Can a Washington employer require assignment of every invention?
No. RCW 49.44.140 carves out a category of inventions that an assignment clause simply cannot reach: anything the employee developed entirely on their own time, without the employer's equipment, supplies, facilities, or trade secret information, that neither relates to the employer's business or anticipated research and development nor results from the employee's work. To the extent a clause purports to capture those own-time inventions, it is against the public policy of the state and void.
Subsection (1) frames the carve-out as a limit on what an assignment promise can do. However broadly the contract is written, it does not reach an invention the employee made on their own time and with their own resources unless one of two statutory exceptions applies .
The same subsection supplies the teeth: a provision that tries to require assignment of an invention the statute excludes is not merely unenforceable as written but declared against public policy .
Washington differs from California in how it organizes these rules. California splits the carve-out, the condition-of-employment bar, and the written-notice requirement across three separate statutes — Labor Code sections 2870, 2871, and 2872. Washington folds all three into a single statute: RCW 49.44.140 states the own-time carve-out in subsection (1), bars demanding the void provision as a condition of employment in subsection (2), and requires written notice at signing in subsection (3).
Subsection (2) closes the obvious workaround. An employer cannot demand the void assignment anyway by making the employee sign it to keep the job — a provision made void by subsection (1) may not be required as a condition of employment or continuing employment .
Sources for this answer
Primary law
A.1 RCW 49.44.140RCW 49.44.140(1) makes an assignment clause inapplicable to an invention the employee developed entirely on their own time without the employer's equipment, supplies, facilities, or trade secret information, unless the invention relates directly to the employer's business or to its actual or demonstrably anticipated research or development, or results from the employee's work.
A provision in an employment agreement which provides that an employee shall assign or offer to assign any of the employee's rights in an invention to the employer does not apply to an invention for which no equipment, supplies, facilities, or trade secret information of the employer was used and which was developed entirely on the employee's own time, unless (a) the invention relates (i) directly to the business of the employer, or (ii) to the employer's actual or demonstrably anticipated research or development, or (b) the invention results from any work performed by the employee for the employer.
See RCW 49.44.140(1).
Primary law
A.2 RCW 49.44.140RCW 49.44.140(1) declares that any provision purporting to apply to an own-time, own-resource invention outside the statute's exceptions is to that extent against the public policy of the state and void and unenforceable.
Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent void and unenforceable.
See RCW 49.44.140(1).
Primary law
A.3 RCW 49.44.140RCW 49.44.140(2) bars an employer from requiring a provision made void and unenforceable by subsection (1) as a condition of employment or continuing employment.
An employer shall not require a provision made void and unenforceable by subsection (1) of this section as a condition of employment or continuing employment.
See RCW 49.44.140(2).
Must a Washington employer notify the employee?
Yes. RCW 49.44.140(3) requires an employer whose agreement contains an invention-assignment provision to give the employee, at the time the agreement is made, a written notification that the agreement does not apply to a qualifying own-time invention. Washington's leading case glosses this obligation: the notice may appear in the employment agreement itself, subsection (3) is not a vehicle for a facial challenge to an otherwise valid agreement, and if the agreement overreaches the remedy is to strike the offending portions, not void the whole.
The notice obligation is contemporaneous, not eventual: the written notification must accompany the agreement when it is made, for any agreement entered into after September 1, 1979. It does not change which inventions are carved out — subsection (1) does that — but it ensures the employee is told the carve-out exists .
In Waterjet Technology, Inc. v. Flow International Corp., the Washington Supreme Court read the notice requirement pragmatically. The notice need not be a separate document; it can live in the four corners of the agreement itself .
“there is no reason why notice may not be provided in the employment agreement itself.”
The court also cabined how the requirement can be used. Subsection (3) is a tool to defeat enforcement of overbroad provisions, not a hook for invalidating an entire agreement on its face .
And the remedy follows from that purpose. Where a provision reaches too far, the court trims rather than torches: the overreaching portions are stricken, leaving the valid remainder intact .
