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Does Drawing on Experience Infringe on Other's IP?
Daniel Paull asks: "I recently asked one of our developers to draw up a design for a specific component. After a few hours he returns telling me that he'd solved a very similar problem a previous place of employment and that they had developed a "neat" solution. The developer then became concerned that a ground-up re-implementation of these design patterns and principals may infringe on the other companies intellectual property or breach some copyright laws. This developer is talented and experienced - that's why we hired him. The question is, at what point does 'drawing on experience' cross the line and invade others IP?"
It's breaking the law when the lawyers say it is.
So, is like Ask Slashdot now the Free Legal Advice Center or what? Doesn't your company have any lawyers of your own?
All movements for social change begin as missions, evolve into businesses, and end up as rackets.
Boy, I should have been a lawyer, at leats I would be in a position to properly defend myself.
when he knowingly violates a patent.
There's no need to reinvent the wheel every time a new problem must be solved. System architectures, code implementation, design diagrams.. all these build on previously established models. It wouldn't be possible to develop a program if each time you solved a problem, you had to implement the solution in an entirely novel way...
Moderation totals that amuse me for one of my posts: Flamebait=1, Insightful=2, Funny=2, Overrated=1, Underrated=1
The answer depends upon way too many variables that aren't supplied within the question.
The answer to this question in any form is way too specific for certain circumstances to be answered in the general case.
Did the last company file a patent on the method? Does the last company view the solution as a trade secret? How 'obvious' is the solution to someone skilled in the field? Etc, etc, etc.
It almost sounds like a reverse engineering of it, without the exact code base, its not an exact copy of it.
But it would have be carefully thought out.
but i already solved this conundrum in a previous contracting gig and i'm pretty sure it would be an IP violation to re-post it here.
lysergically yours
My previous employer made me sign a statement that I wouldn't work for a competeing company for several years after leaving their employ. Needless to say, for some fields it would mean that you can't find work at all... I'm sure that if challenged, you could beat that prohibition in court, but it's still pretty scary sounding.
Don't anthropomorphize computers, they don't like it.
Now that I consider it, it seems quite likely that this could have an effect on open-source software.
Much of the open-source software is coded by employees of corporations. Those corporations have very restrictive policies concerning intellectual property - effectively, everything you think of while working there is their property.
What effect might developers' previous experience and thoughts have on open source software, and can it be in legal trouble because of this?
It would be a tragedy to lose many corporate free-time developers because of corporate-owned IP.
if it's truly a "ground-up" reimplementation, and assuming that you don't have any code in common with the original, isn't it basically a "cleanroom" design, held by the courts not to be infringing (a la VirtualGameStation PS emu?)?
IANAL, so i'm probably totally wrong, but it seems worth a shot...
Facts do not cease to exist because they are ignored. - Aldous Huxley
Possible simple solution: have him describe the implementation and let someone else acutally write the code.
I think this is highly dependent on the business. If for instance someone designed a product and you hire away one of their engineers and he reimplements the product for you then I think the other company may have grounds for a lawsuit that you violated their IP. However, if you core business is say a process... such as accounting. An you hire a software engineer away from a company and he completely reengineers there stuff then this is if perfectly fine as long as he didn't sign a contract with that company stating explicitly that he wouldn't do that. I think it really revolves around whether that companies core way of making money is their IP. If it's not then it is just competitive advanatage that you stole from them.
... but I stayed at a Holiday Inn Express last night.
But really, since when did "Ask Slashdot" become "Free Advice for those who don't want to ask their Lawer?". Talk to your lawer and see where you really stand (or at least where your lawer can defend).
Is this really a good place to ask this? I mean, of course it's relevant, but considering, this place is frequented by 'free' everything loving, and oftentimes quasi illigal information (programs, music, vidoes) trading, people, and only a few more legally minded people, what kind of a response do you reasonably expect this to get? Lots of "Of course it's not, that's silly!" and "I bet it is illegal, bit it shouldn't be, stupid DMCA" and so on comments, and very little that will really answer your question. Not trolling, just asking, why would someone want to ask this question here, of all places?
Correct me if I am wrong, but this means that every time you change employer, you should have all experience from programming removed from their head.
Without learning and gaining experience, how can we get new kick-ass software?
This is sort of saying that "we want you to work here but when you leave I want you to forget everything you said and did".
With laws like these, you don't need a new job; you need a new brain after you get fired.
Just sounds stupid to me.
Medevo
come on. even if this guy does use designs used previously, how in the world is anyone going to find out. do you really think that someone is going to be that interested in this component that they will disassemble it and examine it? then they would have to compare it to their code and if they think that some sacred principle has been violated, they would have to instigate a lawsuit. please, give me a break. just design the thing using whatever makes sense and let the lawyers worry about it later if it ever comes to that.
Somebody better hurry up and kill the lawyers while there's still an ounce of creativity left in this industry.
MSBPodcast.com The opinions expressed here are my own. If you don't like 'em... Think up your own stuff.
Intellectual property is just an artifact of one of the horrible realities we all have to live with:
the world has too many damn attorneys
In fact, he went home, devised a solution, and then told you that his prior company had IP rights to the solution so that he could go behind your back and sell it himself.
I am now, a Sr. Network Engineer. But before doing this, I have been everything from a system admin, to a security engineer, to a coder/developer. For me, drawing up on past experience is a total necessity because in the time I've been doing this, I *HAVE* seen it all.
From recreating scripts to poll routers, to re-writting perl scripts that poll servers, this is all stuff I've seen/wrote/used before. And even in a larger magnitude, setting up policies or procedures for doing things which I implemented elsewhere. If *I* came up with them, why should someone else tell me I can't use them because I came up with them while I was employed by them?
Sorry, that would be infringing on my ability to earn a living.
---
IANAL, but if I were, we'd all be in trouble!
You need to ensure that the previous company doesn't hold any patents on it. You also need to consider whether the employee may have signed a confidentiality agreement with the previous company. Finally, if the previous company is not a direct competitor it probably isn't going to concern them as much as if they are an arch rival. Similarly, if it isn't a core component of the product it probably won't concern them as much as if it was a key competitive advantage. Otherwise, I think as long as it is built from scratch (i.e. no code, design documents, etc. from previous company are used) and it is developed solely based on experience I'd think you would be safe.
You kill all workers involved in the construction of your secret lair.
where you used it, you're infringing. When I come up with 'neat' solutions for my customers, those solutions belong to them, not me. If I can't create a new solution without using a significant amount of an old one, I reject the assignment and suggest someone else for it. If I even THINK I might be accidentally reusing IP, I back off. The risk to the customer is too great to play "maybe it won't be noticed" games.
This doesn't mean i agree that the first customer should have exclusive rights, only that I recognize the way things work in the real world.
What? You mean your employee didn't have his brain degaussed at the exit interview, per company policy? ;{)
Learn from the mistakes of others. You won't live long enough to make them all yourself.
(See subject)
42
Translate: "I'm afraid that if I help you with this solution, I'll be violating my previous employer's intellectual property rights."
as:
"I know you hired me because of my work in your field, but frankly, I'm lazy. I can't surf porn and read messageboards all day if I'm working on this solution for you. Here's a tidy excuse so you can feel better about the money you're wasting on me and my blatant goofing-off habit."
The next Slashdot story will be ready soon, but subscribers can beat the rush and slashdot the links early!
Well, let's draw on other industries here.
When I worked for a good-sized privately owned oil change shop we had what they called "Procedures". The book of Procedures was treated like an addendum to the bible, or replacing it entirely. A buddy of mine that worked there left to work for a competitor, but he continued to use the Procedures, and to implement many of them in the new shop. However, he made changes where he thought they were needed, dropped some that made little sense. Otherwise, though, the shop did things the "" Way.
Now, this is different than blatantly stealing the stuff because he used the methodology, rather than a straight-away rip-off. He could have taken a copy of the procedural guidelines to his new job and just told them to use it. That would've been theft. However, he took them, and in his mind, enhanced them. Also, he made situational changes for implementation.
Now, if you write a program for one company, then leave. You go to another company. The new company now needs the same problem solved, so you write ANOTHER program. The nature of a problem and a solution is that frequently the solutions people come up with are very similar when applied to the same problem.
I'm not even approaching the sense of patenting algorithms. It makes as much sense as patenting a philosophy and requiring everyone who agrees to pay royalties. So, whether the system works the way I think it should I do not know.
Dave
I would like to see my ex-firm and their lawyers do that.
Hey, I still have to use the same constructs while coding. You cant expect me to stop using the "switch" statement once and for all.
Rapid Nirvana
First, IANAL.
Copyright does not apply to ideas, it only applies to the tangible representation of those ideas. Only using a patented process would be infringement, and given the state of patents these days, perhaps that would be a place to start.
Nevertheless, it is very unlikely to be a problem. Absent an enforceable NDA or non-compete, former employers' legal influence ends when the clock is punched.
The answer is, at the point that your attorney tells you that it will. Seriously, this is a question for an attorney. You've clued into the fact that it's a legitimate legal question, so go ask a legal professional.
However, I also don't like re-inventing the wheel, so I keep copies of my code so I can go back and reference it. I can't keep all that in my head; that's what hard disks are for. Some solutions are specifically for whatever company, but something like a log-parsing script is going to be useful pretty much anywhere. I keep a lot of "engine" routines so that I can quickly get things up to speed in my new company as needed.
So at what point do I say what is mine and what is the company's? I mean, I wrote my first Perl print statement a few companies back. Does that mean I'm not ever allowed to use it again? How many different solutions are out there? Perl might be about always-more-than-one-way-to-do-it, but I'm only on the planet for a limited time....
"Just because you're a genius doesn't make you a smart guy!" -- Narrator, Powerpuff Girls
If the developer infringes a Patent, that's "illegal".
