Can a U.S. Virgin Islands employer require assignment of every invention?
There is no statutory ceiling — and no local statute at all. The U.S. Virgin Islands has no employee-invention-assignment statute: no California Labor Code § 2870 analogue, no employer-ownership provision, and no notice requirement. An assignment clause's reach is therefore bounded only by ordinary contract law, the federal patent and copyright overlay, and the common-law rules a Virgin Islands court would select for itself under the territory's post-2011 methodology for choosing its common law. On a touch screen, a tap shows all 2 sources in this group.
The statutory silence is broad. A search of the Virgin Islands Code — including Title 24 (Labor) and Title 11 (Commerce and Trade) — surfaces no invention-assignment, employee-invention-ownership, or carve-out provision of any kind. The nearest neighbors are the territory's Uniform Trade Secrets Act (11 V.I.C. §§ 1001–1010), which supplies the trade-secret backdrop for the confidentiality side of an invention-assignment agreement, and the reception statute discussed below. One currency caveat belongs on the record: the freely searchable compilation of the Virgin Islands Code is a 2019 snapshot, and the official current code is hosted on LexisNexis, so the no-statute conclusion is as of our review date — though nothing in our review suggests any post-2019 enactment on this subject.
What makes the territory unusual is where its common law comes from. For most of the territory's history, 1 V.I.C. § 4 directed Virgin Islands courts to the Restatements as the default rules of decision .
That regime ended with Banks v. International Rental & Leasing Corp., in which the Supreme Court of the Virgin Islands held that the reception statute does not force mechanical adherence to the Restatements .
In Government of the Virgin Islands v. Connor, the same court restated the working methodology that replaced automatic Restatement reception .
The factor list predates Connor. In Matthew v. Herman (2012), the court described the three non-dispositive factors it had used to decide whether to adopt a Restatement approach . In Simon v. Joseph (2013), it stated the same three factors, in the same words, as its method for choosing a common-law rule .
Connor also confirmed that the old reception statute no longer controls at all, tracing its demise to the 2004 statute that established the modern territorial judiciary .
“the Legislature implicitly repealed 1 V.I.C. § 4 through its adoption of 4 V.I.C. § 21 in 2004.”
The practical consequence is that a Virgin Islands employer can, in principle, contract for assignment more broadly than a California or Washington employer, because no statute carves out own-time inventions from the reach of the clause. But the outer limits are genuinely untested: no Virgin Islands court found in our review has ever construed an employee invention-assignment clause, so any statement about how far such a clause can reach is a prediction about which common-law rule the territory's courts would adopt under the Banks factors, not a report of settled local doctrine.
Sources for this answer
1 V.I.C. § 4 historically made the common law as expressed in the Restatements the rules of decision in Virgin Islands courts absent local law to the contrary — the reception backdrop against which the Banks methodology now operates, and the closest thing the territory has to a statute bearing on employee inventions.
The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.
See 1 V.I.C. § 4.
Banks v. International Rental & Leasing Corp. holds that 1 V.I.C. § 4 does not compel Virgin Islands courts to mechanically apply the most recent Restatement — so with no invention-assignment statute, the rules governing an assignment clause are whatever common law the territory's courts select for themselves.
We conclude that the Legislature did not intend for section 4 of title 1 to compel this Court to mechanically apply the most recent Restatement.
See Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011).
Government of the Virgin Islands v. Connor restates the three non-dispositive Banks factors — prior V.I. adoption, the majority position elsewhere, and the soundest rule for the Virgin Islands — by which Virgin Islands courts now determine their common law.
courts should consider “three non-dispositive factors” to determine Virgin Islands common law: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.”
See Gov't of the V.I. v. Connor, 60 V.I. 597 (V.I. 2014).
Matthew v. Herman describes the three non-dispositive factors the Supreme Court of the Virgin Islands used to decide whether to adopt a Restatement approach after concluding that 1 V.I.C. § 4 does not compel mechanical application of the Restatements.
