclusive license, not ownership .
Note the framing here: our review found no Montana Supreme Court decision adopting or applying the shop-right or hired-to-invent doctrines. A Montana court confronting an ownership fight without a written assignment would be writing on a clean slate, with Dubilier the canonical statement it would most likely consult — a prediction, not Montana authority.
What makes Montana genuinely uncertain rather than merely quiet is § 39-2-102. Read literally, the statute would hand the employer everything the employee acquires by virtue of the employment — which, applied to an invention, would displace the inventor-first baseline entirely .
The Montana Supreme Court treats that text as live law — in Associated Management Services, Inc. v. Ruff it recited the rule while analyzing an employer's claim to employee-developed software .
Yet Ruff did not treat the statute as automatic employer ownership. The court resolved the dispute through the parties' contract, holding that the employment relationship is primarily contractual and that the agreement's scope defined what the employer owned — the employer did not automatically acquire work product created outside contract-defined duties .
Open statutory question: whether § 39-2-102 reaches patentable inventions at all. No Montana case applies it to a patent, Ruff signals contract primacy and scope-of-duties limits, and under federal law any employer interest in a patent must in any event trace back to the inventor through some transfer — but a Montana court could still treat the statute as an ownership hook for an in-scope invention. This page therefore reports the default as unclear rather than picking a side the authorities have not picked.
The drafting consequence is the same one careful employers reach everywhere, only more urgent here: because the default is contested, a written present-assignment clause (hereby assigns) that transfers title automatically on conception is the dependable path, and relying on the statutory default is a litigation position, not a plan.
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 — the federal baseline that competes with MCA § 39-2-102's employer-favoring text in Montana.
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 · 1933-05-08
C.4 United States v. Dubilier Condenser Corp.United States v. Dubilier Condenser Corp. holds that an employee hired to make an invention who succeeds during the term of service is bound to assign the resulting patent to the employer — the hired-to-invent exception a Montana court would most likely consult, since our review found no Montana decision adopting it.
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 · 1933-05-08
C.5 United States v. Dubilier Condenser Corp.United States v. Dubilier Condenser Corp. states the shop-right rule — an employee who conceives and perfects an invention on the employer's time with the employer's materials owes the employer a non-exclusive right to practice it, not ownership; our review found no Montana decision applying the doctrine, so it operates here only as the federal baseline a Montana court would most likely consult.
where a servant, during his hours of employment, working with his master's materials and appliances, conceives and perfects an invention for which he obtains a patent, he must accord his master a non-exclusive right to practice the invention.
See United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).
Primary law
C.2 Mont. Code Ann. § 39-2-102MCA § 39-2-102's text vests everything an employee acquires by virtue of employment in the employer — an employer-favoring state-law default that, if applied to inventions, would displace the federal inventor-first baseline; no Montana court has decided whether it applies.
Everything that an employee acquires by virtue of employment, except the compensation, if any, that is due from the employee's employer, belongs to the employer, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment.
See Mont. Code Ann. § 39-2-102.
Case law · 2018-07-24
C.3 Associated Mgmt. Servs., Inc. v. RuffAssociated Mgmt. Servs. v. Ruff recites § 39-2-102's employer-acquisition rule as live Montana law in an employee-intellectual-property dispute, showing the statute cannot be dismissed when predicting Montana's default ownership rule.
Moreover, except for compensation due, "[e]verything that an employee acquires by virtue of employment
See Associated Mgmt. Servs., Inc. v. Ruff, 2018 MT 182, 392 Mont. 139, 424 P.3d 571.
Case law · 2018-07-24
C.6 Associated Mgmt. Servs., Inc. v. RuffAssociated Mgmt. Servs. v. Ruff resolves an employee-created-IP ownership dispute on contract primacy — the employment relationship is primarily contractual — rather than treating § 39-2-102 as automatic employer ownership, leaving the statute's reach over inventions undecided.
Though we have not heretofore construed the interplay between §§ 39-2-102, -403, and -409, MCA, the employment relationship is primarily a contractual relationship. Section 39-2-101, MCA.
See Associated Mgmt. Servs., Inc. v. Ruff, 2018 MT 182, 392 Mont. 139, 424 P.3d 571.
Case law · 2011-06-06
C.7 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 whatever state-law default MCA § 39-2-102 supplies, an employer's federal patent title still runs through a transfer 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).
Are trailing-assignment (holdover) clauses enforceable in Montana?
Only so far as reasonable, most likely — by analogy, not by holding. Our review found no Montana decision addressing a post-employment invention-assignment tail. What Montana does have is a statutory restraint-of-trade framework: MCA § 28-2-703 voids a contract restraining anyone from exercising a lawful profession, trade, or business except in two narrow statutory situations, and the Montana Supreme Court enforces employment covenants only when reasonable and supported by a legitimate business interest. A court asked to enforce an aggressive holdover clause would most likely test it under that framework.
The statutory backdrop is categorical. Montana, like a handful of states that inherited the same Field Code text, starts from a void-unless-excepted rule for restraints of trade .