If he re-uses copyrighted code in breach of the terms of the licence, that's "illegal".
If he merely makes use of what he knows, that's not "illegal".
I quote the term "illegal" here because neither of the first two cases is actually illegal - they're actionable under civil law, usually resulting in an injunction to refrain or damages or both.
If making use of what we've learned over the years was illegal, no-one would be employable after the age of 30.
the day that they put a patent on the memory retention within the human brain is when I feel that line should be drawn. Otherwise, its just like that music industry when an artist signs with anouther label then the previous label has no right to sue for copyright violation. this has already been taken to court with some country singer (can't remember there name right now). But the point is... that you may have designed a system for one company then another company hires you to design a similer implamentation. IMHO its perfectly legal, freelance game programers do this all the time. Then again IANAL
BoB rulZ
Ahh.. The mind what a wonderful trap!
It is impossible to separate knowledge learned from experience from the creative process itself. Creativity is nothing more than placing incremental changes on top of everything else one has previously learned or experienced. Our legal system attempts to compartmentalize blocks of knowledge, and remove them from the common pool of human experience in order to allow someone to capitalize on what is ostensibly their own creation, but is in reality nothing more than a rehash of prior thought.
I know this did not answer your question, but then again, did you really expect an answer?
In general all IP protection mechanisms (copyright, patents, trademarks) are supposed to cover implementations, not ideas. In case of software algorithms things become messy; separating idea from implementation seems to be a hard thing to do (esp. for US pat. office...), but in theory the basic idea should not be patentable; copyright protects specific implementation and trademarks shouldn't be applicable?
Unfortunately, since the decision to allow business methods to be patented (and even when allowing algorithms) the line has become blurrier than ever. :-/
Finally keep in mind that using experiences in itself never infringes IP; at most it could violate his previous job contract (and even that is unlikely to hold in court). I know this sounds obvious but it needs to be emphasised. Thus that person can explain the idea -- patents are not trade secrets after all -- and then you may consider whether the method in question might be protected or not, and proceed appropriately. The exception would be if you were planning to do complete clean room implementation of a system, but that doesn't seem to be the case?
I like paying taxes. With them I buy civilization -- Oliver Wendell Holmes
Under copyright law, only the actual implementation is protected, the idea/architecture is not--that's what patent's are for.
So, bottom line, unless the component was patented by the other company, you can re-implement the underlying idea.
Is the developer presenting the other company's solution as a solution to your problem, or expressing concern that your solution may mimic it?
I'd wonder about your IP in the hands of that developer.
I'd wonder about the company above you, you've now invited the competition to look into your developments for IP theft.
...in his employment contract. Then he might be prohibited from developing competing products. otherwise, it's generally fair game.
It would also depend on whether the technology in question was under patent, copyright, or trademark protection. If not then it is fair game. An exception to this might be if it wasa "trade secret" and the person in question has a previous obligation to uphold that trade secret (e.g, guarding the Secret 11 Herbs and Spices recipe)
- Consult the dictionary frequently to avoid mispelling
NEVER!! this one of the fundamental flaws with IP in general. My experience is my own if I can't use my experience and knowledge at my job what good is it?? my resume may aswell be blank. Fact is I use my experience use the same methods to solve problems at my new job that I used at my old job, do I have to figure out a new way around the same problem everytime I switch jobs? should I be concerned that I'm possibly violating someone's IP everytime I write a line of code? I was hired to do the work I've got experience doing and that's what I'll do.
Good things never end "eum" they end in "MANIA" or "teria"
During the run up to a later conference, I did some reading on material culture literature by a gentleman named Henry Glassie. Then I saw this: "Dates remind us that traditional ways are not superorganic in origin but the product of work in time." I quickly fired up OpenOffice and added an endnote citing him.
I think that is the point where experience can tread on other's IP. He had done it before and it could be reasonably expected of me to have read these seminal works on the subject matter. Therefore, I had to cite to be honest, no matter that I had come up with a similar thought previously and independent of my knowledge of his work.
Comparing it to Windows will be a moot point, since El Dorado is going to have a 40% larger code base than XP.
You own what is in your head -- unless you sign it away, so don't sign anything without reading it first. Most companies require you to sign a waiver saying you won't work in the same industry for two to five years after leaving them. They do this because they don't want you taking all of the good ideas you came up with to the competition. If the guy worked in a different field then you are probably safe (unless you enter that field).
If you hurry up you can still see how they solve this at dilbert's office.
IANAL, but imagine a beowulf cluster of in Soviet Russia all your belong are base to us welcoming the new SCO overlords.
There was a discussion on /. a year or two ago about how to learn programming without copying. One piece of advice was to read through the code/algorithm you're trying to learn, put it away, and try to implement it yourself. Without looking at the original - without 'cheating'. You could try having the developer spec out the "neat" solution, and have someone else implement it. But you still might run into lawyer trouble.
BTW, did the "neat" solution involve anything which was patented? If so, my suspicion of lawyers inclines me to pronounce this method DOA.
Its infringing on someone's IP when the "experience" resulted in a patent being granted on it.
I rejoice that there are owls.
1. The previous company did not patent the solution and the designer has the original design documents.
2. The previous company patented the solution, and the designer does not have the original design documents, and the resulting redesign is not identical to the original.
3. The previous company signs an agreement to allow you to use that idea (nice to have anyway).
4. If the design is used only within the company, and is not sold as a product to others, IP doesn't apply. Unless the designer specifically signed an agreement to never release information about the previous company's processes.
If you are really concerned about this, and a large amount of money is at stake, you are obviously not the person to be making this decision if you have to ask Slashdot. Get a lawyer if the potential losses are great enough.
...
Does drawing on experience infringe on others' intellectual property?
No. Inspiration does not count as stealing. Mind the slippery slope.
--
This kind of question really requires Professional Legal Advice and may depend on the context, e.g. is he reimplementing something trivial like a command line argument parser or something non-trivial like highly optimized kernel code for a specific device? Anywhere as for my opinion, I Am Not A Lawyer (IANAL) but the kinds of IP that matter in this case are Copyright & Patents.
Copyright Issues: If his reimplementation of the solution from his former job is a cut & paste of old code to new then there probably most likely are issues since most corporations own copyright on code written by employees. Reimplementing the same strategies from memory should not affect copyright [unless he has a photographic memory].
Patent Issues: If the technology he worked on was patented by your employee's former employer then there will be licensing issues which depend on how he signed over the patent to his former employers.
There are also the Non-compete clauses in employment contracts which although do not strictly have anything to do with IP law can severly restrict what knowledge you can obtain from him and in severe cases may require you to fire him like in the CrossGain vs. Microsoft situation
Your parents potty-trained you, so no holding it, unless you want me to sic some lawyers on you!
There are two broad classes of problem here: generally protected IP rights and contracted IP issues.
Without being a lawyer, I can tell you that the former issues are generally easy to protect yourself from. If the developer isn't just copying and changing variable names in a copy of the code, then it's pretty easy to defend the idea... until you get to look-and-feel, which is were some really tragic mistakes have been made, IMHO.
However, it's (almost) never that simple. Most everyone signs a non-disclosure and/or non-compete of some sort, and that's a relatively unique contract that a lawyer will have to analyze on a case-by-case basis. I'd say that no company should ever hire anyone who is encumbered in this way, if the practice hadn't somehow become wide-spread. It's just insane that you never know what your employees are infringing on unless you have a tech-savvy lawyer sitting over their shoulders with copies of every NDA/NCA they've ever signed.
There are limits to what rights you can sign away, but those are getting thinner and thinner....
Check out my new resume!
Objective:
To put my skills in [UNIDENTIFIED DUE TO NDA] to develop a new plan to [UNIDENTIFIED DUE TO NDA]. My experience is perfect for your application.
Job Experience:
3 Years at [UNIDENTIFIED DUE TO NDA]. My job was to [UNIDENTIFIED DUE TO NDA], [UNIDENTIFIED DUE TO NDA], and I also created a new system of [UNIDENTIFIED DUE TO NDA].
Job References:
[UNIDENTIFIED DUE TO NDA]
[UNIDENTIFIED DUE TO NDA]
[UNIDENTIFIED DUE TO NDA]
:)
"Derp de derp."
For me, the answer comes down to the difference between 'experience' and 'proprietary knowledge'. Experience comes from being given a problem and designing/creating/inventing my own solution/implementation. Proprietary Knowledge comes from looking at or learning about a solution to a problem that I, myself, did not create but exists within the organization I belong to.
In other words, did the developer 'experience' the process of developing the solution the first time, or 'get' the knowledge from outside?
Of course, this has to be tempered with the 'obviousness' guide that the USPTO seems to like to ignore. I mean, there are only so many different ways to implement lots of common components (how many times have you implemented an RTC based on a periodic interrupt?), and regardless of who developed the solution, I don't think any of them really belong to any organization as "proprietary IP" because they are too obvious. (In the language of the USPTO, they fail to be "novel").
It's a difficult balance. Unfortunatly, the only "official" guidance on the topic comes from patent-infringmenet lawsuits, which are just so much fun... :)
Matt
Unless they've patented a specific algorithm, .. there are enough rabid ;)
.. take the money and run
I'd think so long as you have a complete
re-implementation of the same method, you'd
be safe. Shhhh
lawsuit-hungry companies out there - don't
fuel them
go on
There are two cases where an idea may infringe on another's IP: patents and trade secrets. Copyrights would cover the actual code. Even if the code is the same, if you can prove that you re-implemented it instead of copying it, you will win in court. If you're really doing a back box reimplmentation, you are not infringing on copyright. The other class of IP is trademarks, which are even more specific. Trademarks cover symbols, likenesses, etc. Ideas and code cannot be trademarked.
