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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?"
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
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
Possible simple solution: have him describe the implementation and let someone else acutally write the code.
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.
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
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.
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
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."
most NDAs have a time limit (you may not compete with us for xx years). I believe a california Judge ruled that, for the software industry, anything beyond 6 months was excessive and unenforceable, due to the rapid advances in the industry.
If it's been 2 years or more, it's fair game. If it's been less, get someone else to do it.
Which is fine to a point, but what's wrong with drawing on the collective experience of /. to figure out what to do?
because he asked a legal question and I think the most used phrase in this thread has been "IANAL".
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
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.
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.
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 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
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.