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Making Sense Of An Employee IP Agreement

John Malpas writes: "In the process of looking for a job as a Java engineer, I recently encountered a really hard-edged employee IP agreement -- one of those agreements that asks the employee to list all of their "inventions" as of the date of employment. The intent of this kind of agreement seems to be to let software ideas into the company, but not to let them out. In the language of the agreement, if I improved one of my "inventions" while working for the company, they would have all rights to the improved "invention," and I would have none. In this case, I chose to try to negotiate a more reasonable IP agreement with the company. Finally, the company was unwilling to modify their agreement, and I was unwilling to sign it." Read on for more -- it may help you avoid the same hasssles John faced.

"There are many articles that suggest that it is unlikely that the company would ever try to enforce its IP agreement, much less succeed. But I was not comfortable entering a situation where the company might in the future claim exclusive rights to one of my "inventions," and prevent me from using it somewhere else.

When it came right down to it, my list of "inventions" looked pretty meager. These "inventions" are not really inventions at all, but rather extensions and adaptations of publicly available software. Using the word "invention" to refer to such extensions is unfortunate; it is an attempt to impose an ownership structure onto software ideas, and contradicts my experience of how software development really works. For the full story, see The Employee IP Agreement."

John kept careful track of his thoughts (and a lot of emails, phone calls and in-person meetings) while he sought to forge an IP agreement that he'd hoped would be workable for him and his client. It's a sobering story, so be thankful he's put it to writing. 1/3 warning, 2/3 good advice.

35 of 215 comments (clear)

  1. Re:Similar Situation (but with bonus 'bad faith') by fatmantis · · Score: 3

    What if you came into the situation where you could use something you may have coded privately, for a company project?

    would you re-write it from scratch? that would waste the companies time and money. if the code is available and you choose to waste time re-doing it, you suck that many hours away from the project. I'm sure you're well compensated, right? it sounds like a several thousand dollar fuck you from here.

    would you use the version with your name on it? if you brought prior work that you failed to declare earlier, you'd be acting in bad faith. in fact, failing to divulge the work, regardless of your licensing choices, is a bald lie, surely at odds with your IP agreement.

    Your opinion is hardly law. maybe they'll never find out, but the fact that you've done this thing makes you a bad employee. I'm sure you have ego and pride enough to ignore this, but the fact remains. It is very likely that you could make a modification to some GPL code, then leave having the PHB's thinking they own the code. half the /. stories on companies fucking up a GPL issue probably stem from the headstrong, myopic egocentrism of certain employees thinking they are somehow exempt from straight up disclosure. I hope you're proud of yourself.

    --

    ::I will not moderate my opinions for your stinking karma

  2. Some more clauses by pkphilip · · Score: 3

    My former company had clauses relating to work once I left the company.

    Some of the clauses were
    1. The employees are forbidden from working with any clients, competitors etc when they leave the company.
    2. The employees are forbidden from joining any other company employing an ex-employee..

    Clause 1 obviously meant that I could not work in IT consulting firms once I left the company as any IT consulting company can be seen as a competitor.

    I did not agree to these terms and asked for a seperate agreement with these clauses deleted.

    Besides this, there was the standard clause which did not allow me to be involved in any job other than with the company..this essentially meant that I could not involve in work during my spare time or after office hours.

  3. Re:Definition of invention? by Roofus · · Score: 4


    Reading the story provided in the link above, and invention can be anything ranging from a physical entity, to a software toolkit or library. It's quite possible even written works such as how-tos or books could be considered an "invention"

  4. Not any consulting company by CharlieG · · Score: 3

    OK,
    Back when I was starting my own company, I had a client that had a non compete clause about working for competitors. My Lawyer explained that Non-compete clauses are ALMOST non-enforcable

    How enforcable a clause is depends on HOW the company treated you, and compensated you. If they claim that your idea was "vital to their business", they had better have 1)Given you a title that refected that, and 2)Compensated you to match. If they missed either one, it is evidence that you were NOT vital.

    They also can NOT word a non compete in such a way that
    1)Prevents you from working in your field
    2)Requires you to move your household

    The CAN require you to commute 2 hours or so each way, but if the distance gets so long that you can't make a living - bye bye

    --
    -- 73 de KG2V For the Children - RKBA! "You are what you do when it counts" - the Masso
  5. Re:Egotistical programmer misunderstands legalese by Arker · · Score: 4

    Hmm you should have read the legalese before posting on it. They defined "invention" for the purposes of the contract, rather incredibly broadly, and it did indeed cover those things.