With that in mind, we then considered three non-dispositive factors to guide us in our determination of whether we should adopt the Restatement approach.
See Matthew v. Herman, 56 V.I. 674 (V.I. 2012).
Simon v. Joseph states that, in determining which common-law rule to adopt, the Supreme Court of the Virgin Islands considers three non-dispositive factors: prior Virgin Islands adoption, the majority position elsewhere, and, most importantly, the soundest rule for the Virgin Islands (citing Matthew v. Herman, 56 V.I. at 680-81).
In doing so, this Court considers three non-dispositive factors: (1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.
See Simon v. Joseph, 59 V.I. 611 (V.I. 2013).
Government of the Virgin Islands v. Connor confirms that the Legislature implicitly repealed the 1 V.I.C. § 4 reception statute through its 2004 adoption of 4 V.I.C. § 21 — so automatic Restatement reception no longer supplies the rules governing an assignment clause.
the Legislature implicitly repealed 1 V.I.C. § 4 through its adoption of 4 V.I.C. § 21 in 2004.
See Gov't of the V.I. v. Connor, 60 V.I. 597 (V.I. 2014).
Must a U.S. Virgin Islands employer notify the employee?
Not applicable. Because the U.S. Virgin Islands 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). Any disclosure or assignment duty arises from the terms of the agreement itself and from whatever common-law rule a Virgin Islands court would select under the Banks methodology .
There is nothing to give notice of. A notice requirement exists in California and Washington precisely to alert the employee to a statutory own-time carve-out that limits the assignment; the Virgin Islands has enacted no such carve-out, so there is no statutory line for a notice to mark. That is why the entry is marked not applicable rather than a bare no: the question presupposes a statutory carve-out that the territory does not have.
Nor is there any Restatement-derived notice formality waiting in the background. Since Banks, Virgin Islands courts choose their common-law rules through the three-factor analysis rather than by automatic Restatement reception, and no Virgin Islands decision found in our review has imposed — or even considered — a notice or disclosure formality for invention-assignment agreements .
For a multistate employer the takeaway is the inverse of the notice states: a Virgin Islands employer neither has to give a § 2872-style notice nor can rely on one to cure an overbroad clause. The enforceability of the assignment turns entirely on the contract language and on the common-law limits a Virgin Islands court would adopt, not on any statutory notice or disclosure formality.
Sources for this answer
Banks v. International Rental & Leasing Corp. establishes that Virgin Islands common law is selected by the territory's courts rather than imposed by automatic Restatement reception — so with no statute and no adopting decision, no notice or disclosure formality currently conditions an invention-assignment agreement.
We conclude that the Legislature did not intend for section 4 of title 1 to compel this Court to mechanically apply the most recent Restatement.
See Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011).
Who owns an invention by default in the U.S. Virgin Islands?
Most likely the inventor, unless hired to invent — but in the Virgin Islands that is a prediction, not settled local doctrine. No Virgin Islands decision found in our review addresses employee-invention ownership at all, so a court facing the question would select a rule through the Banks three-factor analysis, and the rule it would almost certainly select is the federal and majority baseline: rights belong to the employee who conceived the invention, the employer may claim an invention only from an employee hired to invent, and use of the employer's time and materials yields at most a shop right. On a touch screen, a tap shows all 2 sources in this group.
Stanford v. Roche anchors the baseline. 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 starting point against which any assignment is 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 .
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 .
The most analogous in-circuit authority is Ingle v. Landis Tool Co., a 1921 decision of the Third Circuit — the circuit whose federal courts hear Virgin Islands appeals. Describing and adhering to the rule it had settled in an earlier Third Circuit decision, the court framed the condition on which the default turns .
“in the absence of an express contract or agreement to invent,”
On that condition, the court explained, the employment relation standing alone gave the employer no title to the employee's invention .
Applying that rule, the court held that the employee draughtsman kept title to his invention because he had never promised to invent .
