Does Drawing on Experience Infringe on Other's IP? 374
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?"
Simple (Score:2, Funny)
So, is like Ask Slashdot now the Free Legal Advice Center or what? Doesn't your company have any lawyers of your own?
but lawyers do not all agree (Score:5, Informative)
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
Re:but lawyers do not all agree - mod parent up (Score:3, Insightful)
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).
Re:Simple (Score:2)
Re:Simple (Score:4, Informative)
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.
Re:Give him a choice (Score:3, Insightful)
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.
Re:Simple (Score:2)
simple answer (Score:3, Insightful)
Re:simple answer (Score:2)
Re:simple answer (Score:3, Informative)
A patent the only form of IP that's protected by law. Trade secrets are also protected implicitly, and usually explicitly in employment contracts. Even if it's not patented, using your former company's ideas may be breaking the rules of your contract with them, or even the law. YMMV.
Re:simple answer (Score:2)
Not exactly. Some companies have silly little contracts like "You promise not to benefit from working here. Any ideas you have for the rest of your life are property of The Corporation. You agree to random anal searches five years after the end of employment"
They stick all kinds of crazy stuff in employment contracts. I think I can only drink Pepsi, as one of my prior employers was partnered with a CEO who happened to have a son who worked at Pepsi-CO.
Standing on the Shoulders of Giants... (Score:5, Insightful)
Re:Standing on the Shoulders of Giants... (Score:4, Funny)
Someone should tell this to some of the developers at my place. We've got some of the most "novel" solutions to problems I've ever seen, unfortunately.
But don't steal their thunder.... (Score:2)
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.
Re:But don't steal their thunder.... (Score:3, Insightful)
Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Re:Standing on the Shoulders of Giants... (Score:4, Interesting)
Re:School teachers would disagree (Score:2)
YASASQ (Score:3, Insightful)
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.
reverse engineer? (Score:2, Informative)
But it would have be carefully thought out.
Re:reverse engineer? (Score:2)
not sure if that's clean room reverse engineering or what.
but at least it's an answer. don't know if it's a good or correct one.
I'd tell you the answer, (Score:4, Funny)
Re:I'd tell you the answer, (Score:2)
----rhad
Effect on Open Source? (Score:2, Interesting)
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.
Re:Effect on Open Source? (Score:2, Insightful)
Needless to say that I never signed the damn agreement and had acquired a new job before next payday, and even got over $10K/yr more salary at the new job too.
That evil company is now bankrupt after the dotcom bust... seems like they never could manage to hire or retain any good IT talent. Gee I wonder why?
Is there a slashbot (Score:2)
Re:Effect on Open Source? (Score:3, Insightful)
But every contract gig I've had has been very clear and limited around these things' my current client is a bank, for example, and there's nothing stopping me from working for another bank next week so long as I don't reveal confidential information.
What sucks most of all around this (for employees) is that it's yet more evidence that company loyalty is a one way street.
Possible simple solution.. (Score:4, Insightful)
Re:Possible simple solution.. (Score:5, Informative)
This is not to say that the hypothetical, in every case, precludes re-solving problems previously solved -- nothing of the kind. The hypo is too broadly stated, and the devil is in the details. Short answer to the question: Ordinarily, drawing on previous experience is ok, except when it isn't. (Hey, I'm a lawyer, absent the meaningful details, which could swing a result either way, that is the best we can do.)
However, where a trade secret claim is available with respect to the architecture for the previous "neat" solution, the clean room approach will fail. That trick works only for copyrights.
Re:Possible simple solution.. (Score:3, Insightful)
If you stick to implementing design paterns and common algorithms, then you probably will not run into this problem--espcially if you have books and/or magazines that describe the code/data struct/etc. in question that predate the companies use of it.
Re:Possible simple solution.. (Score:2)
No, but large amounts of similarities in problem-solving methods do not automatically equal copyright infringement either.
I didn't mean to imply it did. You can have exactly the same code and still not be guilty of copyright infringement if the code was created independently. However, looking at a copyrighted work, waiting for a year, and then rewriting that work is still technically copying. Sure, you won't get caught, but it seems that Daniel was too paranoid than to accept that answer.
Clean-room design and implementation would secure this.
Isn't that exactly what evilpaul13 was suggesting?
IANAL... (Score:3, Insightful)
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).
Re:IANAL... (Score:2)
Which is fine to a point, but what's wrong with drawing on the collective experience of
The worst case scenario is that he has more questions to ask his lawyer. (Note: He didn't say he wasn't going to consult a lawyer.)
Re:IANAL... (Score:4, Informative)
because he asked a legal question and I think the most used phrase in this thread has been "IANAL".
Re:IANAL... (Score:2)
But it isn't too stupid to first ask whether the issue is even close enough that it's necessary to blow a big chunk of cash on a lawyer. Some
Re:IANAL... (Score:2)
That's fair. I think what he was fishing for was other people who had a problem like this in the past. I don't think he expects us to say anything unless it's either a "black and white no shades of gray" answer, or a story about a similar incident that they knew about.
Don't worry, I totally understand what you're saying. I'm just saying that, at least, there might be some experience the Slashdot community could offer.
Re:It's LAWYER. (Score:2)
Correct me if I am wrong (Score:2, Interesting)
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
Re:Correct me if I am wrong (Score:2)
Re:Correct me if I am wrong (Score:2)
It doesn't.. in my book.. (Score:4, Interesting)
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!