    "That old saw about the early bird just goes to show that the worm should have stayed in bed."
    --
    =-=-=-=-=-=-=-=-=-=-=-=-=-=-
    Friends don't let friends enable ecmascript.
  6. Modify the agreement by Michael+Snoswell · · Score: 3

    Same thing happened to me when offered a job by a very large Silicon Valley unix systems manufacturer (who shall remain nameless).

    They had this one paragraph that covered just about every thought I'd have whilst employed by them. I was working on a significant project at the time in my own hours and refused to sign. Their comment was "We thought you might say that, but we thought we'd try it on you anyway"!!!

    I got a friend who is a laywer to expand their paragraph into a 10 page document that defined "working for", essentially meaning only when working on jobs under their direction (not just in working hours: what if you work late? and not just in 9-5 hrs: what if you have a sick day and work on your own project at home that day?)

    It took two months for them to okay it but they said my final document followed the spirit of their own shorter paragraph anyway.

    Certainly in Australia I've known of a case where a company tried to get difficult with an ex-employee (taking an idea he developed in his own time to a new employer) and failed before it even got to court. It just couldn't be proved. I imagine if a *lot* of money was involved things might have gone differently.

    --
    pithy comment
  7. Another experience I had similar to this by Skapare · · Score: 5

    I was approached by a recruiter wanting a Senior Unix Systems Administrator for a new e-commerce company. He liked the fact that I also had experience in Cisco and C coding. He claimed I was "very hot for them" (though this may be usual recruiter puffing). I OK'd passing on my resume, and he called back the very next day with "They want to talk to you ASAP, but the CEO is flying in on Friday so we have to schedule then". So I said "OK". He then said "Great, I'll FAX over the NDA to you now, and you can just bring it with you when you go in".

    I asked him what was in it (since I didn't have FAX and would have to read it when I arrived) and he said "Oh, the usual stuff, that you won't use any of their ideas". "And what if their ideas are ideas I'm already working with?". "That could be a problem". "Then we'll need to negotiate the terms to protect both parties". "They can't do that, the CEO is there for just one day a week, and they are interviewing a lot of people that day". "Then it sounds like they have no need for me". "But they do, your experience is fantastic". "Sorry, but if they don't care about being fair with my rights, I doubt it will be a place I'll end up staying at, and I might not be able to find employment after I leave if I blindly sign unnegotioated terms".

    At that point we politely canceled the interview. But I don't know at this point how the recruiting firm will treat this.

    I did interview with another company, which had a special part of the interview where they discussed their coming market strategy. They had a very reasonable NDA to have access to that part, and it was optional. The NDA simply prohibited disclosure of what I would see and hear at that presentation. So not every employer is bad. We need to just avoid those who are.

    --
    now we need to go OSS in diesel cars
  8. Re:Egotistical programmer misunderstands legalese by Omnifarious · · Score: 4
    When the company writes about an invention, they really mean something you can patent or something you have patented. Invention specifically does not mean any idea that came into your pretty little head. Just because you created a program to manage a linked list doesn't qualify it as an invention unless your implementation was sufficiently novel that you could patent it (and then demand license fees from others to use it).

    This runs counter to just about everything I've haerd about patents and software. Yes, they do mean any idea that comes into your pretty little head. Just read the reports of what companies sue over.

    Ideas are reinvented by people in the IT industry countless times. I bet there are maybe 20 or 30 (probably less) significant, patented ideas in sotware that 50 other people didn't have at the same time, or even long before they were patented.

  9. Reality. by Lemmy+Caution · · Score: 3
    There are not an infinite number of employers. There is an even smaller number of employers in any given field or domain. There are even fewer employers in a given field or domain that may be looking for someone of a specific skillset. If there are any externalities - e.g., the job seeker has a family to support in the area or other ties that limit mobility, the number of employers may be limited indeed. If unacceptable practices become industry standards, then one has the choice of not working at that profession, or working as, say, a fry chef. The likelihood that someone is more willing to accept onerous conditions than work as a fry cook, and that the employer only need one qualified individual for any given position, creates no incentive for them not to impose those conditions if they can find that one individual who is willing to accept them.

