# Employee Invention Assignment in North Dakota[^about]

North Dakota has no California-style own-time carve-out — instead, N.D.C.C. § 34-02-11 makes what an employee acquires by virtue of the employment belong to the employer, a default the Eighth Circuit construed for patent ownership through the hired-to-invent lens in Keller v. Clark Equipment Co. and the North Dakota Supreme Court adopted in First American Bank West v. Berdahl. There is no notice requirement, a written present-assignment clause is still needed for clean federal patent title, and a post-employment holdover clause that functions as a restraint faces outright voidness under N.D.C.C. § 9-08-06 rather than reasonableness balancing.

## Can a North Dakota employer require assignment of every invention? {#statutory-carve-out}

**Short answer.** There is no employee carve-out — the statute runs the other way. North Dakota has no §2870-style law protecting an employee's own-time, own-resource inventions. Instead, N.D.C.C. § 34-02-11 provides that everything an employee acquires by virtue of the employment belongs to the employer, except compensation due the employee — an employer-acquisition default, not a limit on assignment clauses. The Eighth Circuit applied that statute to patent ownership in *Keller v. Clark Equipment Co.*, and the North Dakota Supreme Court adopted the *Keller* construction in *First American Bank West v. Berdahl* [^nd-34-02-11-employer-acquisition][^keller-patent-application][^berdahl-adopts-keller-q1].

The statutory text is broad and runs in the employer's favor [^nd-34-02-11-employer-acquisition].

"Everything which an employee acquires by virtue of the employee's employment, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment, except any compensation which is due the employee from the employee's employer, belongs to the employer."[^nd-34-02-11-employer-acquisition]

No provision of the North Dakota Century Code carves out an employee's own-time inventions from that default or from the reach of an assignment clause: chapter 34-02, the chapter governing the obligations of employers and employees, contains no invention carve-out, and the state has enacted no analogue to California Labor Code §2870. So the drafting question in North Dakota is not how far an assignment clause may reach during employment — the statute already points in-scope work product at the employer — but whether post-employment reach survives the state's restraint-of-trade statute, addressed in the trailing-clause question below.

The statute has been applied in a real patent fight. In *Keller v. Clark Equipment Co.*, the Eighth Circuit, applying North Dakota law to the skid-steer loader patents, concluded that the employer would have owned the disputed patent under the statute had the parties not agreed otherwise [^keller-patent-application].

"Melroe would have been the exclusive owner of the 117 patent under N.D.Cent.Code § 34-02-11."[^keller-patent-application]

Two limits keep this from being a blank check. First, *Keller* construed the statute in a hired-to-invent posture — the inventor there had been hired for his inventive abilities — so the case does not establish that the statute captures an invention by an employee who was not hired to invent (see the default-ownership question below) [^keller-patent-application]. Second, the statute itself yields to an express or implied agreement to the contrary, which is how the inventors in *Keller* kept their ownership, and which the North Dakota Supreme Court reaffirmed when it adopted the *Keller* construction [^berdahl-adopts-keller-q1].

"Following the Keller interpretation of N.D.C.C. § 34-02-11, we conclude, absent an agreement to the contrary, the commissions earned by Berdahl belonged to the Bank."[^berdahl-adopts-keller-q1]

One adjacent statute deserves a flag. N.D.C.C. § 47-07-04 gives the author of any product of the mind — expressly including an invention — exclusive ownership for as long as the product remains in the author's possession [^nd-47-07-04-products-of-the-mind]. No North Dakota decision found in our review construes that author-ownership provision against § 34-02-11's employer-acquisition rule, so the tension between the two Field Code companions is real but unresolved; the cases to date have run the analysis through § 34-02-11.