Ingle is federal patent-era case law, not Virgin Islands common law, and it predates the modern territorial court system — it is persuasive, not binding, on a Virgin Islands court. The prediction is strong; it is still a prediction, and the dependable path for an employer is a written present-assignment (hereby assigns) clause that transfers title automatically on conception rather than leaving ownership to an untested default.
Sources for this answer
Stanford v. Roche confirms the long-standing premise of U.S. patent law that rights in an invention belong to the inventor — the baseline a Virgin Islands court would apply absent a written assignment.
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).
Stanford 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).
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 to the inventor-owns default.
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).
Ingle v. Landis Tool Co., adhering to Pressed Steel Car Co. v. Hansen, conditions the employer's lack of title on the absence of an express contract or agreement to invent — the in-circuit statement of the trigger for the default rule.
in the absence of an express contract or agreement to invent,
See Ingle v. Landis Tool Co., 272 F. 464 (3d Cir. 1921).
Ingle v. Landis Tool Co. states the Third Circuit rule that the employment relation alone does not vest the employer with the property right in an employee's invention or the patent monopoly — the employer takes at most a shop right to use the invention.
did not vest the employer with the entire property right of an invention of the employee, and to the patent monopoly thereof, or to anything more than a shop right to use such invention.
See Ingle v. Landis Tool Co., 272 F. 464 (3d Cir. 1921).
Ingle v. Landis Tool Co. applies the default rule to hold that an employee who never contracted to invent kept title to his invention, placing the case within the principle of Pressed Steel Car Co. v. Hansen.
There was no contract on Carey’s part to invent, and consequently the case, as we have said, falls within the principle of Pressed Steel Car Company v. Hansen, supra.
See Ingle v. Landis Tool Co., 272 F. 464 (3d Cir. 1921).
Are trailing-assignment (holdover) clauses enforceable in the U.S. Virgin Islands?
Unsettled. No Virgin Islands decision found in our review addresses a trailing or holdover invention-assignment clause, and there is no statutory temporal cap because there is no invention-assignment statute at all. What the territory does supply is trial-level restrictive-covenant law testing post-employment restraints for reasonableness — one decision striking an overbroad covenant and one enforcing a reasonable one — and a court would most likely test a holdover clause the same way by analogy. But that is an analogy to covenant law from a different doctrinal box, decided by trial courts before the territory's modern common-law methodology existed, so the holdover question remains genuinely open. On a touch screen, a tap shows all 2 sources in this group.
Two gaps define the Virgin Islands picture. First, there is no statute: nothing caps the duration of a post-employment trailing assignment or otherwise limits what such a clause may reach. Second, there is no case: our review found no Virgin Islands decision applying any standard to an invention-holdover clause, so even the choice of framework is a prediction.
The closest local law is restrictive-covenant doctrine. In Virgin Islands Diving Schools/Supplies, Inc. v. Dixon, the Territorial Court — a trial court — struck a tiered, island-wide non-compete and non-disclosure package as an unreasonable restraint under the Restatement (Second) of Contracts § 188 framework, stressing that the employer had no trade secrets or unique services to protect. The opinion places restraints on employment under a disfavoring presumption .
“it is also equally true that the law disfavors agreements which restrain employment.”
Weighing the covenant's breadth against the employer's actual protectable interest, the Dixon court concluded the restraint could not stand — and struck it rather than trimming it .
The counterpoint is Williamson v. Hess, in which the same court — again at trial level — enforced a three-year veterinary non-compete limited to St. Thomas and St. John, applying a multi-factor reasonableness test in which the territory's small-island geography figured on both sides of the analysis .