    The myth of the free "labor market" omits the realities of the balance of power between employer and employee. If a critical mass of employers make the abrogation of liberties a prerequisite for employment, and one needs that employment to get by, then, essentially, those liberties do not exist.

  10. Employer Rights in Employee Inventions by snellac · · Score: 5
    If you want to learn more about this topic, I suggest you check out this link: Employer Rights in Employee Inventions. Sometimes seeing what rights they have will help you on your way to learning what rights you have.

    -snellac

  11. Two way street by peter+hoffman · · Score: 3

    It would be interesting to ask them for a complete list of their inventions as of your hiring date. For their protection, of course!


    OpenSourcerers
  12. Re-implement by MeowMeow+Jones · · Score: 3

    This agreement seems fair. Clearly, a company needs to own all of the source code behind their product. They can't worry about a disgruntled ex-employee suddenly demanding that they pay royalties for 'his code' or any other things that might pop up.

    Just sit down and write the code from scratch. Even if you're doing basically exactly the same thing you've done before. If you get a job at another company doing the exact same thing, rewrite it from scratch again.

    It not only protects the company, it protects you from any ex-employers.

    --

    Trolls throughout history:
    Jonathan Swift

    1. Re:Re-implement by RedWizzard · · Score: 3
      This agreement seems fair. Clearly, a company needs to own all of the source code behind their product. They can't worry about a disgruntled ex-employee suddenly demanding that they pay royalties for 'his code' or any other things that might pop up.
      If the company expects you to bring previously developed code to the job (as they seem to in this case) then they should be paying licence fees, or purchasing the rights to the code from you. Salaray or wages are not compensation for work you've done previously.
      Just sit down and write the code from scratch. Even if you're doing basically exactly the same thing you've done before. If you get a job at another company doing the exact same thing, rewrite it from scratch again.

      It not only protects the company, it protects you from any ex-employers.

      Doing it that way is a breach of "clean room" practices, and won't save you from any ex-employers, because you've seen the old code. Employers just have to stop trying to grab rights to this sort of generic code which has nothing to do with their business logic. They want to take something from you for nothing, which is clearly not fair.

      Really the only way to avoid getting into trouble with these sorts of employment contracts these days is to only ever work for one company.

  13. HR cluelessness by Alien54 · · Score: 4
    Something I have heard of being done in the past is to convenioently forget to give them the signed document. It gets lost in the shuffle. "HR must have messed up", etc. And if there is any problem, you can say send me a copy of the docs.

    HR can be relied on to mess up paper work from time to time, and they assume that it is always in there.

    If they are really sharp they'll say "oops, this seems to be missing" and touch bases with you before there is a problem.

    Mind you, IANAL, and you are responsible for your own karma.

    [smile]

    --
    "It is a greater offense to steal men's labor, than their clothes"
  14. Re:Similar Situation (but with bonus 'bad faith') by Ex-NT-User · · Score: 4

    The original poster was making the point that:

    1. If he writes it during work hours he WON'T use it in his "own time" projects.

    2. And if he writes it in his "own time" the employer has NO RIGHT to it.

    I fully support that idea. What you are sugesting is that if I am say a woodworker. (I carve statues,figurines whatever for the company I work for and they sell them) If I go home and over the weekend with my own tools carve out a magnificent work of art and sell on ebay the company ACTUALLY owns it and I should give any earnings to said company. That is BS.

    He is NOT being a bad employee because he rewrites something from scratch that he has handy access to because he already did it at home. He doesn't want the company owning the original version (which is HIS IP). Hey if a company told me yeah bring in the old stuff you did and it'll stay your IP I bet he would. The problem is a lot of companies seem to think they own everything you do. Whether its on their time (where they are right in thinking so) or if you do it on your own time. (In which case they can kiss my arse because it's MINE noth theirs, as long as I have not stollen or used anything that's their IP)

  15. Another thing to watch out for by Tim+Macinta · · Score: 5

    A couple of places I have contracted for tried to put clauses in my NDA/non-comp agreement that basically said that if they sued me to enforce the agreement I would have to pay their legal expenses incurred by them in suing me. What my lawyer advised me was to change such clauses to read that the "prevailing party" would be entitled to recover reasonable legal expenses from the losing party. So essentially, this took a very bad clause that would have been detrimental to me (they could sue me on a whim and I would have to pay for it) into something which protected me doubly from frivolous lawsuits (because if their case isn't solid they would stand to lose a good chunk of money reimbursing me).

