# Employee Invention Assignment in South Carolina[^about] South Carolina has no employee-invention-assignment statute, but it is one of the few states with a direct holding on trailing clauses — in Milliken & Co. v. Morin the South Carolina Supreme Court held that invention-assignment and confidentiality clauses are not restraints of trade and are not strictly construed in favor of the employee, and it upheld a one-year post-employment holdover clause as eminently reasonable. Absent a written assignment the inventor owns unless hired to invent, and a clause broad enough to function as a noncompete falls back into the strict common-law covenant regime, where South Carolina courts refuse to blue-pencil. ## Can a South Carolina employer require assignment of every invention? {#statutory-carve-out} **Short answer.** There is no statutory ceiling, and — unusually — there is a direct state-supreme-court answer on what governs instead. South Carolina has no employee-invention-assignment statute of any kind, so nothing like a California-style own-time carve-out limits what an assignment clause may reach. In *Milliken & Co. v. Morin*, the South Carolina Supreme Court held that invention-assignment and confidentiality clauses are not restraints of trade and are not strictly construed in favor of the employee; they are tested under a general reasonableness standard [^milliken-clauses-not-restraints][^milliken-vests-ownership]. The statutory silence is complete. A full-text search of the South Carolina Code of Laws returns no match for the word invention anywhere in the code, and the chapter indexes of Title 41 (Labor and Employment) and Title 39 (Trade and Commerce) contain no provision regulating employment invention-assignment clauses. South Carolina also has no general employment noncompete statute — its restrictive-covenant law is entirely common law. That common-law backdrop is strict. South Carolina courts treat covenants not to compete with disfavor and construe them against the employer [^rental-uniform-strict-construction]. "Restrictive covenants not to compete are generally disfavored and will be strictly construed against the employer."[^rental-uniform-strict-construction] *Milliken & Co. v. Morin* expressly pulled invention-assignment and confidentiality clauses out of that regime. The court reasoned that assignment clauses do not restrain the employee's trade at all — they allocate ownership of an invention [^milliken-vests-ownership]. "Thus, they do not operate in restraint of the employee’s trade but merely vest ownership of an invention with the entity which ought to have it."[^milliken-vests-ownership] The holding is explicit and is the controlling South Carolina rule [^milliken-clauses-not-restraints]. "We therefore hold confidentiality and invention assignment clauses are not in restraint of trade and should not be strictly construed in favor of the employee."[^milliken-clauses-not-restraints] The nearest IP-adjacent statute is the South Carolina Trade Secrets Act, and it points the same direction rather than limiting assignment clauses. Section 39-8-30(B) imposes a nondisclosure duty on every employee who knows of an employer's trade secret, "independently of and in addition to any written contract of employment"[^scutsa-trade-secret-duty] — a statutory secrecy floor, not a ceiling on what the contract may capture [^scutsa-trade-secret-duty]. The practical consequence is that a South Carolina employer can contract for assignment more broadly than an employer in a carve-out state, and it does so under a friendlier standard of review than a noncompete would get. But the breadth is not unlimited: the clause must still be reasonable on its face, and a clause drafted so broadly that it restrains the employee's ability to work is treated as a noncompete and tested under the strict regime — a limit discussed with the holdover question below. ## Must a South Carolina employer notify the employee? {#employee-notice} **Short answer.** Not applicable. Because South Carolina 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 notice paragraph that appears in the leading South Carolina case was a term of the contract itself — a voluntary narrowing device, not a statutory prerequisite [^milliken-contract-notice]. There is nothing to give notice of. Notice requirements exist in carve-out states precisely to alert the employee to a statutory own-time exclusion that limits the assignment; South Carolina has enacted no such exclusion, 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 carve-out that South Carolina does not have. The distinction matters because the agreement in *Milliken & Co. v. Morin* did contain a notice. Milliken's associate agreement carried a NOTICE paragraph telling the employee that the assignment "does not apply to an Invention for which no equipment, supplies, facility