Posted on: Feb 22, 2013
Arguments can arise between an employer and employee over who owns property (intellectual or physical) developed by the employee. In Empress Abalone Ltd v Langdon  2 ERNZ 53 (CA), the Court of Appeal considered whether an invention was made in the course of employment and therefore owned by the employer. The employer in that case asserted that, because Mr Langdon had been employed to conduct research, all research Mr Langdon conducted had therefore to fall within the ambit of his employment and be the property of the employer. The Court disagreed. At  Keith J said:
The suggested principle of law is, we think, stated too widely. It is not supported by the cases or by principle. It would mean, for instance, to recall the famous lines of Ralph Waldo Emerson, that had Empress Abalone manufactured mousetraps as well as pearls [the defendant], although employed only in respect of pearl production, would not have been allowed to turn his inventive mind for the benefit of himself and humanity to the manufacture of a better mousetrap. … any such invention should belong to the inventor, in the absence of a contractual or other legal obligation to the contrary.
The issue of who owned the intellectual and physical property developed by an employee arose again in Pickering v Detection Services Ltd  NZERA Auckland 260. The Authority applied the principle outlined above. Mr Pickering claimed that he had been unjustifiably dismissed. As part of its consideration of all the circumstances surrounding the dismissal the Employment Relations Authority considered the rights and wrongs of the argument between Mr Pickering and Detection Services over who owned physical and intellectual property in an acoustic trunk mains leak detection device (DPX) developed by Mr Pickering. The Authority examined Mr Pickering’s job description and the employment agreement. It noted that Mr Pickering’s employment agreement emphasised management and did not include any reference to research and development. It said that once Mr Pickering began work any work he did on DPX was not done as part of his job description and was not one of his employment duties. The Authority concluded that Detection Services was not justified in dismissing Mr Pickering because he refused to hand over the DPX because Detection Services was wrong in its assumptions about its ownership of DPX.
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