"The author of any product of the mind, whether it is an invention, a composition in letters or art, a design, with or without delineation or other graphical representation, has an exclusive ownership therein and in the representation or expression thereof which continues as long as the product and the representations or expressions thereof made by the author remain in the author's possession."[^nd-47-07-04-products-of-the-mind]

## Must a North Dakota employer notify the employee? {#employee-notice}

**Short answer.** No. North Dakota has a statutory invention-ownership regime, but it imposes no notice, disclosure, or acknowledgment duty of any kind — the contrast is with California, which requires written notice of the Labor Code §2870 carve-out under §2872, and Washington, which requires one under RCW 49.44.140(3). Those notice duties exist to mark a statutory employee carve-out; N.D.C.C. § 34-02-11 protects the employer, not the employee, so there is no statutory line for a notice to mark [^nd-34-02-11-no-notice].

The statute vests the employer's interest unconditionally on its face — nothing in the text ties the employer's ownership to any warning, form, or disclosure given to the employee [^nd-34-02-11-no-notice].

"Everything which an employee acquires by virtue of the employee's employment, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment, except any compensation which is due the employee from the employee's employer, belongs to the employer."[^nd-34-02-11-no-notice]

The neighboring provision sometimes mistaken for a disclosure regime points the other way. N.D.C.C. § 34-02-12 is an accounting-and-remittance rule — it obliges the *employee* to account to the employer and to give prompt notice of everything received for the employer's account; it imposes no invention-disclosure duty on either side and no employer notice obligation [^nd-34-02-12-accounting].

"An employee, upon demand, shall render to the employee's employer just accounts of all the employee's transactions in the course of the employee's service as often as may be reasonable, and the employee shall give, without demand, prompt notice to the employee's employer of everything which the employee receives for the employer's account."[^nd-34-02-12-accounting]

As a matter of drafting hygiene, a multistate confidential-information-and-invention-assignment agreement will often carry a §2872-style notice anyway, along with a prior-inventions schedule. In North Dakota that is portability, not compliance — the notice neither is required nor cures anything.

## Who owns an invention by default in North Dakota? {#default-ownership}

**Short answer.** For an employee hired to invent, the employer — by statute as construed. In *Keller v. Clark Equipment Co.*, the Eighth Circuit read N.D.C.C. § 34-02-11 through the prevailing hired-to-invent rule: an employee hired for inventive work who succeeds must assign the resulting patent, so absent a contrary agreement the employer owns. The North Dakota Supreme Court adopted that construction in *First American Bank West v. Berdahl*. For an employee who was *not* hired to invent, the question is open — the statute's literal everything-belongs-to-the-employer text points one way, the federal baseline that an invention belongs to its inventor points the other, and no North Dakota shop-right decision was found in our review [^keller-prevailing-view][^berdahl-adopts-keller][^stanford-inventor-baseline].

*Keller* is the construing case. Writing on a clean slate, the Eighth Circuit anchored § 34-02-11 to the prevailing national rule for employees hired to invent [^keller-prevailing-view].

"Although there are no cases construing this North Dakota law, the prevailing view in the United States is that when a person is employed for the purpose of inventing, and he or she succeeds in that task during the period of employment, the employer is the equitable owner of the invention and the employee must assign to the employer any patent he or she may obtain on the invention."[^keller-prevailing-view]

The court then applied that rule to the facts — the inventor had been hired for his inventive abilities, which is what put the patent within the statute's reach [^keller-hired-for-inventive-abilities].

"The district court found that Louis Keller was hired for his inventive abilities."[^keller-hired-for-inventive-abilities]

What converts that Eighth Circuit prediction into North Dakota law is *Berdahl*: the state supreme court expressly followed the *Keller* interpretation, and its formulation preserves the same escape hatch — an agreement to the contrary displaces the statutory default, which is exactly how the *Keller* inventors kept their patent despite the statute [^berdahl-adopts-keller].

"Following the Keller interpretation of N.D.C.C. § 34-02-11, we conclude, absent an agreement to the contrary, the commissions earned by Berdahl belonged to the Bank."[^berdahl-adopts-keller]

Outside the hired-to-invent posture, the residue is genuinely uncertain. The federal baseline restated in *Stanford v. Roche* is that rights in an invention start with the inventor [^stanford-inventor-baseline], and under *United States v. Dubilier Condenser Corp.* an employee who was not hired to invent ordinarily keeps the invention, leaving the employer at most a shop right [^dubilier-hired-to-invent]. But § 34-02-11's text is not so limited, *Berdahl* applied it broadly to non-invention property, and our review found no North Dakota shop-right case at all. The honest statement of North Dakota's default is therefore layered: employer ownership where the employee was hired to invent, and an unresolved contest between the statute's literal breadth and the federal inventor-first baseline everywhere else.

"Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor."[^stanford-inventor-baseline]

"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."[^dubilier-hired-to-invent]

Whatever the statute captures, it does not substitute for a written assignment. *Keller* frames the employer's statutory position as equitable ownership plus a duty to assign — not automatic legal title — and federal patent law recognizes transfers of legal title through a written instrument [^keller-prevailing-view]. So a North Dakota employer that wants a clean, recordable chain of title still needs a present-assignment clause (*hereby assigns*) that moves legal title from the inventor automatically on conception, rather than resting on the statute or on a future promise to assign [^stanford-inventor-baseline].

## Are trailing-assignment (holdover) clauses enforceable in North Dakota? {#holdover-clause-limit}

**Short answer.** Untested — and the governing framework is voidness, not reasonableness. No North Dakota decision found in our review addresses a post-employment trailing-assignment clause. The statute such a clause would be tested under is N.D.C.C. § 9-08-06, which voids a contract restraining anyone from exercising a lawful profession, trade, or business to that extent, subject only to narrow sale-of-goodwill and business-dissolution exceptions. The North Dakota Supreme Court reads the statute strictly and has refused to soften it with judicially created exceptions, so a holdover clause that operates as a de facto non-compete faces being struck outright — severed as void, not rewritten to a reasonable scope [^nd-9-08-06-restraint-void][^warner-no-ambiguity][^warner-declines-california].

The statutory text does the work. A restraining contract is void to that extent — the statute contains no reasonableness test for employment restraints and no authorization to trim an overbroad clause down to an enforceable core [^nd-9-08-06-restraint-void].

"A contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:"[^nd-9-08-06-restraint-void]

*Warner and Co. v. Solberg* is the modern statement that the statute means what it says [^warner-no-ambiguity].

"We see no ambiguity in N.D.C.C. § 9-08-06."[^warner-no-ambiguity]

*Warner* was urged to import the softening doctrines that courts elsewhere — including California, whose restraint statute shares the same Field Code text — had layered onto the rule, such as exceptions for trade secrets and customer lists. The court declined [^warner-declines-california].

"Because of the plain language of the statute, the history of legislation in North Dakota concerning this issue, and because North Dakota has enacted trade-secrets legislation, we decline to do so."[^warner-declines-california]

*Osborne v. Brown & Saenger, Inc.* adds the policy weight and closes the procedural escape route: North Dakota treats § 9-08-06 as a strong public policy, and it will not let an employer route around the statute with a foreign forum-selection or choice-of-law clause [^osborne-strong-public-policy].

"Thus, we conclude that North Dakota has a strong public policy against non-compete agreements."[^osborne-strong-public-policy]

What does that mean for a trailing invention-assignment clause? The threshold question — whether a holdover assignment is a restraint on exercising a profession at all, rather than a mere allocation of intellectual-property ownership — has never been decided in North Dakota, and *Warner* itself shows that a narrowly drawn post-employment clause can escape the statute when it does not actually restrain the former employee's ability to work. But if a court characterizes an untethered holdover — one sweeping in inventions conceived after employment ends, unmoored from the employer's trade secrets or the employee's prior work — as a de facto non-compete, the consequence under § 9-08-06 is outright voidness of the offending reach. The phrase to that extent void means severance of the offending restraint, not blue-pencil reformation to a reasonable duration or scope, and *Warner* forecloses the argument that some less burdensome version should survive [^nd-9-08-06-restraint-void][^warner-declines-california].

None of this makes invention-assignment agreements suspect in themselves. In *SolarBee, Inc. v. Walker*, the North Dakota Supreme Court affirmed a damages judgment against employees who breached a proprietary-information-and-invention-assignment agreement through during-employment disloyalty [^solarbee-piia-enforced].

