Delaware Confidentiality and Invention Assignment Agreement
Delaware limits by statute what an employer can claim in an employee's inventions. Non-competes are left to case law: the courts apply a reasonableness test, and since 2024 the Delaware Supreme Court has confirmed that a judge may refuse to repair a covenant that reaches too far.
What Delaware law does to this document
The invention carve-out
An assignment clause does not apply to an invention the employee developed entirely on the employee's own time, without using the employer's equipment, supplies or facility and without its trade secret information. Two exceptions return the invention to the employer: it relates to the employer's business or its actual or demonstrably anticipated research or development, or it results from work the employee performed for the employer. A clause that claims more is against Delaware public policy and unenforceable to that extent.
19 Del. C. § 805An overbroad assignment cannot be a condition of the job
The same section bars an employer from requiring a provision it makes unenforceable as a condition of employment or continued employment. The text of the section does not require the employer to give the employee a written notice of the carve-out. Stating the carve-out in the agreement is still the simplest way to show the assignment stays inside the statute.
19 Del. C. § 805The test for non-competes and non-solicits
Delaware courts review these covenants to see that they are reasonable in geographic scope and temporal duration, advance a legitimate economic interest of the party seeking enforcement, and survive a balancing of the equities. The test comes from case law. Scope is judged against the employee's actual role and the employer's actual business.
Sunder Energy, LLC v. Jackson, 332 A.3d 472 (Del. 2024)Courts may decline to blue-pencil
In Sunder Energy the Delaware Supreme Court held that the Court of Chancery did not abuse its discretion when it refused to narrow overbroad covenants and enforce a reduced version. The Court observed that Delaware judges have used the blue pencil where the circumstances showed equal bargaining power, such as specifically negotiated language or the sale of a business. A drafter cannot count on a severability clause to rescue a covenant written too wide.
Sunder Energy, LLC v. Jackson, 332 A.3d 472 (Del. 2024)Physicians
A covenant not to compete in an employment, partnership or corporate agreement between or among physicians is void if it restricts the physician's right to practice medicine in a particular locale or for a defined period after the agreement ends. Other provisions remain enforceable, including a requirement to pay damages reasonably related to the injury suffered.
6 Del. C. § 2707Trade secrets are protected with or without a covenant
The Delaware Uniform Trade Secrets Act allows an injunction against actual or threatened misappropriation and damages for actual loss and unjust enrichment. Exemplary damages of up to twice the award are available for willful and malicious misappropriation. The confidentiality section of the agreement supports the reasonable secrecy efforts the Act requires.
6 Del. C. §§ 2001, 2002, 2003Where people go wrong in Delaware
- Answering No to the generator's statutory carve-out question, which leaves the draft assigning inventions made on the employee's own time and unrelated to the business, contrary to 19 Del. C. § 805; choose Yes for a Delaware employee.
- Drafting a nationwide or multi-year non-compete for a junior employee and expecting the Court of Chancery to narrow it.
- Putting a post-termination non-compete in a physician's agreement, where Delaware makes the restriction void.
How the generator works
The core IP-and-confidentiality agreement every employee should sign. It assigns work product to the company, protects trade secrets, and handles restrictive covenants to the 2026 rules. Answer a short interview and the draft assembles as you go, with Delaware already set as the governing state. Download it as PDF or Word. No fee. No account.
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