“Overreaching portions of the agreement should be stricken as against public policy”
The carve-out is not a free pass to keep side projects secret. RCW 49.44.150 adds a disclosure duty: even when the employee meets the burden of proving the carve-out conditions, the employee must disclose inventions being developed so the parties can sort out who owns what .
Sources for this answer
Primary law
B.1 RCW 49.44.140RCW 49.44.140(3) requires an employer whose agreement contains an assignment provision to give the employee, at the time the agreement is made, a written notification that the agreement does not apply to a qualifying own-time, own-resource invention.
If an employment agreement entered into after September 1, 1979, contains a provision requiring the employee to assign any of the employee's rights in any invention to the employer, the employer must also, at the time the agreement is made, provide a written notification to the employee that the agreement does not apply to an invention for which no equipment, supplies, facility, or trade secret information of the employer was used and which was developed entirely on the employee's own time
See RCW 49.44.140(3).
Case law · 2000-04-06
B.2 Waterjet Technology, Inc. v. Flow International Corp.Waterjet holds that the written notification required by RCW 49.44.140(3) may be provided within the employment agreement itself; the statute requires only that the employer provide a written notification.
there is no reason why notice may not be provided in the employment agreement itself.
See Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).
Case law · 2000-04-06
B.3 Waterjet Technology, Inc. v. Flow International Corp.Waterjet holds that RCW 49.44.140(3) is not a vehicle for a facial challenge to an otherwise valid employment agreement; its purpose is to prevent enforcement of overbroad agreements that violate public policy.
RCW 49.44.140(3) is not a vehicle for a facial challenge to an otherwise valid employment agreement; its purpose is to prevent enforcement of overbroad agreements that violate public policy
See Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).
Case law · 2000-04-06
B.4 Waterjet Technology, Inc. v. Flow International Corp.Waterjet holds that the remedy for an overbroad invention-assignment agreement is to strike the overreaching portions as against public policy, not to void the entire agreement.
Overreaching portions of the agreement should be stricken as against public policy
See Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).
Primary law
B.5 RCW 49.44.150RCW 49.44.150 requires the employee, even after meeting the burden of proving the RCW 49.44.140 carve-out conditions, to disclose all inventions being developed for the purpose of determining employer or employee rights.
Even though the employee meets the burden of proving the conditions specified in RCW 49.44.140 , the employee shall, at the time of employment or thereafter, disclose all inventions being developed by the employee, for the purpose of determining employer or employee rights.
See RCW 49.44.150.
Who owns an invention by default in Washington?
The inventor. Absent a written assignment, the baseline rule under federal patent law — which governs who holds title to a patentable invention in Washington as elsewhere — is that rights belong to the employee who conceived it. The U.S. Supreme Court restated that premise in Stanford v. Roche, and although others may acquire an interest, that interest must trace back to the inventor. Washington has not definitively decided whether its common-law overlays give an employer title without a written assignment — Waterjet expressly declined to reach that question — so the federal inventor-owns baseline controls.
Stanford v. Roche anchors the default. The Court held that the Bayh-Dole Act did not displace the long-standing rule that an invention belongs to its inventor, treating that premise as the baseline against which any assignment must be measured .
Because ownership starts with the inventor, an employer's title is derivative: it exists only if and to the extent the employee assigned it. Any third-party interest in the invention must trace back to that inventor-grantor .
Other states recognize narrow common-law overlays — the hired-to-invent doctrine, which gives an employer equitable title where the employee was engaged specifically to invent, and the shop right, a non-exclusive license where the employee used the employer's resources. Whether those overlays give a Washington employer rights to an employee's invention absent a written assignment is unsettled. In Waterjet, the Washington Supreme Court was asked, by certified question, whether RCW 49.44.140 preempts an employer's common-law rights to inventions by employees hired or directed to invent — and it expressly declined to answer .
“we decline to reach the third certified question.”
With the question left open, a Washington employer cannot safely rely on a hired-to-invent or shop-right theory to claim ownership. The dependable path is a written present-assignment (hereby assigns) clause — present-tense language that transfers legal title automatically on conception, rather than a future promise to assign — operating within the boundaries RCW 49.44.140 imposes.
