In the last week, the tech community has been riveted by the furore around Sam Altman. For those that have managed to miss it, Altman was sacked as CEO of OpenAI, subsequently hired by Microsoft and is now reinstated as CEO of OpenAI!
Microsoft reportedly also offered jobs to other employees of OpenAI. As reported on Radio 4's Today program and in the BBC article linked above, these moves were described by some as a 'Microsoft takeover without staging a takeover.' While this seems now to have all been resolved, the comparisons to a "takeover" did get me thinking about the IP position of the so-called takeover.
Notwithstanding any other agreements that may be in place, even if all of OpenAI's staff were to quit and be hired by Microsoft, Microsoft would not gain ownership of OpenAI's assets, including their IP. While OpenAI do not appear to own any patents, OpenAI very likely does have rights to file patent applications for any (undisclosed) inventions. These and other IP rights would not be gained by Microsoft merely by hiring OpenAI's employees.
In the UK, the position is established by the UK Patent Act. This is clear that an invention shall belong to an employer if it was made in the course of the normal duties of the employee. While the Act does provide some exceptions to this, it is very likely that AI inventions devised by an employee of an AI company in the AI sector would be made in the course of their normal duties and thus would belong to the employer. Similar provisions, whether contractual or statutory, are common in the US. That is, it is likely that OpenAI's inventions are owned by OpenAI itself, rather than by any employee, and would not be effected by a subsequent change in the employment of the employee.
It is also worth noting that other IP legislation, for example, that relating to Copyright, Registered Designs and unregistered Design Rights, has similar clauses that mean that the employer typically becomes the first owner of IP generated in the course of employment.
If you would like to talk about ownership of employee inventions or anything else IP related, please get in touch and myself or one of my colleagues at Marks & Clerk would be happy to help.
Sam Altman, meanwhile, didn't hang around. By Monday, he had accepted a new job at Microsoft, OpenAI's biggest investor.
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