or proprietary information of Milliken was used and which was developed entirely on your own time"[^milliken-contract-notice], absent a relation to Milliken's business or research or a connection to the employee's work [^milliken-contract-notice]. That paragraph mirrors the shape of the statutory notices used in carve-out states, but in South Carolina it was purely contractual — the employer chose to narrow its own clause, and that narrowness helped the clause survive reasonableness review. For a multistate employer the takeaway is double-edged. A South Carolina employer neither has to give a § 2872-style notice nor can point to one as a statutory safe harbor. But a contractual own-time carve-out of the *Milliken* type is exactly the kind of self-imposed limit that makes an assignment clause look reasonable to a South Carolina court, so dropping the notice language from a multistate form gains little and gives up real protection. ## Who owns an invention by default in South Carolina? {#default-ownership} **Short answer.** The inventor, unless hired to invent. No South Carolina statute addresses default invention ownership, and no South Carolina appellate decision found in our review articulates the hired-to-invent or shop-right doctrines — so the default comes from the federal common-law baseline: rights in an invention belong to the employee who conceived it, with a narrow exception for the employee hired to invent [^stanford-inventor][^dubilier-hired-to-invent]. *Stanford v. Roche* anchors the default. The Supreme Court held that even 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 is 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 [^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] The principal exception is the employee hired to invent. Under *United States v. Dubilier Condenser Corp.*, an employee engaged to make a particular invention who succeeds during the term of service must assign the resulting patent to the employer [^dubilier-hired-to-invent]. Short of that, an employee who used the employer's time, tools, and materials to reach a concrete result gives the employer at most an equitable shop right — a non-exclusive license, not ownership. South Carolina's own leading case does not change this picture, because it is contract-clause authority rather than default-ownership authority: *Milliken & Co. v. Morin* decided how an express assignment and holdover clause is reviewed, not who owns absent a contract. Its facts do, however, show what dependable South Carolina drafting looks like. The Milliken clause used present-assignment wording — the employee agreed to "Assign (and I do hereby assign) to Milliken all of my rights to such Inventions"[^milliken-present-assignment] — so title passed automatically rather than resting on a future promise to assign [^milliken-present-assignment]. Because South Carolina has no statute filling the gap, a written present-assignment (*hereby assign*) clause remains the only reliable path to employer ownership. ## Are trailing-assignment (holdover) clauses enforceable in South Carolina? {#holdover-clause-limit} **Short answer.** Yes, when reasonable — and South Carolina is one of the few states where that answer rests on a direct holding rather than analogy. In *Milliken & Co. v. Morin*, the South Carolina Supreme Court upheld a clause assigning inventions conceived within one year after termination, calling the one-year holdover eminently reasonable, and reviewed it under a general reasonableness standard rather than strict noncompete scrutiny [^milliken-holdover-reasonable][^milliken-reasonableness-balance]. The limit is functional: a trailing clause broad enough to operate as a noncompete is tested as one, and South Carolina courts will not blue-pencil it [^fay-functional-noncompete][^poynter-no-blue-pencil]. *Milliken* is the rare case that decides the holdover question on its facts. The agreement reached inventions conceived during employment or within one year after termination, but only those relating to Milliken's business or its actual or anticipated research, or resulting from the employee's work — and it excluded own-time, no-employer-resources inventions through the contractual notice discussed above. Against that narrow scope, the court's assessment was emphatic [^milliken-holdover-reasonable]. "Moreover, the one-year holdover provision is eminently reasonable."[^milliken-holdover-reasonable] The court framed the governing inquiry as a balance rather than a presumption of invalidity, explaining that "these agreements are designed to strike an appropriate balance between protecting an employer’s valuable interest in its proprietary information and permitting an employee to find gainful employment in his chosen field."