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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.
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
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.
Possible simple solution: have him describe the implementation and let someone else acutally write the code.
... 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).
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.
---
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.
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!
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.
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
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.
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.
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
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
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.
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 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...
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.
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.
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
Non-compete contracts are unenforceable if they unfairly limit your ability to have a job. A *temporary* (ie 2 years or less) restriction from working for competitors or practicing the trade within a geographic area is enforceable.
Do you even lift?
These aren't the 'roids you're looking for.
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.
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.
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.
...that posts "Effect on open source?" to every new thread?
I hate to tell you this, but that is in fact the precise objective of most modern employment contracts in the IT world: to enslave you to one company by rendering to enemployable outside of McDonalds should you leave.
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.
I had a lawyer explain his opinion of the laws...which was pretty much similar to your thoughts...you can't copy the code, but you can take your experience. I was careful to make sure he noted this view in the NDA I was being forced to sign.
BTW, I had another a contract that specified that I could not accept work from a potential client of the company within three years of the two month contract. I asked the lawyer if he could name a single company that was not a "potential client." He could not; so I refused to sign the legal documents.
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".
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
I'll no longer have that problem when Malda get's the /. spellchecker module installed which will be on the near side of never.
If drawing on past experience constitutes IP theft then the IP system as we know it is more fucked than I thought.
noah
Only a moron signs a contract on the theory that it is unenforceable, and they deserve what they get.
-- ;-)
Kuro5hin.org: where the good times never end.
-- ;-)
Kuro5hin.org: where the good times never end.
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.
-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
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.
Or you could just do it in perl instead :)
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
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?
Also check out this lawsuit summary.
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 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
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.
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.
You are either:
1. Not in managemnet.
2. Unsuccesfully in management.
Why? Because you are dealing with people. Not robots and part of what you hire an employee for is to tell you when it can't be done and why.
I'm sorry, I'm to tired to be witty at the moment so this message will have to do.
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.
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
All I can say is check what the law really is in your state and do NOT take as fact either what your employer tells you or what your employer's attorney says, neither is working for you.
Tech Public Policy stuff
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.
Interestingly, there has been research showing that the ear has an auditory response during dreams and hallucinations. Essentially, the ear and auditory cortext perform a complex feedback that allows the brain to gather the most auditory information possable (part of why cochlier implants are so hard to perfect).
The upshot is that the ear more or less reproduces the sound barely loud enough to detect with a good microphone in the ear canal.
With practice, it's probably possable to reproduce any remembered sound for others, including copyrighted works.
I hope the RIAA reads this and goes into a frenzy! :-)
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.
"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!
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.