Now, back to trade secrets and patents. Patents cover abstract ways of doing things. If the idea your engineer came up with is patented, you are infringing. However, patents are in the public record. You can search for existing patents on the PTO's web site. I don't know if these are up to the minute or not. If you have reason to belive that an idea is patented, it's probably best to pay your lawyers to look for you. They're probably better at it than you and have better sources of information.
Trade secrets are a bit murky. Trade secrets are quite broad. The only restriction is that they are secret. Things that can be neither copywritten, trademarked, or pantented may be trade secrets. As far as I know, if someone reveals a trade secret to you, you can use it. It is the act of revealing the secret that is illegal. So, if you ask the engineer if he may reveal the solution to you, and he says yes, your company should be covered. (I think that if your company asks him to reveal trade secrets, then your company is at fault and is open to prosecution.)
Note that IANAL, and my knowledge of trade secrets is a tad on the sketchy side. As with all legal matters, the person to ask is a lawyer, etc.
If you are bothered by this kind of worry load you need a vacation. This kind of "we need to guess what the lawyers might say" nonsense really irks me.
If you are truly concerned what people have learned from previous positions will do to your company, I suggest you start a training program... with children. If you dont follow such a radical plan you may find yourself in legal trouble with parents and educators. After all they help teach the youngster everything they know. Can you imagine the intellectual property rights on all that knowledge. You might in court for decades over something like this!!!
The wages of sin are unreported and back taxes are hell to pay.
If you couldn't draw up the knowledge of any past experiences used in employment you would have to work for the same employer from the time that you started coding.
From my limited knowledge of this type of IP law unless it was covered under at patent and as long as YOU DON'T USE THE ORIGINAL SOURCE code you are going to be fine.
Also If this was true M$ would be in some large trouble remember when they were taking a large number of developers from Oracle and other competing companies and having them work on directly competing products? I think that Sun or Oracle would of sued Microsoft if they could have had a legal leg to stand on!
Personally I had to sign a contract stating:
"That any development disclosed by the associate to a third person within six months following the period of employment with the company shall be presumed to have been conceived or made during the period of employment with the company unless proved to have been conceived and made following the termination of employement with the company."
Technically it's meaningless because my current employer wouldn't know if I gave secrets to a new employer but it's all that legal crapola.
Of course it also boils down to your own personal ethics. You should know where to draw the line. Now if you've created some incredible 500:1 lossless compression technology and you start at a new company that's try to create compression alogorithms then obviously you can't give them that formula. It all depends on a variety of variables that the poster didn't elaborate on so I don't think anybody here can give a definite answer.
The rules for this sort of thing are in the employment agreement which usually has some NDA-style clauses. Basically, the corporation would try to treat this as valuable company documents, despite the fact that the documents are written on your memory. If the contract says nothing about it, then yippee, you're allowed to remember how you solved the problem a year ago. Otherwise, you abide by the contract. Contracts suck.
Save time now so you can waste it later
IANAL/TINLA.
Patterns, algorithms, methods, and logic cannot be protected by copyright, only specific and unique implementations thereof. Patents could protect such ideas but rarely do and certainly your guy would know if his employer filed a patent based on his previous work. The old standby of "proprietary business knowledge" must be a closely-held (formally secured) asset to be protected, and must be novel (i.e., not simply based on common knowledge--pretty difficult to do in our field).
Lifting code written at a previous employer, however, would probably cross the line. Even there, though, there is a large grey line of "inevitable discovery" (to borrow a prosecutorial term)--a sufficiently elegant algorithm (written for efficiency and refactored through the course of testing) will always result in nearly identical code (variable names notwithstanding, of course). This wouldn't be the case with more artistic endeavors (e.g., screenplays about the same concept can vary widely in implementation), but it is true in computer and information sciences.
Using actual proprietary documents, design or otherwise, as a basis for developing the new product is very bad. However, if you are only using whatever is stored in your head or published in textbooks, you are perfectly within your rights. The exception to the rule is whether the technology was patented. Ideas may be patented and they may be developed off of AS LONG AS YOU CONTACT THE PERSON HOLDING THE PATENT and work something out.
The basic rule is sort of a balance between preventing a previous employer can't keep an employee from making a living and preventing an employee from taking intellectual property which he has legally agreed not to disclose outside the bounds of the agreement, i.e. "stealing the technology" from the owner of the IP.
As a programmer for hire/consultant on WinXX boxes, I have often implemented the same exact solutions for a subsequent customer, but not once have I used code from a previous project, because my particular agreements state that any code I wrote belonged to the company paying for my services.
On the other hand, all of my Linux code is inherently reuseable (none of it currently in the wild, by the way -- too limited in scope for wide use) because of the GPL, which implies that I can use the exact code in a later assignment, and anybody who uses my code can do the same thing -- so long as it remains GPL.
The final rule I use to protect myself is, "when in doubt, ask." Ask the former employer, or the current company's legal counsel, etc. The ass-u-me principle, ya'know.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
Copyright is on the text of the code, if he doesn't copy the code, there is no copyright problem. If they don't have a patent, then you don't have a problem there either. You can't really Trade Mark code.
So I would say, no patent and fresh code == no IP problem.
Again IANAL.
Normally, I'm not one to point out typos, but this one is irritating me. It's not "lawer," it's LAWYER. Say the word slowly... hear the Y?
Unless he's working on an open source project, who's really going to know? Even then, I think it would only be bad if he used that copy of the code he saved to floppy before he left them.
I'm not even going to approach the patent aspect, since the question wasn't about violating a patent. Is there a good legal definition of Intellectual Property as pertains to Information Technology?
It's easy to stand out when the general level of competence is so low.
Implementing the same or very similar design which he helped to design at another company would certainly be immoral if not infringement. However, if the engineer (?) wants to apply the thought process which he used to solve a previous problem that should not be infringing at all. That thought process is his personal possession which cannot be copyrighted or otherwise. Attempting to take control of someone's thought process would be a very slipperly slope and I doubt the courts would allow it. The previous company owns the designs which were implemented not the thought processes that created them.
More information is needed about how the previous design was created (was it with a team or ??) in order to render good judgement.
*please excuse my assumptions of a male engineer. It was made simply for brevity in writing this comment.
We should kill any lawyer that uses the term IP.
What if, upon accepting the services of an attorney, you agree that any and all documents produced will become your property? Obviously, the likelihood that this would ever happen is next to none, but I do think it illustrates the futility in some sense. I think companies should be able to protect their trade secrets (and their methodologies), but I also don't think it's reasonable to expect people to trivialize and/or marginalize the value offered by their collective experience. The attorney wouldn't blink an eye before showing you the door- so why is it reasonable to expect anything different from an experienced programmer?
Do we need any further proof that the current state of intellectual property law is hindering, not helping, advance technological progress? I mean, the whole point of this was to make sure people were compensated enough to make innovation beneficial. Now we can't even breathe without someone saying, "I say, I took a breath like that once--I think you may owe me a billion dollars for violating my intellectual property rights."
Read Bujold. Free (as in
And thus is answered the age-old question, 'does God read Slashdot?'
;)
Well, I am not God, but I do play God at work..
---
Universe, n.:
The problem.
I'm such a hypocrite. I can't stand how cynical and anal most of the slashdot readers are, atleast the ones who post flames and trolls that get +(integer) funny. The post shouldn't be taken so seriously as an ask slashdot, but more of an awareness bringer. When reading it ask yourself how many developers have signed IP contracts with previous establishments, then asked to resolve similar issues? On a note you should warn your employee's, then ask your own lawyer.
--fetch daddy's blue fright wig, i must be handsome when i release my rage
This seems to be a recurrent point in a lot of employment contracts I've seen - that the company owns everything you come up with in perpetuity and you're not allowed to use it for anything else. Even when that 'thing' you have come up with is an idea. If I wake up at 3am with a 'eureka' solution to a problem I came across at work then who owns that solution?
How long is it going to be before a frontal lobotomy is an integral part of the exit procedures from an IT job, or are we going to end up with another dilbert-as-reality situation?
Silver
I've written a lot of code at my current company to solve certain problems. Now, that code is riddled with my company's copyright headers and such. I can't take that code home, write my own shareware or open source applications with it. I can't take it to my next employer after I get fired for writing this. But, I've solved the problems once. If I end up facing the same problems again, I will most likey solve them the same way. Unless someone poses a better solution.
It is a fine line. Is the technique patented? If it is, you may as well bend over. Is it generic enough to be used in completely different domains? For instance, an inter process communications layer that supports a domain specific application vs. a domain specific application. A company may consider their signal processing algorithm IP but maybe not some generic layer used to pass the signal data between processes. If it's not unique enough to the domain, it would be tough to claim it as IP (like say a socket wrapper class).
IANAL. That's who you need to talk to. I'm just giving my $0.02
Ascalante: Your bride is over 3,000 years old.
Kull: She told me she was 19!
Sue me!
My name is Daniel Paul from Fractal Graphics">Fractal Graphics. I'm pretty sure I'm about to commit some type of IP violation of another company. So, I'm posting this on Slashdot the only place where a web site/reader confidentiality rule exists. So please send your free legal advice and subpoenas to:
Fractal Graphics
P.O. Box 1675
Western Australia 6872
or just email me at:
daniel.paul@fractalgraphics.com.au
Next time I will ask my manager before I reveal possibly damaging company information to the public.
No, seriously.
If the guy can't or won't perform on assignments you give him, then fire his ass and hire someone who can and will do the work. It's real simple.
All you have to do is compare the public opinions of the States' lawyers with those of the Microsoft lawyers and you will realize that you can just punt.
/. even if the poster is a lawyer.
But, it is not too hard to understand that some things you must just stay away from. Examples are "copying large quantities of code or designs". Now to some that may seem obvious.
But, I recall hearing from engineers in the late 70's that if you look at the schematic of the original Apple what you see is the schematic of the HP 2640A Communications Terminal (which sported an Intel 8008 chip). And, yes, had RAM and a display as well as communications. Now, who was that fellow, anyway?