    I just wanted to throw this idea out because I think that there are plenty of "standard" clauses like this which are bad for contractors, and it helps to have a good response in your arsenal to turn it around into a positive. If we have enough people in the industry insisting on reasonable terms, companies won't be able to ignore us because _we_ will then be setting the standard terms by our shear numbers. Besides, if a company doesn't agree to the change that I mentioned above it should be a pretty big warning sign - enough to make you walk away.

  16. this is becoming all too common by fluxrad · · Score: 5

    while not exactly the same thing you're dealing with, i am reminded of a no-compete agreement that was circulating in my company a while back.

    basically, our parent company wanted us all to sign a no-compete agreement that basically said we couldn't work in IT after we had left (for one reason or another) said company. It was obviously a career destroyer, and we did have several people leave the company immediately upon seeing this agreement.

    what did the rest of us do? exactly what every current employee of every company that wants to screw their employees do - tell them to go screw themselves.

    This sounds like a very union-esque concept. and, perhaps, it is. But i can't stress enough the fact that if every employee of a company fails to sign an agreement (to do|not to do) X, then there's nothing the company can do. They can threaten all they want, they may even fire one or two people just to show how sharp their sword is. But, at the end of the day, the company will be forced to scrap the agreement.

    I would have advised employees of our friends prospective employer to do the very same. That, combined with a very small influx of new personell might bitchslap the company upside the head and make them realize that their policies are unfair and aren't making them any friends in the software biz.


    FluX
    After 16 years, MTV has finally completed its deevolution into the shiny things network

    --
    "It is seldom that liberty of any kind is lost all at once." -David Hume
    1. Re:this is becoming all too common by andr0meda · · Score: 3

      This sounds like a very union-esque concept. and, perhaps, it is. But i can't stress enough the fact that if every employee of a company fails to sign an agreement (to do|not to do) X, then there's nothing the company can do. They can threaten all they want, they may even fire one or two people just to show how sharp their sword is. But, at the end of the day, the company will be forced to scrap the agreement

      [..]


      Well I think this is only possible because you`re talking about the IT & software sector. People can excercise a certain pressure on the company because IT companies have trouble in getting people, and then keeping them. Good people are hard to find and companies try to trade benefits, collegiality, respect and responsabilities for additional time withing the company, while trying to limit the interest of their employees in other areas/markets/companies. IT people are indeed scarce thes days, but I suspect this situation will end in maybe 5 to 8 years. So while it might be opportune to go job-(s)hopping now, it can`t hurt to try and build a more depending relationship with your company while you still can get the most benefits out of it. They won`t be as willing to render you some benefits once the booming is over.

      Personally I don`t like that strategy one bit either, but I`m afraid that`s the way it`s supposed to go. I`m not really an IT-er (more interested in the science part of things) so this doesn`t really apply to me.

      --
      With great power comes great electricity bills.
  17. double edge sword. by www.sorehands.com · · Score: 5
    Companies put IP agreements into place to keep what employees work on. If it is too broad, it may not be held to be valid.

    But, companies may not realize the trouble they ask for. If they own everything you work on, then they are liable for everything you do. In my case, the WC insurer tried to deny liability claiming that my work was not the sole cause of my tendinitis, but it was from my computer usage at home. If they have the right to take what I work on at home, then they are on the hook for that liablity too. Workers comp. coverage covers for injury that is caused by your work (usually the test is 50% of more contributing).

  18. Yet another example by Anonymous Coward · · Score: 3

    IP agreements can be enforced, if the company thinks they would profitable enough. As an a example: Intellectual property or mind control? provides an example where a company tried to sue to force the idea out of the person's head, even though it hadn't been put on paper, or developed. This could come very close to developing works for free. Not signing such IP agreements or requiring companies to modify them, is only self-defence.

  19. Egotistical programmer misunderstands legalese by petej · · Score: 4

    I am not a lawyer. Not yet, anyway.

