Can a Washington employer require assignment of every invention?
A Washington employer cannot require assignment of inventions developed entirely on an employee's own time without employer equipment, supplies, facilities or trade secret information, unless they relate directly to the employer's business or to its actual or demonstrably anticipated research or development, or result from work performed for the employer . To the extent a clause purports to capture those own-time inventions, it is against the public policy of the state and void. On a touch screen, a tap shows all 2 sources in this group.
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 .
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RCW 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).
RCW 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).
RCW 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?
A Washington employer whose employment agreement requires the employee to assign inventions must give the employee, at the time the agreement is made, written notice 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. On a touch screen, a tap shows all 2 sources in this group.
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 .
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RCW 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).
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).
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).
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).
RCW 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?
Under the federal patent-law default, rights in a Washington employee's invention belong to the employee who conceived it . That baseline comes from federal patent law, which governs who holds title to a patentable invention in Washington as elsewhere. 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. On a touch screen, a tap shows all 2 sources in this group.
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
Stanford 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).
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).
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?
In our review we found no published Washington decision deciding whether an employer may enforce a clause assigning inventions conceived after employment ends, and no Washington statute expressly capping such a clause. This is where Washington diverges from California. 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. On a touch screen, a tap shows all 2 sources in this group.
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.
Washington's eighteen-month presumption will end on June 30, 2027. On that date, Engrossed Substitute House Bill 1155 (chapter 149, Laws of 2026) takes effect; it strikes the presumption from RCW 49.62.020. On a touch screen, a tap shows all 2 sources in this group. After June 30, 2027, the eighteen-month presumption will not be available even as a loose reference point for a trailing 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 held a former employer's assignment provision void under California law . An aggressive Washington holdover clause therefore faces uncertain enforcement.
Sources for this answer
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).
Section 4 of ESHB 1155 strikes the eighteen-month presumption from RCW 49.62.020; the session law prints this sentence as deleted text.
A court or arbitrator must presume that any noncompetition covenant with a duration exceeding eighteen months after termination of employment is unreasonable and unenforceable.
See Engrossed Substitute House Bill 1155, ch. 149, Laws of 2026, § 4 (amending RCW 49.62.020).
ESHB 1155 takes effect June 30, 2027.
This act takes effect June 30, 2027.
See Engrossed Substitute House Bill 1155, ch. 149, Laws of 2026, § 9.
RCW 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).
RCW 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).
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).
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. On a touch screen, a tap shows all 2 sources in this group.
Whitewater West v. Alleshouse holds the former employer's assignment provision void under California law.
In particular, we reverse the judgment of breach of contract because we hold that the assignment provision is void under California law.
See Whitewater W. Indus., Ltd. v. Alleshouse, 981 F.3d 1045 (Fed. Cir. 2020).
What does federal law require a confidentiality and invention assignment agreement in Washington 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.
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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).