"violated the Proprietary Information Agreement and Invention Assignment by diverting customers, engaging in conflicting activities and consulting and rendering services to persons or entities marketing products to or in competition with systems or services offered by SolarBee."[^solarbee-piia-enforced]

*SolarBee* is also primary-source proof that the post-employment question remains open: the defendants raised § 9-08-06 against the agreement's post-employment restraints, and the issue dropped out only because the findings involved no post-employment conduct [^solarbee-postemployment-open].

"In their pre-trial brief, Walker and Eilers raised North Dakota’s public policy against restraints on solicitation after employment ceases, see N.D.C.C. § 9-08-06; Warner and Co. v. Solberg, 2001 ND 156 , 634 N.W.2d 65 , but they do not renew it in view of the findings that do not include post-employment conduct."[^solarbee-postemployment-open]

> [!CAUTION]
> **Drafting note.**
>
> Because N.D.C.C. § 9-08-06 voids a covered restraint outright — severing it as void to that extent rather than rewriting it to a reasonable scope — tether any trailing-assignment clause to inventions conceived or reduced to practice during employment, or derived from the employer's trade secrets or confidential information, and keep any post-employment tail short and narrow. An untethered holdover that sweeps in a former employee's future inventions functions as a de facto non-compete and risks being struck entirely, and no North Dakota court will preserve a less burdensome version of it for you [^nd-9-08-06-void-practice][^warner-no-softening-practice].

> [!NOTE]
> **Practice note.**
>
> Do not plan on evading North Dakota's restraint statute with a foreign choice-of-law or forum-selection clause in the invention-assignment agreement. In *Osborne v. Brown & Saenger, Inc.*, the North Dakota Supreme Court held a forum-selection clause in an employment agreement unenforceable because it would have circumvented the strong public policy behind N.D.C.C. § 9-08-06 — so a multistate employer that papers a North Dakota employee on another state's law should still expect the holdover analysis above to apply [^osborne-anti-evasion-practice].


[^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org). Last reviewed 2026-07-02. License: CC BY 4.0. Steven Obiajulu, J.D. is admitted in New York, not North Dakota. This article synthesizes North Dakota primary law and is not legal advice from a North Dakota-admitted attorney. This article is for informational purposes only and does not create an attorney-client relationship. CC BY 4.0. Cite as Steven Obiajulu, *Employee Invention Assignment in North Dakota*, OpenAgreements (last updated July 2, 2026), https://openagreements.org/practice-guides/invention-assignment/us/north-dakota.

[^nd-34-02-11-employer-acquisition]: **N.D. Cent. Code § 34-02-11** — "Everything which an employee acquires by virtue of the employee's employment, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment, except any compensation which is due the employee from the employee's employer, belongs to the employer." *N.D. Cent. Code § 34-02-11.* <https://ndlegis.gov/cencode/t34c02.pdf>

[^keller-patent-application]: **Keller v. Clark Equipment Co.** — "Melroe would have been the exclusive owner of the 117 patent under N.D.Cent.Code § 34-02-11." *Keller v. Clark Equipment Co., 715 F.2d 1280 (8th Cir. 1983), cert. denied, 464 U.S. 1044 (1984).* <https://www.courtlistener.com/opinion/423972/louis-j-keller-and-cyril-n-keller-v-clark-equipment-company-and-clark/#:~:text=Melroe%20would%20have%20been%20the,patent%20under%20N.D.Cent.Code%20%C2%A7%2034%2D02%2D11.>

[^berdahl-adopts-keller-q1]: **First American Bank West v. Berdahl** — "Following the Keller interpretation of N.D.C.C. § 34-02-11, we conclude, absent an agreement to the contrary, the commissions earned by Berdahl belonged to the Bank." *First American Bank West v. Berdahl, 556 N.W.2d 63 (N.D. 1996).* <https://www.courtlistener.com/opinion/895707/first-american-bank-west-v-berdahl/#:~:text=Following%20the%20Keller%20interpretation%20of,Berdahl%20belonged%20to%20the%20Bank.>