    Intellectual property agreements are written by lawyers to protect the intellectual property of a company. Intellectual property is defined as patents, copyrights and trade secrets. This agreement was about patents. Patents protect inventions or improvements to inventions, and were created to deal with hardware, not software. When the company writes about an invention, they really mean something you can patent or something you have patented. Invention specifically does not mean any idea that came into your pretty little head. Just because you created a program to manage a linked list doesn't qualify it as an invention unless your implementation was sufficiently novel that you could patent it (and then demand license fees from others to use it).

    Since programming is all about organizing ideas, most programmers tend to view all of their work as invention, but that's really just a figment of our egos. In the context of an intellectual property agreement, invention has a very specific meaning, which is actually good news, because most of your inventions really, probably, aren't inventions -- they qualify as general knowledge of the industry, which is not subject to IP agreements because you need it to ply your trade (which an IP agreement cannot prevent you from doing).

    With respect to making an improvement to an invention, granting the company ownership of the improvement does not grant them any rights to the invention. The thing is, the patented improvements usually are things that you can't live without, so the invention becomes useless without the rights to the improvements. (This is called building a patent fence around an invention, and is a common tactic for circumventing the 17-year life of the monopoly of a patent.)

    Finally, about whether the employer can own your ideas invented outside of work, there are several states in which that's not allowed by law, but in all the rest, it's part of the voluntary nature of the agreement -- the law says that if you don't like the agreement, don't take the job, because nobody's holding a gun to your head forcing you to work there. (Contrast this with your rights if drafted into military service -- because you have no choice in the matter, you have some extra rights as compared to those you might have as an employee.) The bad news is that you end up with an uncomfortable choice -- feed your family, or sign an odious agreement. The legal terms are something like you are given compensation in consideration for your ideas. This language was originally meant to apply to guys like Thomas Edison, who were prolific inventors (again, software, for the most part, doesn't count as invention), so the company wanted to be able to have the benefit of all the person's ideas, and in exchange, the company would pay a salary, rather than an hourly rate (you have a much stronger argument that your off-work ideas are your own if you are paid by the hour; everything else is considered work for hire, and is considered property of the person hiring you for the job). What I wonder about is, since almost everyone has IP agreements like this, isn't it a collusion among the companies to prevent you from having a choice, so it would be subject to the Sherman Act, but I don't really think anyone would ever be willing to take that case.

    If you're really concerned about your IP, your best bet is to be an independent contractor, where you will explicitly transfer your IP to the person hiring you for the term of the contract, and where you explictly license your existing IP to them.

  20. This is why we need a union. by Anopheles · · Score: 3

    So, let me get this straight. He works his butt off, 1) writing code and 2) improving his "toolkit". He quits or gets laid off or even dies.

    Depending on the IP agreement, John could own all his software he wrote at the place, *and* force the company to pay royalties to use the code. This would just about assure 100% job security, and a hefty paycheck to make sure you don't think about quitting...

    In short, this little IP spat prevents a programmer from being paid what he's worth, based on his contribution to the company. What benefit does a company offer that offsets the stress of having to worry about intellectual property laws? And why does a programmer have to fight a legal battle alone?

    I know this isn't a new topic, but why don't we have a Software Engineer union? We practice a trade that borders on art, where skill is a highly desirable attribute, but where skilled programmers are chased out by unskilled college graduates and foreigners willing to work for much less money. In any other market, this is unthinkable (think about scabs being beat up by striking truckers), so why do we allow it?

    (besides the actual physical labor of having to hit somebody repeatedly, which would undoubtedly kill half of us)

  21. Another reason for IP agreement... CTA by Anonymous Coward · · Score: 4

    Although there is some component to such an IP agreement that the company wants to own all that
    you come up with when employed at the firm, another reason for incoming IP agreements is to
    CTA (cover their ass's) when being sued by one of your former employer(s).

    With this type of agreement in place, if a former employer sues the new employer for improper
    acquisition of trade secrets, the new employer has a built in defense against punitive damages
    by asserting that it didn't know you were carrying over trade secrets from your former
    employer...

    This way you get all the blame!

    As for work done while employed, depending on where you live, there are quite a few restrictions
    on what your employer has rights to. Basically, in the absence of a written agreement to the
    contrary, for your employer to have rights to your ideas...

    - Work must be done while employed.
    - Work must be in area of business actively pursued by the company.

    If you want to do some stuff on the side, in order to protect yourself...

