# Employee Invention Assignment in Washington[^about] Washington's RCW 49.44.140 voids any clause forcing an employee to assign an invention developed entirely on their own time, without the employer's resources, that is unrelated to the employer's business and does not result from the employee's work; the employer must give written notice of that carve-out at signing. Whether a post-employment holdover clause is enforceable is unsettled in Washington. ## Can a Washington employer require assignment of every invention? {#statutory-carve-out} **Short answer.** 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 [^stat-140-carveout][^stat-140-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 [^stat-140-carveout]. "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."[^stat-140-carveout] 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 [^stat-140-void]. "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."[^stat-140-void] 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 [^stat-140-condition]. "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."[^stat-140-condition] ## Must a Washington employer notify the employee? {#employee-notice} **Short answer.** 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 [^stat-140-notice][^waterjet-notice-in-agreement]. 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 [^stat-140-notice]. "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"[^stat-140-notice] 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 [^waterjet-notice-in-agreement]. "there is no reason why notice may not be provided in the employment agreement itself."[^waterjet-notice-in-agreement] 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 [^waterjet-not-facial]. "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"[^waterjet-not-facial] 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 [^waterjet-strike]. "Overreaching portions of the agreement should be stricken as against public policy"[^waterjet-strike] 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 [^stat-150-disclose]. "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."[^stat-150-disclose] ## Who owns an invention by default in Washington? {#default-ownership} **Short answer.** 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-inventor][^stanford-traceback]. *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 [^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. Any third-party interest in the invention must trace back to that inventor-grantor [^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] 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 [^waterjet-declined]. "we decline to reach the third certified question."[^waterjet-declined] 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. ## Are trailing-assignment (holdover) clauses enforceable in Washington? {#holdover-clause-limit} **Short answer.** 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 [^waterjet-strike-holdover][^stat-140-void-holdover]. 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 [^stat-140-void-holdover]. "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."[^stat-140-void-holdover] 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 [^waterjet-strike-holdover]. "Overreaching portions of the agreement should be stricken as against public policy"[^waterjet-strike-holdover] 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. > [!NOTE] > **Practice note.** > > 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 [^stat-140-notice][^waterjet-strike]. [^about]: By Steven Obiajulu, J.D. Published by [openagreements.org](https://openagreements.org). Last reviewed 2026-06-30. License: CC BY 4.0. Steven Obiajulu, J.D. is admitted in New York, not Washington. This article synthesizes Washington primary law and is not legal advice from a Washington-admitted attorney. This article is for informational purposes only and does not create an attorney-client relationship. [^stat-140-carveout]: **RCW 49.44.140** — "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." *RCW 49.44.140(1).* [^stat-140-void]: **RCW 49.44.140** — "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." *RCW 49.44.140(1).* [^stat-140-condition]: **RCW 49.44.140** — "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." *RCW 49.44.140(2).* [^stat-140-notice]: **RCW 49.44.140** — "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" *RCW 49.44.140(3).* [^waterjet-notice-in-agreement]: **Waterjet Technology, Inc. v. Flow International Corp.** — "there is no reason why notice may not be provided in the employment agreement itself." *Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).* [^waterjet-not-facial]: **Waterjet Technology, Inc. v. Flow International Corp.** — "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" *Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).* [^waterjet-strike]: **Waterjet Technology, Inc. v. Flow International Corp.** — "Overreaching portions of the agreement should be stricken as against public policy" *Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).* [^stat-150-disclose]: **RCW 49.44.150** — "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." *RCW 49.44.150.* [^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).* [^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).* [^waterjet-declined]: **Waterjet Technology, Inc. v. Flow International Corp.** — "we decline to reach the third certified question." *Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).* [^waterjet-strike-holdover]: **Waterjet Technology, Inc. v. Flow International Corp.** — "Overreaching portions of the agreement should be stricken as against public policy" *Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313 (2000).* [^stat-140-void-holdover]: **RCW 49.44.140** — "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." *RCW 49.44.140(1).*