Three limits on the analogy keep this cell at unsettled rather than a reasonableness rule. First, both decisions are trial-level: the Supreme Court of the Virgin Islands, established in 2007, has never ruled on restrictive covenants, let alone on invention assignments. Second, both predate Banks , so a court today could re-run the full three-factor analysis rather than simply following them — although under the first Connor factor they would count as prior Virgin Islands adoption of a reasonableness approach to post-employment restraints . Third, a trailing assignment is not a non-compete; extending covenant reasonableness to a clause that assigns post-employment inventions is a bare analogy that no Virgin Islands court has drawn. Reformation is equally open: no Virgin Islands authority found in our review says whether an overbroad clause would be narrowed or simply struck, and the one on-point covenant precedent struck the restraint entirely .
Sources for this answer
Virgin Islands Diving Schools/Supplies, Inc. v. Dixon — a trial-level Territorial Court decision — states that Virgin Islands law disfavors agreements which restrain employment, the presumption a holdover assignment clause operating as a post-employment restraint would face by analogy.
it is also equally true that the law disfavors agreements which restrain employment.
See Virgin Islands Diving Schools/Supplies, Inc. v. Dixon, Civil No. 1046/1982 (V.I. Terr. Ct. Oct. 19, 1983).
Virgin Islands Diving Schools/Supplies, Inc. v. Dixon concludes that a restraint broader than needed to protect the employer's legitimate business interest fails — and the court struck the covenant rather than narrowing it, leaving reformation practice unaddressed in the territory.
The sum total of all these factors leads the Court to conclude that the restraint involved here is greater than is needed to protect the Plaintiff's legitimate business interest.
See Virgin Islands Diving Schools/Supplies, Inc. v. Dixon, Civil No. 1046/1982 (V.I. Terr. Ct. Oct. 19, 1983).
Williamson v. Hess — a trial-level Territorial Court decision enforcing a reasonable covenant — applies a five-pronged reasonableness test measured by the circumstances and context in which enforcement is sought, the fact-driven framework a holdover clause would most likely face by analogy.
And this five-pronged test of reasonableness must be measured by the circumstances and context in which enforcement is sought.
See Williamson v. Hess, 16 V.I. 284 (V.I. Terr. Ct. 1979).
Government of the Virgin Islands v. Connor states the three-factor Banks analysis a Virgin Islands court would run before extending pre-Banks trial-level covenant reasonableness law to a trailing-assignment clause — prior V.I. adoption, the majority position elsewhere, and the soundest rule for the Virgin Islands.
courts should consider “three non-dispositive factors” to determine Virgin Islands common law: “(1) whether any Virgin Islands courts have previously adopted a particular rule; (2) the position taken by a majority of courts from other jurisdictions; and (3) most importantly, which approach represents the soundest rule for the Virgin Islands.”
See Gov't of the V.I. v. Connor, 60 V.I. 597 (V.I. 2014).
Banks v. International Rental & Leasing Corp. (2011) holds that 1 V.I.C. § 4 does not compel Virgin Islands courts to mechanically apply the most recent Restatement — the decision that began the territory's modern common-law methodology, which the trial-level covenant decisions predate.
We conclude that the Legislature did not intend for section 4 of title 1 to compel this Court to mechanically apply the most recent Restatement.
See Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011).
Banks v. International Rental & Leasing Corp. holds that Virgin Islands courts are not compelled to mechanically apply the most recent Restatement — so every unlitigated invention-assignment question in the territory is resolved by a court's own rule selection, not a pre-set doctrine an employer can rely on.
We conclude that the Legislature did not intend for section 4 of title 1 to compel this Court to mechanically apply the most recent Restatement.
See Banks v. Int'l Rental & Leasing Corp., 55 V.I. 967 (V.I. 2011).
Stanford 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).
Do not treat the U.S. Virgin Islands like a mainland state with settled invention-assignment doctrine — and do not treat it like a carve-out state either. There is no statute, no notice safe harbor, and no Virgin Islands decision on employee inventions, so every rule on this page short of the federal baseline is a prediction about how a court would choose its common law under the territory's rule-selection methodology . Draft with present-assignment (hereby assigns) language so title passes automatically rather than resting on a future promise, because ownership starts with the inventor and an employer's rights are only as good as the words that transfer them . Keep any trailing or holdover assignment narrow, short, and tied to the employer's confidential information and pre-departure work, because the territory's only on-point restraint law disfavors agreements which restrain employment and struck the one overbroad covenant it examined , while its reasonableness testing is context-driven and fact-intensive .