The point here is that an awlful amount of work has been shared around Silicon Valley for years. Some of was legit. And, some was not.
But, in any particular case, if you are in doubt, by all means contact your legal counsel and get some guidance. Failure to be upfront with your own lawyers is only likely to get yourself and your company in hot water.
What ever you do, do not rely upon general information or discussions you may hear on
NexuSys - Linux support by the best
to shortly put it, if they don't know then it won't hurt you. Considering most companies that get rid of workers, rarely spy on ex-employees, unless it is like a military establishment.
Most businesses don't care if you take something and put it to other business, as long as you don't tell them. If you confront them with it, then obviously it is worth your time talking about it to them, they will want to charge you for it, negotiate whatever. However if its a small part of product, hidden underneath, it does not matter.
Business is dirty thing, for business it is in most interest is to collect most amount of dollars expending minimal effort. So if you work for large company and you used to work for small one. Previous company may demand large dollar amount, so to sustain their business. But if they see that company does not really have much money, they will not attempt to waste time, they are in business in the end of the day.
So I'd say don't worry about it, unless you are gonna upsell feature as one of the 10 top reasons to buy solution from you.
In this case, you could probably apply the Patent Office's guidelines on what is patentable (i.e. innovation, non-obviousness, etc.). Of course it recently seems that the Patent Office has been ignoring these rules themselves, but they are a starting point.
Another question to yourself could be is the old company ever likely to notice or care about the use. Chances are the suits in the company are never going to notice the cool hacks internal to their software well enough to recognize them as a resource worth defending. In most cases where they would, they probably try to patent everything as they write it. Noticeable external features are another story, of course, but implementation methods are often below lawyer radar.
Also, if it an implementation detail, the odds of them knowing it is present in your product without source code is slim, so if they do decide to patent the technique, you should at least have time to respond.
... are best served with a side of teacher. Just like Lunch Lady used to make. No substitutes please.
IN TEH FUCHAR, LITERSY WLIL EB OPSHANAL!!!!!111
But you should go back there. Looks like you slept through it.
The 'Y' is not silent in "lawyer". Loi-yer. Yuh. Yuh.
So should HP (who ate Compaq (who ate DEC)) try to sue MS who hired Dave Butler away from DEC for inflicting the world with NT and NT's offspring?
IANAL, but at least in California (and, I hear, many other states), the legal precedent is that any IP an employee can carry in his or her mind, that employee may then freely use in any further job regardless of NDAs or the like (which thus become unenforceable in this regard). Patents, being federal law, would trump this, but that's about it.
If you're asking this for anything other than a legal perspective, then you're a nut who hasn't learned the basic truth of hacking that "It is right, good, and proper to share cool hacks." But if you are asking from a legal perspective, then why ask us - get a damned lawyer.
bah
think of it in terms of video games... you have mario, sonic, bonk, etc... all side-scroller games.. only real difference is the graphics, target platform, maps, etc. other than that.. then engines would look almost identical.. and yet nobody in that industry has gotten in trouble for copying the idea for the game...
same thing with FPS games, tile based RPG's, etc...
i'm sure of all industries, the gaming industry has the most secrets and patents...
and i'm sure there has been a lot of cross-breeding of employees between the companies...
As long as you're not violating any patents and you're not copying code or using the other guys' formal design.. I say it's fair game...
I dont have too much experience under my belt.. although a lot more than most people my age... but i've used previous experiences from other companies to implement new systems or projects on MANY occasions...
then again.. i'm no expert in law...
and unfortunately.. the world seems to be run by lawyers these days... (and it has been since forever)
p r m t h s
at what point does 'drawing on experience' cross the line and invade others IP?
IANAL, but if the IP in question is a copyright, a ground-up build should keep you in the clear - unless someone's memory is so good he's just re-typing the same code as at his old employer. That's pretty unlikely - if he's anything like the rest of us, he'll have enough things he thinks he can do better the second time around that it will come out substantially different.
If it's patented, watch out. You can infringe a patent just by independently discovering a similar approach to the problem.
Finally, the former employers may think the stuff your new employee learned is a "trade secret" that belongs to them. This can be a problem only if the guy signed an NDA or "non-competition" agreement, but a lot of companies do slip that in among all the insurance forms on the first day at work... State laws limit the length of time and breadth of coverage allowed in these agreements, but each state is different, so get a lawyer expert in the employment laws of the state(s) involved.
Another perspective is what is the probability that your employee's previous employer will litigate, how much will this litigation cost, and what are the probable outcomes of litigation. How much would it cost your competitor to litigate, is it worth it from their perspective.
;O
Will this novel solution _actually_ increase revenues or reduce costs (extrapolating, it seems that this solution reduces maintenance, and speeds up development time, thereby increasing revenues via time to market advantages, ie increased market/mindshare, greater net present value of revenue, etc, and decreasing costs by reducing maintenance)? If not, it may be more costly to not err on the side of caution.
Just remember, competitor's steal IP from each other all the time, it is taboo in business by any means. Dare I say Microsoft is a sterling and clear example of this principle in practice.
Just remember the cardinal rule of being a capitalist : maximize profits; Be a pig
is that you have a job that needs to be completed and you hired this baffoon to complete it for you. Tell him that here is your problem and that he has until close of business to produce a written report discussing the solution. Everything else is not relevant to you, you hired him for his past experience.
How many students get bad grades because their code is too similar...
If they don't have a patent, screw em. If they do, screw around em.
Forget all above posts about consulting your lawyer. Just implement the damn thing. How is your previous employer going to know what you're doing at your current gig? Obviously, I don't know how sensitive or widespread your project is, but I do know that projects guided by legal and marketing departments become crap.
You cannot give legal advice in a vacuum. Each legal problem is highly fact dependent. It is easy sometimes to say what the law is (in the sense that you can simply say it is illegal to do X ) but when you try to apply the law to the facts of a specific situation you need to know which facts are important legally, what the effect of those facts are to the law's application.
Hire a lawyer and let him/her make a determination for you in the form of a legal opinion. If you do get sued, you can defend your actions on the basis of your lawyer's advice. Trust me -- the investment today will be well worth it tomorrow in a lawsuit.
Laws affecting technology will always be bad until enough techies become lawyers.
Instead of asking Slashdot the question you did, why didn't you just ask for a solution to the problem. Maybe there's an open source answer out there for you already.
...that posts "Effect on open source?" to every new thread?
Here's my answer: since it's impossible to design anything new without drawing upon past experience and designs (technology builds upon itself), but using past designs will get you sued for copyright violations, IP theft, etc., I think we as a society should simply give up designing anything new.
Sure, things will start falling apart pretty quickly, but that's ok. Even if we end up going back to the stone age, at least we won't worry about violating anyone's precious IP.
Here's Dilbert's solution
As an employee, you are fully compensated for your work. So, generally speaking you do not retain any rights in the work you do.
Now that does not mean you have to forget everything you learn when you change jobs. But, it does mean you have to be careful that you do not infringe upon the IP rights of your former employer.
You do have a right to earn a living. But, that is not an absolute right. It comes with limitations.
Contacting your own lawyer (or companies lawyer) is the only valid approach if you have any doubt about what you can use from prior employment.
And, be careful about distinguishing between what "your rights" might be and what the rights of your new employer might be. They can be different. If you think you retain any IP rights in your former work, a private lawyer would be the appropriate one to contact. Perhaps both.
It is not easy to draw a line between using "your experience" and somehow using the IP of your former employer.
NexuSys - Linux support by the best
After a few hours he returns telling me that he'd solved a very similar problem a previous place of employment and that they had developed a "neat" solution.
At which point you should have covered your ears and said "la la la la la I can't hear you".
Note that some NDA's are written with clauses that the company (or at least the company's lawyers) know are unenforceable. I've seen NDA's where the company claims ownership of any and all music/art/writings as well as any code you produce while an employee, even if you did it off-hours and for personal pursuit... you're obliged to report any such materials as soon as you create them, and any failure to meet this obligation yadda, yadda, yadda...
Although it won't bother them if you come to believe it, they can't really sue you for your diary and your Ultima character. Don't reuse your code verbatim, obviously, and do consult your lawyer, but don't be afraid to do something just because a bogeyman with a briefcase said so. (At least not until you've talked to your own bogeyman).
There is a brief description of cleanroom developing here and a million other places. But, the point is that it is not enough to recreat a system without looking at the code when you recreate it. The coders also have to be clean. They can't have seen the code. They have to recreate the system from the specifications. Sometimes these are specifications created by a "dirty" team. Sometimes they are already public. But, clean room engineering doesn't save energy on development and isn't what they are trying to do here. It is just a way of building a compatible product without infringing. The issue here is how many of your skills can you take with you as a "right to work" issue versus how much does the company keep as a property right. The standards I have seen come down to how important the code is to the company. If this insight is the key to the business model for a product, you can't take it. If it is ancillary, you probably can. But, ask your lawyers. Make it their issue now, rather than later.
Copyright
Does your implementation use any content copyrighted to the previous company. E.g. If you were trying to rid Hamlyn of rats and you decide to lure them with music you would run into trouble only if you didn't use the music copyrighted by Pied Piper Inc.
Patents
Has the company patented the base idea? In our fictional example, if Pied Piper Inc. had patented 'A Method to Lure Rats based on External Auditory Stimuli' then you couldn't make a Rat-luring product no matter whose music you used.
Trademarks
Will you name your product similar to the prior employers? Sticking with our example, if you created your produce and named it Pie-eyed Piper (TM) you'd probably be on rocky ground
If the answer to all these questions is a resounding no then there is no IP law that can be directly applied.
As always IANAL.
Rich
What a totally stupid question.