    1. Don't use employer's equipment (otherwize the argument could be made that you were employed,
    even if it's on your own time)
    2. Don't solicit customers who are current customers of your current employer (if they ask
    you first fine, just don't solicit)
    3. Don't solicit employees who are current employees of your current employer (if they ask
    you first fine, just don't solicit). This includes asking for advice, consulting, etc...
    4. Don't do side work with ideas related to what the company is also working on.
    5. Quit before you do #2, #3, or #4
    6. Write everything on the provided form, but give no details whatsoever, and get a signed copy
    of the form... This preserves your rights to IP conceived before employment with their
    acknowledgement. Turning the paper around and making them sign it let's them know you're
    serious too... Also mention on the form that you have worked on proprietary stuff that cannot
    be disclosed at this time, but you will inform the company if it starts working in that
    area of any pending conflicts of interest. This give you a bit of wiggle room...

    Also if you have any questions, don't sign anything before getting your concerns addressed in
    writing... Managers and HR flunkies don't have any authority to modify these agreements so they
    can't do anything in writing. You ususally need a VP or Officer to change anything so the
    proprietary non-disclosure wiggle is a reasonable thing to assert if they give you any flack...

  22. Re:Similar Situation (but with bonus 'bad faith') by norton_I · · Score: 3

    Actually his opinion is (more or less) the law. Work you do on your own time is yours, regardless of what the IP agreement claims. And there is no reason you have to divulge any prior IP work, nor do you have to tell them about any projects you work on on your own time during your employment.

    This is not an opinion, it is law. IP contracts that contradict this are illegal and unenforcable. I still would rather not sign something like this, because it would give grounds for a lawsuit to determine whether the agreement was enforcable, and whether you were in violation of it, and I like to avoid lawsuits.

    Second, "wasting" time rewriting software you have done at home is not fucking the company, if it your job. If you hadn't already written it, you would have to do so on the companies time anyway. Now, if they want to accept the license you released your code under (including restrictions about licensing modifications), and not have you redo the work, that is fine, but if they don't, they are fucking themselves.

    On the other hand, you DO owe it to your company to 1) make them aware if there is freely available code you can work from, rather than reimplementing something, whether you wrote it or not, and 2) to make sure they are aware of the ownership/licensing restrictions of any free software you choose to modify or redistribute as part of your job.

    Now, an entirely different issue is non-compete agreements. If, while employed by a company, you choose to work on something substantially related to your job, you would need to verify that you weren't violating your non-compete agreement. Since most non-compete agreements only seem to deal with commercial competition, as long as you don't sell or otherwise profit from your work, I bet you could slip through that loophole, but I imagine companies will be catching on and filling that one in, as well Non-compete agreements do not cover work you did before joining the company, though, and do not grant ownership of anything to the company.

  23. Malpas' story by xDe · · Score: 5

    Seems to be the one here

  24. The link to the full story by |guillaume| · · Score: 3

    The full story is here

    --

    give me all your garmonbozia

  25. Definition of invention? by IanA · · Score: 4

    If I have created a Linux distro, and join a company, is this an invention? What qualifies as an invention?

  26. Trainee lawyer misunderstands real life? by alienmole · · Score: 5
    I take it you don't work as a software developer, and haven't been on the receiving end of legal bullying tactics in this area.

    The reality of these agreements is far, far from their apparent legal intent. The reality is that companies who are concerned about IP in this way ant just one thing in practice: to maximize their ability to have an apparently solid basis for lawsuits, in order to be able to gain injunctions and other "remedies" against parties which are capable of competing with them. On the surface, this might seem reasonable, but in practice, such claims are often very unsound, and could often be successfully challenged in court. However, employees and ex-employees typically do not have the financial and legal resources to fight such cases. As a result, what companies really gain by these agreements is a strategic edge in the game of "my overall legal position is stronger than yours", which allows them to bully ex-employees into not doing anything even remotely close to competing with them, and in some cases not even pursuing ideas that the employee had prior to joining that company.

    Also, as to your assertion that most of what programmers do doesn't qualify as "invention", try telling that to the Patent Office! Unfortunately, the legal environment is currently such that you can get a patent for many, many things that to any reasonable person, should not qualify as an invention. As such, it is dangerous to sign away rights when in fact, your dumb idea about using a single button-click to place an order on a website could in fact be incredibly valuable IP, in this distorted Kafkaesque world of VC-funded rich thugs with lawyers.