What does federal law require a confidentiality and invention assignment agreement in the U.S. Virgin Islands to say about whistleblowers and pay?
An employee confidentiality, non-compete, or invention assignment agreement signed or updated now that governs trade secrets or other confidential information must give the Defend Trade Secrets Act whistleblower-immunity notice, and for employees the National Labor Relations Act covers, Section 7 of that Act protects concerted activity, including joining together over pay and working conditions, that a broad confidentiality clause can restrict. The employer may satisfy the notice duty by cross-referencing a qualifying policy document provided to the employee, but an employer that omits the notice may not be awarded exemplary damages or attorney fees under the Defend Trade Secrets Act in an action against an employee who was not given notice.
The notice describes a federal immunity: an individual cannot be held liable under federal or state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal. For an agreement signed or updated now, the duty to give that notice reaches any agreement with an employee that governs trade secrets or other confidential information, whatever else the agreement does.
Section 7 gives employees the National Labor Relations Act covers a statutory right to engage in concerted activity for mutual aid or protection, including joining together to improve pay and working conditions. For employees the Act covers, the Board's work-rule standard adopted in 2023 makes a rule presumptively unlawful if it has a reasonable tendency to chill employees from exercising their Section 7 rights; an employer can rebut that presumption only by showing a legitimate and substantial business interest it cannot serve with a more narrowly tailored rule. The 2023 standard may change, but the Section 7 right it enforces is statutory. State law may add its own requirements for the same clauses.
A form carried over without the immunity notice, or a cross-reference to a reporting policy the employee never received, leaves the confidentiality clause without a valid notice, so the Act's exemplary damages and attorney fees are unavailable against that employee. A Confidential Information definition that sweeps in pay and working conditions with no carve-out exposes the employer to an unfair-labor-practice finding for employees the Act covers.
Sources for this answer
An individual is immune from criminal and civil liability under federal and state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— (A) is made— (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
See 18 U.S.C. § 1833(b)(1).
An employer must give notice of the trade-secret whistleblower immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
See 18 U.S.C. § 1833(b)(3)(A).
An employer complies with the notice requirement by cross-referencing a policy document, provided to the employee, that sets out the employer's reporting policy for a suspected violation of law.
An employer shall be considered to be in compliance with the notice requirement in subparagraph (A) if the employer provides a cross-reference to a policy document provided to the employee that sets forth the employer's reporting policy for a suspected violation of law.
See 18 U.S.C. § 1833(b)(3)(B).
An employer that does not give the required notice may not be awarded exemplary damages or attorney fees in a trade-secret action against an employee who did not receive it.
If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees under subparagraph (C) or (D) of section 1836(b)(3) in an action against an employee to whom notice was not provided.
See 18 U.S.C. § 1833(b)(3)(C).
Section 7 gives employees the right to engage in concerted activities for mutual aid or protection, the statutory basis for keeping discussion of pay and working conditions outside confidentiality restrictions.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
See 29 U.S.C. § 157 (NLRA § 7).
The National Labor Relations Board protects the right of private-sector employees, with or without a union, to join together to improve wages, benefits, and working conditions.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.
See NLRB Office of Public Affairs, news release of Feb. 21, 2023 (agency mission statement).
Under the work-rule standard the Board adopted in 2023, a rule with a reasonable tendency to chill employees from exercising their Section 7 rights is presumptively unlawful unless the employer proves a legitimate and substantial business interest it cannot advance with a more narrowly tailored rule.
Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
See Stericycle, Inc., 372 NLRB No. 113 (2023); NLRB Office of Public Affairs, Board Adopts New Standard for Assessing Lawfulness of Work Rules (Aug. 2, 2023).