The reason us software engineers are paid buckets of money is because we are able to demonstrate a history of acquiring new skills when necessary, but equally importantly, being able to apply our existing skills and experience to new problems.
A codeMuppet that was unwilling to do something because he/she had done something similar at his/her last place? Un-fscking-believable.
Job Ad:
Software Engineer required. Total lack of experience preferred, but some experience accepted subject to agreeing never to use it. Salary: anything you want (because we really are that stupid).
...using #include
All your code are belong to me!
If you think education is expensive, you should try ignorance -- Derek Bok, president of Harvard
When someone infringes on my IP, the network detects a duplicate IP, and informs me immediately. Seriously, it seems to me that a design or clever implementation (or marketing approach, or name recognition of customers) that can be carried out of the company "in your head" are fair game. I'm sure the lawyers would tell you otherwise, but it's what we learn that makes us valuable in the job market! If you carry it out on paper, on disk, or via the net, chances are it's a violation. If you can recreate from scratch from within your own brain, have at it! Didn't Andreesen and company recreate Netscape Navigator from memories of designs and implementations at former work?
The odd thing is, it was funny then.
A hack is just an idiom waiting for wider use.
You can't unlearn things, and previous work is usually heavily weighted in applying for new jobs. If you couldn't apply prior knowledge to new tasks for new companies, nobody would ever get hired after their first job.
Experience and IP are two different things. This guy learned from past experience. Now he can apply that to solve a similar problem. If he hacked in and copied the code, that is different.
If you try to open a door differently each time, pretty soon you will be standing on your head trying to turn a knob with your feet.
This guy needs to do the best job he can for the company that hires him. If he refuses because he did something similar at another company, then you might as well just let him go.
T
It'd be great if lawyers gave black and white answers to questions like this, like you'd expect from to hear from a developer if you asked him what the memory requirements of his objects will be. Instead, in my experience, lawyers tend to think in terms of probabilities and downside, and give relative advice. In this case, the relevant dimensions are probably "Who is going to get sued?" and "What's on the line if he loses?" There is a big difference between the developer personally being sued, and your company being sued by the developer's former employer. In either case, however, the former employer will have to show some damage to his business. You and your developer can probably determine whether such damage would occur, and if you think it would, you'd want to steer clear. For instance, if your company is developing a streaming audio player and the developer's last job was with Real Networks, be careful. A suit could delay your product launch and cost your company plenty. If OTOH your company is developing a patient records system, and your developer used to work for a brokerage firm, you may not have much to worry about, since it's unlikely the former employer would spend money to sue without a business justification. If they did, your maximum downside would probably be to fire the developer.
One last point: Some firms have their developers sign paperwork when they are hired that states all work product created by the developer will be original in its nature, will not infringe patents or copyrights of any third party, and will be wholly owned by the employer. Although it won't prevent a suit from a former employer, having this type of agreement on file can demonstrate the new employer acted in good faith if he has to go to court.
Your responsibility now, is to document how the conflict is being resolved just in case his former employeer comes after your company or him (and he will come after you if that happens).
You also now get to apply that developer to another problem (hurray for the other problem).
Welcome to the net of 1000 lies. Upgrades are scheduled soon that should bring us to the 10,000 lies mark.
If drawing on past experience constitutes IP theft then the IP system as we know it is more fucked than I thought.
noah
.. where people couldn't list exact locations of jobs for security reasons, where people couldn't list exact job duties for security reasons, where you got explanations like "well, I worked heavily on a project that I can't really tell you about, but I assure you, I did a lot of coding, but I can't tell you exactly what..." :)
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I agree with you if the pattern is common knowledge. It's common knowledge if you can find multiple developers that know the pattern, yet come from a different background, worked for different companies, etc. It's not common knowledge if only this developer and the developers he worked with at his previous company know it. In that case, it becomes something unique to his original company. That is Intellectual Property and its protected under the laws of the U. S. of A., like it or not.
Looking at NDAs that I've had to sign to work for someone, they all so something like "I will keep in confidence during and after my period of work any IP that I learned or developed while working for company." So if this guy's NDA looks like mine and what he did was unique to his previous employer, then he's got to keep his lips sealed or open himself for a lawsuit. Sorry.
As an aside, if we think the developer's previous company should be denied of their IP, then how dare we GPL anything? The company "created" IP, they can do as they please with it, including keep it proprietary. Open Source projects "create" IP, they also can do as they please, including give it away with restrictions. In both cases, the creator determines the fate of the IP and decides to place restrictions on its use. If we believe that IP does not exist, then creators have no rights, and we should all use a BSD-style license.
Disclosure: I am not a lawyer, but I know to avoid them at all costs.
I have been involved with a lot of designers (not only code design but real world design, like chairs and furniture's). Whenever they "invent" a new design they want to own it. Every thing else is a cheep copy. Now how does this apply to the current situation? Well if you design a lamp, what are you really doing? Do you come up with something quite new? A lamp is a lamp! Someone else invents the material you use! The form of the lamp is inspired by something else! (Everyone I have talked to has admitted this. Truly unique idea is extremely rare.)
So where do a code design come from? I my daily work as both an IT architect and consultant I'm faced with inventing solutions to suit specific client needs. 80% of my code is copied (more or less) from previous pieces of code. Often when I do write code from scratch, its because the previous collection of "stolen" pieces need to be cleaned up or optimised. The design patterns I use are based on best practice (or if I invent something new, a collection of best practices).
In computer science I learned a method called divide and conquer. It's a basic concept, that if you can divide you problem into two problems, and divide these into two problems etc... you'll end up with tiny problems that can easily be solved (typically by one or two lines of code). If you look at any complex program, design pattern etc, this is what you will find. The problem has been broken down to small solvable pieces. And these pieces are not original. Now the work of breaking down the complex problem, is that IP? Now that's what I'm hired to do as a consultant.
When it comes to solving solutions from scratch, its based on my experience. But what is that, besides a collection of knowledge gain by study, reading, daily life etc... Have I ever really invented something worth calling "My intellectual property"?
If I code in C++ or Java, someone else has invented both languages. But the design of the langue influence deeply upon the design I'm implementing. Now you may say that the idea of OO is really original, and could be classified as IP (luckily no one has done so). But is OO not just inspired by the real world? I many of the teach books I have seen examples of OO have been described as elements from the real worlds (insects inherited into flying insects into bees etc... or cars... you probably can list a lot of examples from the books you have read). So can OO be classified as an original idea to be patented?
Now this is where it goes wrong. Copyrights was originally only based on the specific instance of a piece of art, book etc. Then it expanded into patents and now into IP. At some point it will collapse. Now if anyone can provide me with an idea that could be classified as original, and not based on some other piece of information, method, idea... I would like to hear about it.
Now before this patent, copyright, IP collapse (and I believe it will at some point) a lot of lawyers may earn a lot of money going to court. This is an industry on its own today.
So this is where we stand. In a world where lawyers prey on the society of knowledge. They don't provide anything, they don't produce anything... but they do stop a programmer from trying to implement the correct solution for a client out of fear.
Just try to count the number of comments referring to "go see a lawyer", "slashdot is not a free advisory service" etc...
-:) Oh no - not again.
www.rednebula.com
If you get sued, it'll cost buckets of money even if a judge/jury winds up taking your side.
If you don't get sued, it doesn't matter what a judge/jury would have thought, though obviously you'll follow your own sense of ethics.
What are your and his relations with the ex-employer? If they have a reason to get nasty, and can afford a filing fee, then you could find a process server on your door.
Law isn't something like a compiler where you can always predict the output -- it's a matter of what someone has the chutzpah to claim and the persuasiveness to convince a judge.
Once a to-be previous employer was concerned that I might go write an even better application for a competitor (I was lead developer on a project that blew the competition of some 10 other products out of the water -- maybe thanks to that we got a number of military and navy contracts for it as well :-).
There wasn't a problem, as I became a software egnineering consultant and stayed away from that very specialized market segment we were in. I learned the lesson, however. Ever since, I have a clause such as this entered into any new contracts (of course, IANAL):
It's usually not difficult to get in. You can motivate it by simply pointing out that the reason they want to hire you is exactly because of this: you can apply your full register of skills and experience in your new position. The following employer would expect no less.
Trusted Computing FAQ | Free Dawit Isaak!
I'm not one to steal thunder; I'll give credit where credit is due. You're correct about NDAs. However, the original Ask Slashdot question just stated that the developer was experienced in the field and concerned about IP/copyright, not about violating an NDA.
If the programmer is a good developer and has been hired to solve a problem, his experience and knowledge should allow him to solve the similar problem in a similar, but still unique, way.
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-WolfWithoutAClause
"Gravity is only a theory, not a fact!"I Got This Fucking Thorn In My Side Oh My, It's A Mirage I'm Tellin' Y'all It's a Sabotage
I'm suprised none of the conspiracy theorists on here haven't head a field day on this. Did you ever consider it might be a little suspicious this guy acting like this? I'd be really reluctant to expose my employer directly to legal problems like this unless I was POSITIVE there was going to be a problem, like, if we were in direct competition with my previous employer. Otherwise, who cares?
What if that guy was taping you, or is setting the company up for legal action down the road by his old company?
Getting legal advise here is like asking for tips on how to pick up women on slashdot. ask the pros, get legal counsel, you're a babe in woods if you don't have someone on retainer already. When I did lame-o contracts in college I had a contract lawyer, even. It doesn't cost that much.
..don't panic
If there were some company, call it "MIT" that were teaching its engineers old and new techniques, and maybe some of the engineers even came up with some of their own, and the engineers kept leaving to get jobs elsewhere, then maybe this fictitious company would have a beef.
However, maybe some other company, call it "IBM," is able to capitalize effectively on the ideas coming from the pool of engineers it has, and the pool sometimes loses engineers and ideas to other companies, but sometimes gains engineers and ideas from other companies.