  27. Read, think, GET EXPERT ADVICE, and only then sign by Bogatyr · · Score: 5
    Rule 1: Some people are good at some things.
    Rule 2: Not all people are good at all things.
    Rule 3: Clint Eastwood said "A man's got to know his limitations".
    Get expert advice if it's important. If you're installing a switch in a network, you'll ask an expert. I have a CPA I trust to do my taxes, I have an auto mechanic I trust not to gouge me when fixing my cars, I have an agent for my book cotnract negotiations, I have an attorney I trust to have my interests in mind when I ask for advice because I'm not as good at what they do as they are, and I acknowledge that.

    If you're signing a legal document, get advice from a lawyer. If they won't let you get legal advice before signing (as in claiming the document is "company proprietary" or some similar excuse, they may well be sneaking something into the document you wouldn't like.

    When a company was trying to hire me a short while back, I was handed a several-page IP agreement at a company that wanted me, that required me to list everything I'd ever done, and that any innovations, to prior work or not, done during my time of employment, whether on or off worktime, belonged to the company. Their attitude (it was a small and privately owned, but very well known Java development shop) was they'd "been burned" in a previous business by one of their guys leaving & stealing everything, so they were just protecting themselves. This agreement was significantly farther-reaching than I felt comfortable with, and was one of the several reasons I became convinced I was dealing with untrustworthy and unethical people - we parted ways shortly thereafter.

  28. Corporations like those who are ignorant of law by Skapare · · Score: 4

    One thing I have found is that many corporations tend to avoid wanting to hire or do business with those who have a strong knowledge of their rights and the laws regarding those rights. Part of that is fear they will be sued, even if improperly. I recall the case from California of the lawyer who was denied the right to purchase a condominium (I believe it was) simply because he was a lawyer, and that lawyers tend to sue the sellers (who probably are also lawyers) more than the average person would.

    Part of the problem is poorly written law. There are many cases of improper lawsuits. But there are also many cases where proper lawsuits get tossed out because the law doesn't allow them (legally tossed out, but not right). OTOH, legislaters tend to dislike being too specific when they write law. I tend to think they are mostly incompetent at writing law.

    Anyway, showing your knowledge of law and rights could very well be a turn off to employers and corporations. But then, they do tend to see most people as suckers. Maybe if you become and independent corp-to-corp contractor, you'd be in a better position to negotiate these things, and on your own terms. Just wondering.

    --
    now we need to go OSS in diesel cars
  29. A good firm will be flexible, but... by Gorobei · · Score: 3
    Most of these IP agreements imply that you are dedicating your efforts to the firm. If your goal is to earn a living while working on the ultimate open source X, then you and your employer probably don't have a meeting of minds: are you being hiring for working hours (sorta consulting), or for inventing things for the firm? The former is worth about half of the latter: do you and the firm agree on what you role/responsibility is?

    My current employment agreement gives all my work to my employer: this is fine by me... I'm expected to be working for the firm's benefit whenever I write commercial code, and the firm compensates me very well for this. I'll consult the firm's lawyers before I release any GPL code.

    My previous employment agreement said something like: "I warrant myself to be an expert in the following specific areas. I'll work on your stuff full-time. If I leave, I keep my brain contents, I take no physical stuff. I'm an expert, I've thought about most things: if you have a specific idea, I'll sign a non-disclosure concerning it. If your idea was already published, I'm free to reuse it."

    At my first job, management tried to make everyone sign their invention rights away "in exchange for future compensation and employment." I refused to sign: when the president eventually demanded I sign, I pointed out that he could fire me without cause anyway: fire me or go away. I never heard anything about it again.

    Don't be afraid to explain that you know about a lot of stuff, and will continue to learn more. A lawyer wouldn't sign over the rights to her incremental general knowledge gained for working on a specific case. Why should they expect you to? Note that this is not the same as specific knowledge about the case: this is a reasonable area for non-disclosure.