[^nd-47-07-04-products-of-the-mind]: **N.D. Cent. Code § 47-07-04** — "The author of any product of the mind, whether it is an invention, a composition in letters or art, a design, with or without delineation or other graphical representation, has an exclusive ownership therein and in the representation or expression thereof which continues as long as the product and the representations or expressions thereof made by the author remain in the author's possession." *N.D. Cent. Code § 47-07-04.* <https://ndlegis.gov/cencode/t47c07.pdf>

[^nd-34-02-11-no-notice]: **N.D. Cent. Code § 34-02-11** — "Everything which an employee acquires by virtue of the employee's employment, whether acquired lawfully or unlawfully or during or after the expiration of the term of the employee's employment, except any compensation which is due the employee from the employee's employer, belongs to the employer." *N.D. Cent. Code § 34-02-11.* <https://ndlegis.gov/cencode/t34c02.pdf>

[^nd-34-02-12-accounting]: **N.D. Cent. Code § 34-02-12** — "An employee, upon demand, shall render to the employee's employer just accounts of all the employee's transactions in the course of the employee's service as often as may be reasonable, and the employee shall give, without demand, prompt notice to the employee's employer of everything which the employee receives for the employer's account." *N.D. Cent. Code § 34-02-12.* <https://ndlegis.gov/cencode/t34c02.pdf>

[^keller-prevailing-view]: **Keller v. Clark Equipment Co.** — "Although there are no cases construing this North Dakota law, the prevailing view in the United States is that when a person is employed for the purpose of inventing, and he or she succeeds in that task during the period of employment, the employer is the equitable owner of the invention and the employee must assign to the employer any patent he or she may obtain on the invention." *Keller v. Clark Equipment Co., 715 F.2d 1280 (8th Cir. 1983), cert. denied, 464 U.S. 1044 (1984).* <https://www.courtlistener.com/opinion/423972/louis-j-keller-and-cyril-n-keller-v-clark-equipment-company-and-clark/#:~:text=Although%20there%20are%20no%20cases,may%20obtain%20on%20the%20invention.>

[^berdahl-adopts-keller]: **First American Bank West v. Berdahl** — "Following the Keller interpretation of N.D.C.C. § 34-02-11, we conclude, absent an agreement to the contrary, the commissions earned by Berdahl belonged to the Bank." *First American Bank West v. Berdahl, 556 N.W.2d 63 (N.D. 1996).* <https://www.courtlistener.com/opinion/895707/first-american-bank-west-v-berdahl/#:~:text=Following%20the%20Keller%20interpretation%20of,Berdahl%20belonged%20to%20the%20Bank.>

[^stanford-inventor-baseline]: **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).* <https://www.courtlistener.com/opinion/218133/board-of-trustees-of-the-leland-stanford-junior-university-v-roche/#:~:text=Since%201790%2C%20the%20patent%20law,invention%20belong%20to%20the%20inventor.>

[^keller-hired-for-inventive-abilities]: **Keller v. Clark Equipment Co.** — "The district court found that Louis Keller was hired for his inventive abilities." *Keller v. Clark Equipment Co., 715 F.2d 1280 (8th Cir. 1983), cert. denied, 464 U.S. 1044 (1984).* <https://www.courtlistener.com/opinion/423972/louis-j-keller-and-cyril-n-keller-v-clark-equipment-company-and-clark/#:~:text=The%20district%20court%20found%20that%20Louis,hired%20for%20his%20inventive%20abilities.>

[^dubilier-hired-to-invent]: **United States v. Dubilier Condenser Corp.** — "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." *United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).* <https://www.courtlistener.com/opinion/1087847/united-states-v-dubilier-condenser-corp/#:~:text=One%20employed%20to%20make%20an,his%20employer%20any%20patent%20obtained.>

[^nd-9-08-06-restraint-void]: **N.D. Cent. Code § 9-08-06** — "A contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:" *N.D. Cent. Code § 9-08-06.* <https://ndlegis.gov/cencode/t09c08.pdf>