Unless there is a patent or other protection mechanism in place from either of these companies (and there are when it matters) to prevent a useful, novel, or revolutionary technique or device from being used by others, then the passage of new developments within the brains of these engineers is simply an accepted fact of life, or rather as a fact of doing business.
[The same applies to any profession, of course, and any company, even any country]
Boss 1: Sorry no matter who he writed he's screwed because he's been tainted by his previous employer. Looks like we're gonna have to start recruiting ALL our employees directly out of college.
Boss 2: But then we're gonna have to pay the University because of the university's IP.
Boss 1: How about grabbing some homeless people off the street and training them ourselves?
Boss 2: Maybe, but we're gonna have to make sure that none of the are out of work programmers.
Where I use to work we found a neat solution like that also. I found that if we turn off our monitors at night it saves money. So I started turning off all the monitors at my new job. Who knew it was going to cost us big money because at my other job I had come up with this idea to turn off all the monitors at night. I heard last week that they applied for a parent on my idea, of course it was really the companies because I thought of it and acted on company time.
Neck_of_the_Woods
#/usr/local/surf/glassy/overhead
IANAL (or an expert in anything stated below).
First, this is what patents are for. Either the "neat solution" is:
1. Patented, in which case, you probably can't use it without licencing the patent, or
2. the "neat solution" is trade secret, in which case your probably fine unless
3. your employee has signed a contract which prevents them from divulging this information under these circumstances.
Something which wasn't mentioned is whether or not the employee worked for a competing company. They are likely to care a lot more about specific knowldge the employee took with him. If you're concerned, you probably want to run this past your companies legal representitives.
Come test your mettle in the world of Alter Aeon!
If you voluntarily sign an NDA and are paid well for your services, it's hardly slavery. That's hardly involuntary servitude. In the US, you are certainly not forced to work for and be paid by a company that requires an NDA or IP contract..
In fact, I know a heck of a lot of people who would sign just about ANYTHING to be employed at the moment..
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If I were going to try to answer this lawyerlessly, I would say you're fine as long as they didn't patent the solution. And if they did patent it, then the engineer in question should probably know about it because he was one of the inventors, right?
Tell the guy to chill. What's the probability that the other company will ever know? I mean, it's not like you're asking questions about it on a widely-read website or anything.
Liberty uber alles.
I think it starts to get borderline with:
cvs -d blah@cvs.blah.com:/blah.cvsroot checkout l33tcode
Invoicing, Time Tracking, Reporting
Folks,
/.
This big of advice in the parent post should be attached as a standard repy for all legal issues brought up on
When it comes down to it get real "paid for" legal council. As they will know the ins and outs and now how to handle these things much better than you or I (unless of course, you are a lawyer).
"Don't mess with him, he taunts the happy fun ball."
http://www.dilbert.com/comics/dilbert/archive/dilb ert-20020526.html
Just saying it's illegal when a judge or jury says it is provides no solace the the questioner. Because if a judge decides it is against the law he or his company could suffer some serious consequences, which is what I think he's trying to avoid.
Gonna have to revise my resume: 12 years of experience in the industry but I can't use any of it to help you solve your problems.
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
Just to stir the pot a little. While one class of problem is "I made ABC system work for XYZ Corp. before", the other side can be interesting too.
For example, you worked for XYZ Corp., and tried to solve the problem with VENDOR 1's product. For a number of not-terribly forseeable technical reasons, it was an expensive nightmare that had to be scrapped. Now, working for PDQ Corp., a competitor of XYZ, a VP thinks that the solution to a same/similar problem is using VENDOR 1's product. Can you pipe up and say "Forget it and save yourself a million bucks, I've been there." Even if you don't offer the eventual XYZ Corp. solution, you have added value.
As a former Amazon employee, I will not build you a solution "like Amazon used". I will not tell you how Amazon did it.
What I will do is build the best solution for your requirements. Just as I did for Amazon.
Intel have headhunted many experienced engineers from the PowerPC division at Motorola. Definately not a coincidence.
Copyrights: you can't copyright an idea only a particular expression of it. Unless you literally copy source code, you are fine.
Patents: it doesn't matter WHO uses it -- if it's patented you need a licence if you use the exact design that is patented. Use the same precautions for this employee as any other, and if you find something patented in the design you'd like to use, modify your own design until it isn't equivalent.
Trade Secrets: The employee should know specifically what information of his old employer was proprietary. His NDA with them does not bind you unless you knowingly attempt to participate in his misappropriation. He is a big boy, he can keep himself on the ethical side. You have absolutely no duty to help his former company keep their secrets. That's what the CA DeCSS case was all about: even if B misappropriates A's trade secret, if C obtains it from B without knowing it was misappropriated, then C can post it to the internet with impunity.
Non-Compete clauses: Your employee already works for you. If your company competes directly against his last employer, then he (not you) would already be in violation. Since his former employer has not already sued him, this is likely not the case. His participation in a particular project is unlikely to affect this.
There really isn't any reason to worry about this employee any more than any other. The only relevent thing the law prevents your company from doing is infringing a patent, so don't do that, but that is true regardless your employees. If an employee violates an NDA and you aren't aware of it, then that is solely his problem to worry about.
It took this guy a few hours to figure out he'd seen and solved the same problem? More likely it took him a few hours to go through all the code he burned to CD when it became obvious the pink slip was coming.
Odds are you can't use his 'solution' because he didn't originate it.
Tell that to my last employer who wanted me to sign an NDA that forbid me from working with computers ever again if i were terminated for any reason (no lie). I tore up the NDA i had to sign to keep my job (that I needed at that time to cover some bills) and kept all my code from that company. And guess what, I don't loost any sleep over my actions.
Damn straight... and remember, knowing what we do of lawyers, why would one give legal advice away when they usually charge through the nose?
I say that if this employee came up with the idea, he should be anle to implement it without any problems. A process/idea should not be patentable, however, a physical item can. Hence, why software should not be patentable.
It is important to ask the right people. But, just as with engineers, they (lawyers) are not all equally qualified either.
And how many times have you heard someone say they have their own "in house computer expert" but they can never tell you what that person's expertise really is?
Does it matter?
Well. Yes it does.
If the expert is proficient in Cobol a C++ question may be a foul ball or strike out.
The point here is one of most difficult decisions that anyone has to make is to consult with the right people at the right time. That is a really tough call to make. You are always tossed between "I do not need to talk to this expert or that expert" and "if I always called the consultants, I'd be broke by the end of the day".
Well, yes, it is sort of like that.
And, then you have companies such as Microsoft who either do not hire competent legal help or they do not listen to them. Or, their ego gets in the way. Or, they simply take huge legal risks because some lawyers think they can get their client out of any mess.
I have often said that I doubt "my opinions" on the antitrust cases is very different from that of the Microsoft lawyers. Now, if you check my web site you will quickly conclude that the public statements made by Microsoft's lawyers differ quite a bit. But, I seriously doubt that what they say publicly matches what they advised Microsoft. Those conversations are private and will never be made public. But, I know there is a very big difference between what you tell a client in private and what you may say publicly.
The point here being that if you are doing anything based upon public statements made by Microsoft's lawyers, you have been mislead if not defrauded. You could say about the same with the State's lawyers or even the DOJ's lawyers. But, they have less reason to falsify their public statements. And, they even have an obligation not to mislead the public because that is who they are supposed to represent. The DOJ has failed in that regard however and has deliberately mislead both the public and the federal courts. Why they have done so is not clear. But, the fact they have done so is clear.
So be careful trying to learn the law from lawyers representing clients. Or, even non-lawyers.
NexuSys - Linux support by the best
NDA agreements should have term limits implied to say the least. Although, in this case, you could have this experienced employee guide you through a process or better yet, point out public domain equivalents. They should never indicate in the process whether or not the equivalent is what they NDA'd.
The last portion though, if the NDA prohibited someone to conduct the normal course of work, and there was no consideration to maintain the contract. You may have a loop hole, but leave that to your hired guns to figure out. I do think any contract signed, including NDA's need to have fairly strict limits and parameters explicitly spelled out. Also, the state of the art is such that sometimes there are no choices, but patents, trade secrets and like get in the way of this line of thinking.
This is at your own risk, if in California, litigation is normal.
http://www.aisnota.com/slashdot/ Welcome to Logic and the Future
Your last statement proves my point. These employment contracts often amount to slavery. If every job that makes more than flipping burgers requires it, you're stuck. My current employer made us sign an agreement granting them all IP rights to anything we create at anytime while employed by them. We were not told about this until after we had the job. Where do they get off claiming that they have full rigts over any photographs I take. And this is for a company where I do computer tech support. Claiming everything I do is slavery and most employment contracts from what I have seen are very similiar.
Just a Tuna in the Sea of Life
You weren't told about an NDA until after you "had the job," eh? Does that mean that they offered you the job and then asked you to sign and NDA? An NDA is only binding if you sign it, and if you don't agree to it and accept by signing, well, then, you don't have to take the job.
;)
*...okay, imagine the rest of this post in a stoner-hippie-berkeley kinda voice, for the humorous effect that is intended...*
Nah, man, the only thing you're a slave to in this case is the capitalist system and the culture of materialism. You're the one who wants to get a better job, so you can make more money, so you can buy more things, eh? Where's the forced servitude in that? No one's forcing you to live in a nice house and buy more stuff.
If you don't want to be a "slave" to the "system," you could always stick to one of those burger-flipping jobs. Or, better yet, go live off the land!
Moderation totals that amuse me for one of my posts: Flamebait=1, Insightful=2, Funny=2, Overrated=1, Underrated=1
IM ANAL, so I'll point out that its spelled Lawyer.
I figure property is something you can put a fence around. This is true for things like your land, your stuff and even Patents and Trademarks. Its also true for trade secrets but that involves having the fence go around every one that works on the project too. In the past IBM used to solve this by the concept of life long jobs. Now that the compaines break backed down on that, I think they have backed down on their ability to preserve their secrets as well.