Sources for this answer
Case law · 2011-06-06
C.1 Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular SystemsStanford v. Roche confirms the long-standing premise of U.S. patent law that rights in an invention belong to the inventor.
Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Case law · 2011-06-06
C.2 Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular SystemsStanford v. Roche holds that although others may acquire an interest in an invention, that interest as a general rule must trace back to the inventor — so an employer takes title only through an assignment from the employee-inventor.
Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Case law · 2000-04-06
C.3 Waterjet Technology, Inc. v. Flow International Corp.Waterjet expressly declined to decide whether RCW 49.44.140 preempts an employer's common-law rights to inventions by employees hired or directed to invent, leaving Washington's common-law ownership overlays unsettled.
we decline to reach the third certified question.
See Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).
Are trailing-assignment (holdover) clauses enforceable in Washington?
Unsettled. This is where Washington diverges from California. There is no published Washington authority deciding whether a clause reaching inventions conceived after employment ends is enforceable, and no Washington statute that expressly caps such a clause. Washington's noncompete statute does not fill the gap, because its definition of a noncompetition covenant excludes covenants about inventions. The most a careful reader can say is that an overreaching clause would likely be trimmed under Waterjet's remedy framing — but the core enforceability question remains open.
Start with the statute's silence. RCW 49.44.140 governs what an assignment clause may reach during employment, voiding any provision that purports to capture a qualifying own-time invention. It says nothing, one way or the other, about a clause reaching inventions conceived after the employment relationship ends .
Nor does Washington's noncompete statute supply a cap. Chapter 49.62 RCW caps noncompetition covenants — and presumes covenants longer than eighteen months unreasonable — but its definition of noncompetition covenant expressly excludes a covenant prohibiting use or disclosure of trade secrets or inventions. That express carve-out addresses use-and-disclosure covenants, not assignment clauses as such, so a trailing invention-assignment provision is at least not squarely governed by the chapter — and its eighteen-month durational presumption does not clearly supply a ceiling for a post-employment assignment clause.
What guidance exists points to trimming rather than wholesale invalidation. The Waterjet remedy — strike the overreaching portions as against public policy — suggests a Washington court confronted with an overbroad holdover clause would likely pare it back rather than enforce it as written .
“Overreaching portions of the agreement should be stricken as against public policy”
But that is an inference, not a holding. No published Washington decision has squarely decided whether a post-employment trailing-assignment clause is enforceable, so the answer is genuinely unsettled — unlike California, where Whitewater and section 16600 supply a clear statutory ceiling. A drafter should treat an aggressive Washington holdover clause as a risk to be avoided, not a settled tool to be relied upon.
Sources for this answer
Case law · 2000-04-06
D.1 Waterjet Technology, Inc. v. Flow International Corp.Waterjet holds that the remedy for an overbroad invention-assignment agreement is to strike the overreaching portions as against public policy, suggesting a Washington court would trim rather than enforce an overbroad holdover clause — though no published decision squarely addresses post-employment trailing assignments.
Overreaching portions of the agreement should be stricken as against public policy
See Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).
Primary law
D.2 RCW 49.44.140RCW 49.44.140(1) voids any provision purporting to apply to a qualifying own-time invention during employment, but is silent about clauses reaching inventions conceived after employment ends.
Any provision which purports to apply to such an invention is to that extent against the public policy of this state and is to that extent void and unenforceable.
See RCW 49.44.140(1).
Do not paper a Washington employee with an out-of-state invention-assignment form. A form built for an assign-everything jurisdiction will usually omit the RCW 49.44.140(3) written notice of the own-time carve-out, and it often contains an aggressive post-employment trailing-assignment (holdover) clause. Confirm the agreement carries the RCW 49.44.140(3) notice at signing — it may sit in the agreement itself per Waterjet — and limit the assignment to what RCW 49.44.140(1) actually allows. Because Washington has not decided whether post-employment holdover clauses are enforceable, avoid an aggressive trailing-assignment clause rather than rely on one.