[^warner-no-ambiguity]: **Warner and Co. v. Solberg** — "We see no ambiguity in N.D.C.C. § 9-08-06." *Warner and Co. v. Solberg, 2001 ND 156, 634 N.W.2d 65.* <https://www.courtlistener.com/opinion/896854/warner-co-v-solberg/#:~:text=We%20see%20no%20ambiguity%20in%20N.D.C.C.%20%C2%A7%209%2D08%2D06.>

[^warner-declines-california]: **Warner and Co. v. Solberg** — "Because of the plain language of the statute, the history of legislation in North Dakota concerning this issue, and because North Dakota has enacted trade-secrets legislation, we decline to do so." *Warner and Co. v. Solberg, 2001 ND 156, 634 N.W.2d 65.* <https://www.courtlistener.com/opinion/896854/warner-co-v-solberg/#:~:text=Because%20of%20the%20plain%20language,we%20decline%20to%20do%20so.>

[^osborne-strong-public-policy]: **Osborne v. Brown & Saenger, Inc.** — "Thus, we conclude that North Dakota has a strong public policy against non-compete agreements." *Osborne v. Brown & Saenger, Inc., 2017 ND 288, 904 N.W.2d 34.* <https://www.courtlistener.com/opinion/4449595/osborne-v-brown-saenger-inc/#:~:text=Thus%2C%20we%20conclude%20that%20North,public%20policy%20against%20non%2Dcompete%20agreements.>

[^solarbee-piia-enforced]: **SolarBee, Inc. v. Walker** — "violated the Proprietary Information Agreement and Invention Assignment by diverting customers, engaging in conflicting activities and consulting and rendering services to persons or entities marketing products to or in competition with systems or services offered by SolarBee." *SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422.* <https://www.courtlistener.com/opinion/931224/solarbee-inc-v-walker/#:~:text=violated%20the%20Proprietary%20Information%20Agreement,or%20services%20offered%20by%20SolarBee.>

[^solarbee-postemployment-open]: **SolarBee, Inc. v. Walker** — "In their pre-trial brief, Walker and Eilers raised North Dakota’s public policy against restraints on solicitation after employment ceases, see N.D.C.C. § 9-08-06; Warner and Co. v. Solberg, 2001 ND 156 , 634 N.W.2d 65 , but they do not renew it in view of the findings that do not include post-employment conduct." *SolarBee, Inc. v. Walker, 2013 ND 110, 833 N.W.2d 422.* <https://www.courtlistener.com/opinion/931224/solarbee-inc-v-walker/#:~:text=In%20their%20pre%2Dtrial%20brief%2C%20Walker,do%20not%20include%20post%2Demployment%20conduct.>

[^nd-9-08-06-void-practice]: **N.D. Cent. Code § 9-08-06** — "A contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:" *N.D. Cent. Code § 9-08-06.* <https://ndlegis.gov/cencode/t09c08.pdf>

[^warner-no-softening-practice]: **Warner and Co. v. Solberg** — "Because of the plain language of the statute, the history of legislation in North Dakota concerning this issue, and because North Dakota has enacted trade-secrets legislation, we decline to do so." *Warner and Co. v. Solberg, 2001 ND 156, 634 N.W.2d 65.* <https://www.courtlistener.com/opinion/896854/warner-co-v-solberg/#:~:text=Because%20of%20the%20plain%20language,we%20decline%20to%20do%20so.>

[^osborne-anti-evasion-practice]: **Osborne v. Brown & Saenger, Inc.** — "the forum-selection clause in the parties’ employment agreement violates North Dakota’s public policy against non-compete agreements. The non-compete clause is unenforceable under N.D.C.C. § 9-08-06 to the extent it limits Osborne from exercising a lawful profession, trade, or business in North Dakota." *Osborne v. Brown & Saenger, Inc., 2017 ND 288, 904 N.W.2d 34.* <https://www.courtlistener.com/opinion/4449595/osborne-v-brown-saenger-inc/#:~:text=the%20forum%2Dselection%20clause%20in%20the,or%20business%20in%20North%20Dakota.>