One thing that needs to be settled (and could be soon) is what is public domain. Remember all the congresscritters singing on the steps? The copyright for that song is owend by a group that gives the money to the Boy Scouts. That performance was viewed by billions of people and according to Congressess on rules, they owe. Or they could contend that since they sang the song fomr memory that its in the public domain. The trick is to get congress to have to make that decission.
The only possible answer is NEVER.
A: No. Next question.
Nathan's blog
IANAL, but our company lawyer gave a presentation to the development team on issues like this. What he said was basically you can use whatever is in your head, provided that it's not covered by patents (or copyrights, but in this case copyrights seem pretty unlikely). One caveat is that you can't rely on any written documents from the previous company that are company confidential. Of course, none of your employees should have kept anything company confidential from previous employers. Caveat: this may apply only in California.
IANAL, but assuming that I am a very evil person by nature, and sometimes enjoy writing code that directly harms my employer and my colleagues and as a result I would get fired and found a new job, can I then use the same (rewritten of course) code if the urge falls upon me in my new job? Sort of "Stupid Property" (SP), or do the company I worked for own the rights to their own damnation?
This also applies to a new cult for which I am directing a new bible (the old one got suicidal and the royalty payments have since started to dry up) so I have some personal interest in this as well.
Hey!!! the parentheses are good for something
A written NDA is ust as legally binding as a verbal contract where you agree to the same terms, the only problem is proving the terms of the verbal contract.
If Anders Hejlsberg can leave Borland right after designing Delphi and build the MS J++ tools and C# then I suppose anybody could use their own experience.
Both borrowed heavily from Delphi... in interface for J++ and language enhancements in the case of C#.
In fact, the disease so-called Intellectual Property should be outlawed. In fact, laws should be outlawed. The government should outlaw itself. Yeah. And the first action any computer program takes when executed is to delete itself and exit. No matter what the program is designed to do.
SCREW IP! In fact, I think it's funny when someone spends a billion dollars developing something and then some shmoe comes along and copies it, profits off it, and leaves the original implementer in the dark!
In case you didn't get it, stupid, this is called sarcasm. I think that if you solved the problem before for another employer, you should forget the solution (employing techniques such as doublethink, as its called in Newspeak), and reinvent it. Then, you should remember the old solution once again (again, employing doublespeak) and check the new solution against the old solution, not for functionality or errors, but rather for similarity. If the new solution is 1% or more similar to the old solution, start over. (Once again, forgetting the old solution, using doublethink.) Then, you'll invent a novel new way of implementing whatever the hell it was you're implementing, and chances are, it'll be a hell of a lot better. For example, if the problem is to print something on the screen, and for the previous employer, you used printf(), then for the new employer, you should have to use something else, because using printf() to print something on the screen is a violation of the old employer's intellectual property rights, and infringes on their right as a corporation, as detailed in the 99th Amendment to the Constitution, "Corporate Right to Eternal Perpetually Increasing Profits and Complete Lack of Competition."
My conclusion? Ask a stupid question, get a stupid answer. Ooooooooooh well.
If the prior work wasn't patented, and was not a closely held secret, then reimplementation seems fair. In my career (logic/chip design), I've done many things I like to think were clever, but they wouldn't be novel enough to patent - instead they should be considered good practices. I don't see anything wrong with recycling lessons learned.
Of course, "trade secrets" seems like a vague term to me - in the logic/chip business, patents are the main form of IP, but I expect there is a whole body of precedents in that regard.
Two jobs ago, the employee manual had at least half a sentence missing in the section on "advancement". Nobody else complained, and when I complained they never fixed it.
I guess they either never read it, or never cared...
using /. instead of a corporate counsel to answer legal questions involving IP?
At the moment I work in premium design, where confidentiality and IP are deemed pretty important. If your employee signed an NDA/confidentiality and property agreement for his last job, it should clearly answer any of those concerns. It should cover anything to do with copyrights, so-called "trade secrets" and even how long he has to wait before seeking employment with a potential competitor.
:)
And if he didn't sign one, that company obviously didn't care enough. Open season in that case
As mentioned before though, you cannot copyright an idea or concept. To directly infringe the other company's IP would be to do a cut and paste job.
Just keep your mouth shut about where you got the idea, and then just suddenly shout out "eureka" and you'll get the credit for solving the problem without the BS.
Everyone is so anal about everything. Will common sense ever prevail? Porbably not, I should just bash my head in now and end the pain.
Great Linux Site
Lawrence Rosen wrote a about a similar subject in March 2002 issue of Linux Journal..
J 95 / 670.html
Basically he says 'be wary of looking at MSFT code (i.e if they do 'open' it up a bit), because you may become IP tainted...i.e. if you solve a problem similarly to the way they solve it, they may be able to claim that you copied their ideas and thus violated their IP rights.
The people dissing this question don't understand the subtlety of it. IMHO the poster posits a legitimate question.
http://interactive.linuxjournal.com/Magazines/L
(must be a subscriber)
Did he work for MSFT? Or another software company.
"I don't think it's selfish, to eat defenseless shellfish." -NOFX
People are going insane because companies are slowly making them so.
:)
The method they use is to take a stance on an issue that has no basis in law or fact but that they wish to be true. The act as if it is true, and more over expect you to also believe it is true. They never allow it to be considered that it isn't true. Due to their influence -- be it in the form of advertising or the employment contract their lawyers place in front of you -- their opinion, slowly, over time seems less audacious to the listener. Eventually they start questioning whether or not it really -might- be true.
This is why we are having this discussion. This is why people will tell you that you've only bought a -license- for your software, not a copy of it, though this never used to be espoused except by corporations. This is why people start saying that maybe not watching the commercials really -is- theft. This is why people start thinking that if we don't let our computers be turned into devices for buying subscriptions to content, we'll never see any more great Britney Spears videos.
This is also why an MPAA representative, standing before a judge, had to give a non-comittal answer when asked if it is okay to make a copy of a CD to use in the car. Because if she said the correct answer "Yes, of course" that would break the facade, and that can't happen because she -wanted- the answer to be "No, that's a felony".
But once you realize this is happening, it's actually not that hard to resist. That's why just pointing this stuff out can be effective.
The enemies of Democracy are
BOFH
shouldn't that be when, say, ... a judge or jury does? lawyers are not the law. even laws don't say what -you- are doing is wrong. courts hold that position, by comparing your actions against and template, matching them up and judging the severity of the bitmask.
same reason for not listening to people telling you what god thinks of you. but that's another story.
I think this sums it up pretty well.
There are 2 kinds of people in this world: Those who write in decimal and those who don't
Is the design yours, and then if so did you sign the intelectual property agreement when you were at your former company, making what is yours theirs. If not then is your idea somthing that if reproduced for someone else,is going to destroy or cripple your former employer, if no to all, but the first, then use it. it is yours.
Yeah, but see, if you get sued you've already lost.. The costs in legal fees means it's way better if the lawyers don't think you're violating their IP so you don't get sued in the first place.
By the time a judge or jury says you're in the right, you could already be out millions of dollars if your opponent has the money to drown you in motions..
All movements for social change begin as missions, evolve into businesses, and end up as rackets.
I just wet my pants. You'll pay for this you fucking bastard.
IMHO In that case *nothing* is legal. After all it is a common practice to send a lawyers letter that is no more than an empty threat for just that reason.
For example, a company wanted us to forward a message to an anonymous person associated with our business. They threatened to sue us for interfering with the mail service (a serious offense). However the mail service *had* delivered the letter to its addressee (us), and had become our property which we could dispose of if we wish.
On the other hand a valid legal letter can be dressed up as a bluff so that the opponent will technically be legally notified, but will not realise the severity of the threat against them. An example of this is when a union send us a letter stating that they wanted our staff to be paid at least three times the national average, and that it should not be a condition of employment that our staff be required to work. Ever.
In this case this was a serious attempt to enter a legal state of "dispute" with us which would give them special legal powers over us. They were hoping that we would either write a letter back saying "ha, ha very funny" or simply not reply - either option would have put us in a state of "dispute". The correct solution in this case was to point out that we do not employ any employees covered by the award governed by the union we could not be in dispute because there is nobody to be in dispute about.
Then of-course there are all the people who claim to be tax office investigators/child welfare to try to spy/intimidate our company or our staff. Although it is illegal to be impersonate a police officer, there is no law that prevents impersonation in general. It may still be possible to prosecute them for things they did while impersonating.
In every case we have to decide whether it is worth bringing in the lawyers. Generally the answer is "Yes".
We use GNU/SunOS.
As an attorney, you socialist idiots still banter on about free this and that.
IP rights are here to protect inventors, whether they be individuals or inventors. Just because you don't have the guts to risk a little $$ to do some innovation doesn't mean it should be free beer for all.
fuckers.
If re-use of design patterns is an IP violation, I would have to get electro-shock therapy every time I changed jobs! Copyright applies ONLY to written code. Patents can apply to processes, but you have be violating a specific registered patent. Trade secrets are much more vague. If design patterns fall within a legal scope at all, it would have to be here.
I read somewhere that a company that I used to work for (Cantor Fitzgerald) tested this in the UK courts when an ex-employee went to a competitor and basically re-wrote the same system. The judge basically decided that the company could not expect him to not draw on his own experience as his brain could not be erased.
Unfortunately I feel I have to post this as an Anonymous Coward because that company appeared to be very litigious when I was there and has been know to sue the odd ex-employee.
