IP rights of government employees?

[username12]

What is the name of your state?CA
If a person invents something during US federal employment (and the invention is closely related to her primary area of work for this employer), but the invention is made on her own time and prior to her being tasked/funded for it (but the optimization of the invention is later funded, NOT with R&D funds but rather operations/purchasing funds), could that person patent the invention herself (and have it be defensible) or would she have to patent it through the government and also have the government own the rights?

 

[divgradcurl]

If a person invents something during US federal employment (and the invention is closely related to her primary area of work for this employer), but the invention is made on her own time and prior to her being tasked/funded for it (but the optimization of the invention is later funded, NOT with R&D funds but rather operations/purchasing funds), could that person patent the invention herself (and have it be defensible) or would she have to patent it through the government and also have the government own the rights?

The first thing to consider is whether or not their was any type of contractual agreement in place covering this type of situation -- most companies that innovate and patent make their employees sign a form that tells them that anything they invent while working for the company belongs to the company. I don't know if governmental agencies have the same forms (I wouldn't doubt it). Even though you may invent something on your own time, if you are using knowledge (and in your case, money) obtained from the company, the invention really isn't something you came up with entirely on your own, and, in your case, if the invention is closely related to what you are working on at work, you would have a tough time proving that you came up with the invention independently.

However, if you don't have any sort of contractual agreement, your best bet is simply to talk with your boss, or whoever handles IP in your area, and ask them -- if you are not comfortable talking with your boss, talk to an outside attorney first. My guess is that the patent would issue in your name, but the rights would be assinged to your employer (that's how most inventions that are funded by employers work), but an attorney (or your boss) who can review ALL of the facts in question may come to a different conclusion.