  30. Stick to your guns by Salamander · · Score: 4

    I've actually had to think about these issues quite a bit lately, for reasons I'm not comfortable disclosing, so I have a few observations that others might find interesting:

    • In the most general sense, claims regarding specific inventions in which the employer was not involved (e.g. prior to employment) are not enforceable even if they're in the employee agreement.
    • However, it can be more difficult than you might expect to prove that a specific invention was in your possession prior to employment. If you don't have something written down and in the possession of people you can count on to testify as to its provenance, you're on dangerous ground.
    • Ideas tend to get entangled with one another. Even if you can prove ownership of one invention, the employer might come at you with claims regarding related or secondary inventions. The burden of disentanglement will be yours, and a sufficiently determined employer can sometimes rule out all possible expressions or means of implementation even while ceding ownership of the core invention to you.
    • Beware the "doctrine of negative knowledge". This is the idea that, when you try to do something, you quickly find out many wrong ways to do it; this is called negative knowledge, and it is the property of your employer in the eyes of most courts. Jeff Merkey of Timpanogas Research Group is a well-known victim of this doctrine, and Novell vs. Timpanogas is a case with which anyone interested in intellectual-property law should be familiar.

    In short, then, you can often win a battle over an invention but still end up losing the war. If you think you might ever want to work on something on your own that is in any way related to what you do at your job, make damn sure you know exactly where you stand with regard to these issues.

    --
    Slashdot - News for Herds. Stuff that Splatters.
  31. Proof: IP violates civil rights by perdida · · Score: 5


    When it came right down to it, my list of "inventions" looked pretty meager. These "inventions" are not really inventions at all, but rather extensions and adaptations of publicly available software. Using the word "invention" to refer to such extensions is unfortunate; it is an attempt to impose an ownership structure onto software ideas, and contradicts my experience of how software development really works.


    One of your civil rights is the right to practice your trade, unless you are breaking the law while doing it. Just because a stupid law comes up that interferes with your trade, doesn't mean your rights aren't being violated either.

    Just because corporations would like to change the way most software gets developed does not mean they can hamper the intellectual inquiries of individual software developers in order to glean off every iota of their creativity.

    Not free speech case- civil rights case. Try litigation under this approach. Or, does anyone know if such civil rights approaches have worked with intellectual property cases?

  32. How I've tried to get around this.. by Anonymous Coward · · Score: 5

    I've faced exactly this situation. I believe I may have a solution..

    Before I begin work and sign at a new company, I assign all property rights to my Mother. Yup, good ole Mom.

    So on paper, she has an *exclusive* license to the property. She can license, sell, assign, etc atany time. I can't sell my own code without herpermission. However, I can revoke her license to these properties at any time, but only in writing.

    This agreement includes a very broad disclosure of 'properties of interest'. The 'properties' range from mere ideas to actual programs. Obviously, these sorts of disclosures and contracts should never contain trade secret info.

    This agreement came up 6 months into my employment with a certain large and litigious e-commerce company.

    A few months before I started working, I documented a decent internet business idea. BTW, I get paid for engineering, not business ideas.

    Six months into my employment, I went up the channels to see if we could make use of this idea.
    Of course, I ended up in legal.

    They weren't very cooperative, mainly because they they thought they had me by the balls. They basically wanted me to just give them the idea (since I "couldn't do anything else with it anyway")..

    Knowing that wasn't going to happen and that the discussion was going to go nowhere, I told them that I'd already assigned all rights to the idea to my Mom for safe keeping prior to my start date.
    And she could sell to anyone.

    At that point, the VP of legal became very aggitated and asked her patent clerk/ip-guy if he knew anything about that. He did not. They decided that they were 'very exposed' and ended the meeting. They didn't really want to talk to me much after that.

    I just hope my Mom doesn't have another rummage sale..

    Are there any attorneys who would like to comment on such agreements?

    Thanks,
    Legal Hack

    freelunch@hotmail.com

  33. Run Away, Run Away! by Skapare · · Score: 5

    If a potential employer wants any rights in anything you do that is not done on their time and won't remove such a clause, then you need to Run Away, Run Away!. Even if they do remove it for you, you might be working with other people for whom they have not. Even then it could be a very bad situation.

    I do think an employer has a right to make sure you are not stealing their ideas (including those they have paid you to create for them) for your own private benefit. A mechanism for them to be confident you are not doing that is something you and they will have to agree on. Be sure to agree on it in advance. Maybe sure your entire agreement is concluded all at once as they may no longer be interested once you have agreed to their terms and are trying to negotiate your terms afterwards.

    And, BTW, IANAL, though I do have one. You have to get your own.

    --
    now we need to go OSS in diesel cars