Gentlemen the time has come for a serious discussion on whether or not to continue using C for serious programming projects As I will explain I feel that C needs to be retired much the same way that Fortran Cobol and Perl have been Furthermore allow me to be so bold as to suggest a superior replacement to this outdated languageTo give you a little background on this subject I was recently asked to develop a clientserver project on a Unix platform for a Fortune 500 company While Ive never coded in C before I have coded in VB for fifteen years and in Java for over ten I was stunned to see how poorly C fared compared to these two more lowlevel languagesCs biggest difficulty as we all know is the fact that it is by far one of the slowest languages in existance especially when compared to more modern languages such as Java and C Although the reasons for this are varied the main reasons seems to be the way C requires a programmer to laboriously work with chunks of memoryRequiring a programmer to manipulate blocks of memory is a tedious way to program This was satisfactory back in the early days of coding but then again so were punchcards By using what are called pointers a C programmer is basically requiring the computer to do three sets of work rather than one The first time requires the computer to duplicate whatever is stored in the memory space pointed to by the pointer The second time requires it to perform the needed operation on this space Finally the computer must delete the duplicate set and set the values of the original accordinglyClearly this is a horrendous use of resources and the chief reason why C is so slow When one looks at a more modern and a more serious programming language like Java C or even better Visual Basic that lacks such archaic coding styles one will also note a serious speed increase over CSo what does this mean for the programming community I think clearly that C needs to be abandonded There are two candidates that would be a suitable replacement for it Those are Java and Visual BasicHaving programmed in both for many years I believe that VB has the edge Not only is it slightly faster than Java its also much easier to code in I found C to be confusing frightening and intimidating with its nonGUIbased coding style Furthermore I like to see the source code of the projects I work with Javas source seems to be under the monopolistic thumb of Sun much the way that GCC is obscured from us by the marketing people at the FSF Microsofts shared source under which Visual Basic is released definately seems to be the most fair and reasonable of all the licenses in existance with none of the harsh restrictions of the BSD license It also lacks the GPLs requirement that anything coded with its tools becomes property of the FSFI hope to see a switch to VB very soon Ive already spoken with various luminaries in the nix coding world and most are eager to begin to transition Having just gotten off the phone with Mr Alan Cox I can say that he is quite thrilled with the speed increases that will occur when the Linux kernel is completely rewritten in Visual Basic Richard Stallman plans to support this and hopes that the great Swede himself Linux Torvaldis wont object to renaming Linux to VBLinux Although not a C coder himself Im told that Slashdots very own Admiral Taco will support this on his web site Finally Dennis Ritchie is excited about the switchThank you for your time Happy coding
-pwpbot
Gentlemen the time has come for a serious discussion on whether or not to continue using C for serious programming projects As I will explain I feel that C needs to be retired much the same way that Fortran Cobol and Perl have been Furthermore allow me to be so bold as to suggest a superior replacement to this outdated languageTo give you a little background on this subject I was recently asked to develop a clientserver project on a Unix platform for a Fortune 500 company While Ive never coded in C before I have coded in VB for fifteen years and in Java for over ten I was stunned to see how poorly C fared compared to these two more lowlevel languagesCs biggest difficulty as we all know is the fact that it is by far one of the slowest languages in existance especially when compared to more modern languages such as Java and C Although the reasons for this are varied the main reasons seems to be the way C requires a programmer to laboriously work with chunks of memoryRequiring a programmer to manipulate blocks of memory is a tedious way to program This was satisfactory back in the early days of coding but then again so were punchcards By using what are called pointers a C programmer is basically requiring the computer to do three sets of work rather than one The first time requires the computer to duplicate whatever is stored in the memory space pointed to by the pointer The second time requires it to perform the needed operation on this space Finally the computer must delete the duplicate set and set the values of the original accordinglyClearly this is a horrendous use of resources and the chief reason why C is so slow When one looks at a more modern and a more serious programming language like Java C or even better Visual Basic that lacks such archaic coding styles one will also note a serious speed increase over CSo what does this mean for the programming community I think clearly that C needs to be abandonded There are two candidates that would be a suitable replacement for it Those are Java and Visual BasicHaving programmed in both for many years I believe that VB has the edge Not only is it slightly faster than Java its also much easier to code in I found C to be confusing frightening and intimidating with its nonGUIbased coding style Furthermore I like to see the source code of the projects I work with Javas source seems to be under the monopolistic thumb of Sun much the way that GCC is obscured from us by the marketing people at the FSF Microsofts shared source under which Visual Basic is released definately seems to be the most fair and reasonable of all the licenses in existance with none of the harsh restrictions of the BSD license It also lacks the GPLs requirement that anything coded with its tools becomes property of the FSFI hope to see a switch to VB very soon Ive already spoken with various luminaries in the nix coding world and most are eager to begin to transition Having just gotten off the phone with Mr Alan Cox I can say that he is quite thrilled with the speed increases that will occur when the Linux kernel is completely rewritten in Visual Basic Richard Stallman plans to support this and hopes that the great Swede himself Linux Torvaldis wont object to renaming Linux to VBLinux Although not a C coder himself Im told that Slashdots very own Admiral Taco will support this on his web site Finally Dennis Ritchie is excited about the switchThank you for your time Happy coding
-pwpbot
What effect will Episode III have on open source?
No open source software will be receive any development on opening day. In cities with lines around the block, open source development may cease prior to opening day.
This is good for Linux
Developers work too hard. They need a break. They need to see sunlight again.
This is bad for Linux
When developers return to their computers they will be spending less time developing and more time critiquing the movie or trying to create Yoda fight scenes in their favorite open source 3D program.
Coding Blog
Why would anyone "ask slashdot" such a ridiculous question? You're going to get 14 different responses and all of them will be wrong. Talk to a lawyer -- it won't cost as much as you think it will, and you'll get good advice.
The Daily Build
If you voluntarily sign an NDA and are paid well for your services, it's hardly slavery.
It approaches it if they are not willing to pay for a 'gardening leave' for the period of the NDA/non-compete that exceeds the employment period.
More precicely, it is indentured servitude, a practice that is often considered a lesser form of slavery.
Realistically, if all of those NDA's out there were taken at face value, the only possable new hire would be for entry level positions since no amount of previous experiance could be applied to a new employment.
Personally, I refuse to enter into such NDA/non-compete contracts since I cannot honestly forget everything I learned during any employment period (nor would I be willing to even if I could).
I will agree not to share information specific to an employer, such as strategy, secret projects, business plan, etc. Note that this is limited to not saying what their secrets are, I will not accept a limitation on re-implementation.
Of course, most of that is moot now since I am employed to write Free Software.
Yes, it does. That's why IP laws are stupid - because they're laws controlling when and where you can let others know that you're presently or had previously thought about certain things.
Someone who codes something that does X is always allowed to work on similar projects. The rational behind this is that a coder would exhaust their career if anything they made once was unable to be used exactly or in a similar way.
Go look at mirosoft when they made office, they hired away all the programers from the leading companies and had them work on the same things that they had created for their previous company.
That, and it's been said but go get a FREAKIN lawyer!!!
"IP" is four different creatures:
Trademarks - doesn't apply here.
Copyright law - a copyright grants the rightholder certain exclusive rights for a given expression, it doesn't protect the ideas embedded in that expression. That is - it is legal to read a book, learn from it and use the ideas on your own work, but you are not free to copy the text from the book verbatim.
Patent law - the inventor is given a time-limited monopoly on the commercial exploitation of an idea.
Trade secret - anything a company doesn't want you to know. It is not illegal to independently discover a trade secret (Volvo ripping the latest Mercedes apart to see if they have some good ideas), but it is illegal for a company insider or someone that is bound by contract to reveal the secret.
Copyright law doesn't apply as long as he is just using the ideas and don't copy diagrams or code verbatim.
Patent law only applies if his former employer has patented the idea in question.
Trade secret law might apply if he has recently left the former company and has signed an NDA or something similar.
Anyway, IANAL so if this is an important issue go get some legal advice.
If J.K.R wrote Windows: Puteulanus fenestra mortalis!
I refuse to sign nondiscloser agreements becouse of the fact that this means MY work is under the liccens.
When I worked for a BBS (as a hobby) the Sysop asked me to sign a nondisclosure. I said no. I've got no access to anything byond my own work why should I?
I understand the basic idea. If I write code for Windows for Microsoft then Microsoft would want me to sign an agreement thay says I won't give away the whole source code.
I don't actually exist.
So much depends upon the jurisdiction and facts. While the Uniform Trade Secrets Act does exclude reverse engineering from "improper act," the case law is more sanguine as to what conduct constitutes a complete defense. The more "unclean" the hands that do the reverse engineering, the more at question will be at issue. This issue is, of course, not fully tested in view of the usual "no reverse engineering" license provisions of most software licenses.
But the fact pattern here is NOT one of reverse engineering a published product -- it is one of solving a problem in a neat way in a prior employment. In such cases, where the details of the prior solution come from a specification provided by a prior employee, not from an RE of a publicly available work, the development of code from the employees "recollections" is probably not going to provide a defense. Even where the employee provides only slight assistance, such as identifying the product with the "neat solution," or pointing to the code or portion to be reverse engineered, an RE accomplished independently may be tainted.
The difference between trade secrets and copyright in this regard isn't the nature of the protection granted, but the scope of subject matter given protection -- copyright protects expression, not the underlying ideas, providing a form of protection that can be reduced by a specification team in a clean room as fair use to a document, which can then be independently developed. Unless the company has put the idea "out there" in some way, trade secrets can nail the former employee in many cases.
As I keep stating -- devil is in the details -- specific facts can swing the results widely -- almost identical fact patterns can yield different results on what may appear to be a minor detail. My point is that the informal clean room approach suggested in the immediately prior message would not avoid trade secrets -- if the employee participates in the putative RE, the litigation will be fast and furious, notwithstanding this language.
I'd just like to say this is the best comment I ever posted.. 12 mods just to get it right back to Score:2 where it started.
Sweet.
All movements for social change begin as missions, evolve into businesses, and end up as rackets.