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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?"
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.
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
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.
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IANAL, but if I were, we'd all be in trouble!
Heh.. agreed, to some extent... but I was referring to the method of problem solving, not the line-by-line copying of a module of code... If the engineer had solved the problem previously, then he had a good idea how to engineer the solution to the current problem.
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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.
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.
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
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 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.
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.
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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.
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