The two statutory exceptions cover the sale of a business's goodwill and partnership dissolution — neither covers an employment invention clause. Employment covenants survive in Montana only through the reasonableness gloss the Montana Supreme Court has applied to the statute. In Access Organics, Inc. v. Hernandez, the court restated that a covenant not to compete is upheld as reasonable only if it meets three requirements .
The same decision underscores how those covenants are read: Montana public policy strongly disfavors restraints, so covenants are construed strictly .
Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C. adds a threshold requirement with real bite for trailing clauses: the covenant must serve a legitimate business interest, and the employer normally forfeits that interest by ending the relationship itself .
Three hedges keep this honest. First, extending the covenant framework to an invention holdover is a prediction: no Montana court has faced one, and a court could instead treat a narrow trailing clause as pure ownership allocation rather than a restraint. Second, the trigger matters — a clause that functions as a practical restraint on the former employee's ability to work in the field is the kind most likely to draw § 28-2-703 scrutiny; a short tail tied to inventions conceived from the employer's confidential information looks less like a restraint. Third, our review found no Montana authority on reforming an overbroad clause, and the strict-construction approach gives no assurance a court would trim an overreaching tail rather than refuse to enforce it — § 28-2-703's own text voids an offending contract to that extent.
Sources for this answer
Primary law
D.1 Mont. Code Ann. § 28-2-703MCA § 28-2-703 voids, to that extent, any contract restraining anyone from exercising a lawful profession, trade, or business except in the two narrow statutory situations of §§ 28-2-704 and 28-2-705 — the restraint-of-trade framework under which a Montana court would most likely test a post-employment trailing-assignment clause.
Any contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind, otherwise than is provided for by 28-2-704 or 28-2-705, is to that extent void.
See Mont. Code Ann. § 28-2-703.
Case law · 2008-01-03
D.2 Access Organics, Inc. v. HernandezAccess Organics, Inc. v. Hernandez restates Montana's three-part reasonableness test for covenants restraining employment — restricted in time or place, supported by good consideration, and no broader than fair protection of the covenantee without interfering with the public interest — the test a court would most likely adapt to an invention holdover clause.
(1) [I]t must be partial or restricted in its operation in respect either to time or place; (2) it must be on some good consideration; and (3) it must be reasonable, that is, it should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public.
See Access Organics, Inc. v. Hernandez, 2008 MT 4, 341 Mont. 73, 175 P.3d 899.
Case law · 2008-01-03
D.4 Access Organics, Inc. v. HernandezAccess Organics, Inc. v. Hernandez holds that because Montana public policy strongly disfavors agreements in restraint of trade, covenants are construed strictly — a canon that cuts against saving an overbroad trailing-assignment clause by narrowing it.
Since Montana’s public policy strongly disfavors agreements in restraint of trade, as discussed above, we construe non-compete agreements strictly
See Access Organics, Inc. v. Hernandez, 2008 MT 4, 341 Mont. 73, 175 P.3d 899.
Case law · 2011-11-22
D.3 Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C.Wrigg v. Junkermier holds that an employer normally lacks a legitimate business interest in a covenant when it chooses to end the employment relationship — a threshold requirement that would weigh heavily against enforcing a trailing-assignment clause after an employer-initiated termination.
We agree that an employer normally lacks a legitimate business interest in a covenant when it chooses to end the employment relationship.
See Wrigg v. Junkermier, Clark, Campanella, Stevens, P.C., 2011 MT 290, 362 Mont. 496, 265 P.3d 646.
Case law · 2018-07-24
D.5 Associated Mgmt. Servs., Inc. v. RuffAssociated Mgmt. Servs. v. Ruff resolves an employee-created-IP ownership dispute on contract primacy — the employment relationship is primarily contractual — rather than treating § 39-2-102 as automatic employer ownership, leaving the statute's reach over inventions undecided.
Though we have not heretofore construed the interplay between §§ 39-2-102, -403, and -409, MCA, the employment relationship is primarily a contractual relationship. Section 39-2-101, MCA.
See Associated Mgmt. Servs., Inc. v. Ruff, 2018 MT 182, 392 Mont. 139, 424 P.3d 571.
Case law · 2011-06-06
D.6 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 whatever state-law default MCA § 39-2-102 supplies, an employer's federal patent title still runs through a transfer 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).
Do not treat MCA § 39-2-102 as a self-sufficient assignment. Whether the statute reaches inventions is undecided, and the Montana Supreme Court has resolved employee-created-IP ownership through the contract rather than the statute . Federal patent title must in any event trace back to the inventor, so use a written present-assignment (hereby assigns) clause that transfers title automatically on conception instead of relying on the contested statutory default . And keep any trailing or holdover tail narrow, short, and tied to the employer's protectable information, because Montana voids restraints of trade outside two narrow exceptions, construes covenants strictly, and normally denies a legitimate business interest to an employer who ends the relationship itself.