[^milliken-reasonableness-balance] To see how favorable that standard is, compare the regime *Milliken* displaced. For a true covenant not to compete, South Carolina applies a demanding multi-factor test — *Rental Uniform Serv. of Florence, Inc. v. Dudley*, restating the test from *Sermons v. Caine & Estes Insurance Agency*, ties enforceability to necessity, time-and-place limits, hardship, public policy, and consideration [^rental-uniform-five-factor-head][^rental-uniform-five-factor-tail]: "An agreement’s enforceability depends on whether it is necessary for the protection of the legitimate interest of the employer, is reasonably limited in its operation with respect to time and place, is not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood, is reasonable from the standpoint of"[^rental-uniform-five-factor-head] "sound public policy, and is supported by a valuable consideration."[^rental-uniform-five-factor-tail] And a covenant that fails any part of that test falls entirely, because South Carolina refuses to rewrite overbroad restrictions [^poynter-no-blue-pencil]. "These cases stand for the proposition that, in South Carolina, the restrictions in a non-compete clause cannot be rewritten by a court or limited by the parties’ agreement, but must stand or fall on their own terms."[^poynter-no-blue-pencil] The functional limit on *Milliken* is real. In *Fay v. Total Quality Logistics, LLC*, the Court of Appeals reversed summary judgment for the employer because nondisclosure provisions with no time limit "operated as noncompete provisions and did not contain a reasonable time restriction, which violated the public policy of South Carolina"[^fay-functional-noncompete] — pulling them out of the *Milliken* safe zone and back into the strict covenant regime [^fay-functional-noncompete]. A trailing-assignment clause drafted so broadly that it restrains an ex-employee's ability to work in the field runs the same reclassification risk, and once reclassified it cannot be saved by narrowing. The unsettled frontier is everything beyond the *Milliken* facts. The court blessed one year, tied to a business-or-work nexus, with a contractual own-time carve-out. No South Carolina decision found in our review approves a longer holdover period, a trailing clause without a carve-out, or a clause keyed to the employer's industry generally rather than the employee's actual work — so one year with a tight nexus is the supported safe harbor, and anything broader is untested rather than approved. > [!CAUTION] > **Drafting note.** > > *Milliken & Co. v. Morin* is a green light for a modest holdover clause, not a broad one. The clause the South Carolina Supreme Court upheld trailed only one year past termination, reached only inventions tied to the employer's business, research, or the employee's own work, and carried a contractual notice excluding inventions developed entirely on the employee's own time without employer resources [^milliken-contract-notice-practice]. Draft to that shape: keep the trailing period at one year, tie it to the employee's actual work and the employer's proprietary information, keep an own-time carve-out even though no statute requires one, and use present-assignment (*hereby assign*) wording so title passes automatically [^milliken-present-assignment-practice]. A trailing clause broad enough to restrain an ex-employee's ordinary employment is tested as a noncompete [^fay-functional-noncompete], and because South Carolina courts will not rewrite an overbroad restriction, it falls in its entirety rather than being trimmed to a lawful scope [^poynter-no-blue-pencil]. [^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 South Carolina. This article synthesizes South Carolina primary law and is not legal advice from a South Carolina-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 South Carolina*, OpenAgreements (last updated July 2, 2026), https://openagreements.org/practice-guides/invention-assignment/us/south-carolina. [^milliken-clauses-not-restraints]: **Milliken & Co. v. Morin** — "We therefore hold confidentiality and invention assignment clauses are not in restraint of trade and should not be strictly construed in favor of the employee." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^milliken-vests-ownership]: **Milliken & Co. v. Morin** — "Thus, they do not operate in restraint of the employee’s trade but merely vest ownership of an invention with the entity which ought to have it." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^rental-uniform-strict-construction]: **Rental Uniform Serv. of Florence, Inc. v. Dudley** — "Restrictive covenants not to compete are generally disfavored and will be strictly construed against the employer." *Rental Uniform Serv. of Florence, Inc. v. Dudley, 278 S.C. 674, 301 S.E.2d 142 (S.C. 1983).