Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 27: Innovation through the lens of corporate governance
One of the issues examined in Parts II and III of this book concerned how the law deals with competing claims of the employer and employee to ownership of an invention developed by an employee. Almost invariably in this situation the employer will be a corporation. That fact in itself should introduce no difficulty to the analysis, but if the individual responsible for the invention is a director or other officer of the corporation, whether or not they are also an employee, different legal duties will come into play. It is these duties which are the concern of this chapter. Directors of a corporation are subject to their own particular duties, at both general law and under statute, and these duties will inevitably have an impact on the claims that might otherwise be made to the ownership of business inventions. To examine these issues, this chapter is structured as follows. The next section considers the fiduciary duties, and their legislative counterparts, that are most likely to be relevant to a claim of a director to a business invention. Of particular interest here is the ‘corporate opportunities’ doctrine. The nature of this doctrine, its limits and how it might apply in the context of business innovations are considered. Next, the chapter outlines the remedies that are likely to apply in the event that a breach of fiduciary duty is established. Finally, the extent to which directors may be able to obtain the company’s consent to keep the benefits of an invention is considered.
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