* [^scutsa-trade-secret-duty]: **South Carolina Trade Secrets Act, S.C. Code Ann. § 39-8-30(B)** — "Every employee who is informed of or should reasonably have known from the circumstances of the existence of any employer's trade secret has a duty to refrain from using or disclosing the trade secret without the employer's permission independently of and in addition to any written contract of employment, secrecy agreement, noncompete agreement, nondisclosure agreement, or other agreement between the employer and the employee." *S.C. Code Ann. § 39-8-30(B).* [^milliken-contract-notice]: **Milliken & Co. v. Morin** — "This is to notify you that paragraph A of this Milliken ‘Associate Agreement’ you are being asked to sign as a condition of your employment does not apply to an Invention for which no equipment, supplies, facility or proprietary information of Milliken was used and which was developed entirely on your own time, and (1) which does not relate (a) directly to the business of Milliken or (b) to Milliken’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by you for Milliken." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^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).* [^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).* [^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).* [^milliken-present-assignment]: **Milliken & Co. v. Morin** — "Assign (and I do hereby assign) to Milliken all of my rights to such Inventions, and to applications for letters patent, copyright registrations and/or mask work registrations in all countries and to letters patent, copyright registrations and/or mask work registrations granted upon such Inventions in all countries." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^milliken-holdover-reasonable]: **Milliken & Co. v. Morin** — "Moreover, the one-year holdover provision is eminently reasonable." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^milliken-reasonableness-balance]: **Milliken & Co. v. Morin** — "these agreements are designed to strike an appropriate balance between protecting an employer’s valuable interest in its proprietary information and permitting an employee to find gainful employment in his chosen field." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^fay-functional-noncompete]: **Fay v. Total Quality Logistics, LLC** — "We agree with Fay and reverse the circuit court’s grant of summary judgment to TQL because the nondisclosure provisions operated as noncompete provisions and did not contain a reasonable time restriction, which violated the public policy of South Carolina." *Fay v. Total Quality Logistics, LLC, 419 S.C. 622, 799 S.E.2d 318 (S.C. Ct. App. 2017).* [^poynter-no-blue-pencil]: **Poynter Investments, Inc. v. Century Builders of Piedmont, Inc.** — "These cases stand for the proposition that, in South Carolina, the restrictions in a non-compete clause cannot be rewritten by a court or limited by the parties’ agreement, but must stand or fall on their own terms." *Poynter Invs., Inc. v. Century Builders of Piedmont, Inc., 387 S.C. 583, 694 S.E.2d 15 (S.C. 2010).* [^rental-uniform-five-factor-head]: **Rental Uniform Serv. of Florence, Inc. v. Dudley** — "An agreement’s enforceability depends on whether it is necessary for the protection of the legitimate interest of the employer, is reasonably limited in its operation with respect to time and place, is not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood, is reasonable from the standpoint of" *Rental Uniform Serv. of Florence, Inc. v. Dudley, 278 S.C. 674, 301 S.E.2d 142 (S.C. 1983).* [^rental-uniform-five-factor-tail]: **Rental Uniform Serv. of Florence, Inc. v. Dudley** — "sound public policy, and is supported by a valuable consideration." *Rental Uniform Serv. of Florence, Inc. v. Dudley, 278 S.C. 674, 301 S.E.2d 142 (S.C. 1983).* [^milliken-contract-notice-practice]: **Milliken & Co. v. Morin** — "This is to notify you that paragraph A of this Milliken ‘Associate Agreement’ you are being asked to sign as a condition of your employment does not apply to an Invention for which no equipment, supplies, facility or proprietary information of Milliken was used and which was developed entirely on your own time, and (1) which does not relate (a) directly to the business of Milliken or (b) to Milliken’s actual or demonstrably anticipated research or development, or (2) which does not result from any work performed by you for Milliken." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).* [^milliken-present-assignment-practice]: **Milliken & Co. v. Morin** — "Assign (and I do hereby assign) to Milliken all of my rights to such Inventions, and to applications for letters patent, copyright registrations and/or mask work registrations in all countries and to letters patent, copyright registrations and/or mask work registrations granted upon such Inventions in all countries." *Milliken & Co. v. Morin, 399 S.C. 23, 731 S.E.2d 288 (S.C. 2012).*