Re:It doesn't.. in my book.. (Score:5, Funny)
--
Damn the Emperor!
ok, THAT was funny! :) (Score:2)
Well, I am not God, but I do play God at work..
---
Universe, n.:
The problem.
Re:It doesn't.. in my book.. (Score:2, Funny)
"He does now."
Things to consider (Score:5, Informative)
See, this is why... (Score:2, Funny)
When you can identify... (Score:2, Interesting)
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 past experience? (Score:2, Funny)
What? You mean your employee didn't have his brain degaussed at the exit interview, per company policy? ;{)
Translation: (Score:2, Troll)
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."
Re:Translation: (Score:2)
Re:Translation: (Score:2, Funny)
Re:Translation: (Score:3, Insightful)
So, I get sued by my ex-employer if I use my experience, or fired by my current employer if I don't? The same current employer that forced me to sign an NDA/non-compete when they hired me (or, better yet, shortly thereafter)? Here in NC, I'm told that an employee manual you have never read can be interpreted as a legally binding document.
Am I a slave yet?
Can you control my thought process ? (Score:2)
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.
Expression Only (Score:2)
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.
Obvious answer (Score:4, Insightful)
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.
Re:Obvious answer (Score:4, Funny)
Plaintiff: Objection. Many of these opinions were modded down as redundant, your honor.
Your Honor: Strike comments modded below three from the record! Case dismissed.
Idea vs. implementation (Score:5, Insightful)
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?
Re:Idea vs. implementation (Score:3, Informative)
Not true, at least in the United States or Europe. Patents are--and always have been--allowed to cover a process, art, or method. See e.g. Title 35, part II, chapter 10 of the US Code, "Patentability of Inventions" for the legislative authority to cover this. This wording is basically unchanged for over a century--though in 1952 wording was added forbidding patents on things that are "obvious to a skilled practitioner of the art" (the courts had been enforcing a similar prohibition since a Court ruling in 1850). Going back into history, European governments routinely granted method patents since at least the mid 1500s.
_Business_ method patents are new, but patenting ideas and methods rather than implementations isn't anything new.
Copyright and trademark, on the other hand, are supposed to cover particular expressions of an idea (and with trademarks that expression is limited to how it is used in a particular field).
Sumner
My experience (Score:2)
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.
A neat way to solve that problem (Score:5, Funny)
Have someone else implement his solution. (Score:2)
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.
Patents (Score:2, Insightful)
Its infringing on someone's IP when the "experience" resulted in a patent being granted on it.
In a word... (Score:4, Insightful)
No. Inspiration does not count as stealing. Mind the slippery slope.
Drawing on Experience and IP (Score:5, Informative)
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 [com.com]
Re:Drawing on Experience and IP (Score:2)
I'm sure there must be some precedent for including these provisions in contracts, but you'd need a lawyer to tell you about how enforceable they are. Or you could just make a commonsense assessment based on your understanding of what is an obvious engineering problem versus a trade secret could be. See some definitions of trade secrets from the law: http://www.execpc.com/~mhallign/tradesec.html then go and ask a lawyer for a _real_ opinion (i.e. is your company willing to go to bat for you should something happen in the future where you get sued).
Re:Drawing on Experience and IP (Score:2)
The person asking the question is thus not a party to such a contract. So his employee could conceivably be sued, but I don't see how the new employer could.
Copyright and/or patent violation is another matter altogether, but I don't think non-compete clauses and trade secret agreements are binding on third parties.
I am not a lawyer and it would be nice to hear from some real lawyers on these matters. I know you're hiding out there somewhere.
Re:Drawing on Experience and IP (Score:2)
If you are going to ask your employees to do questionable stuff, you'd better be willing to go to bat for them - just common sense here, nothing legally binding about it (since obviously, as you mentioned, contracts aren't legally binding on third parties, but neither can a third party try to coerce you into breaking a contract by threatening to fire you from your job). It definitely falls into common business understanding that you can't ask employees to divulge trade secrets that belong to previous employers on threat of firing them - and if you want to convince yourself of this, ask a lawyer.
IP issues (Score:2)
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....
Oooo opportunity! (Score:5, Funny)
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]
:)
Re:Oooo opportunity! (Score:2)
Oh right, the dot-com boom is over. Oh well.
Re:Oooo opportunity! (Score:2)
Didn't get the job.
(Really, this is the reason why I try to sign as few NDAs as possible nowadays. Sooner or later you come to a situation where you would know how to efficiently solve a problem, but you can't do it because of an NDA. And that is incredibly frustrating - knowing that you could do better, or different, but you cannot because you're afraid of breaking an NDA.)
Re:Oooo opportunity! (Score:2)
Interviwer: Can you tell me a little about the most recent poject you worked on?
You: No.
Re:Oooo opportunity! (Score:2, Funny)
Is it 'experience' or 'proprietary knowledge'? (Score:2, Insightful)
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
It probably doesn't (Score:2, Interesting)
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 [uspto.gov]. 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.
Personal Experiences (Score:2)
"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.
Depends on whether the IP is protected (Score:2, Insightful)
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.
Odd problem (Score:2)
good grief (Score:2)
Hey! Lawyers out there... (Score:2)
My name is Daniel Paul from Fractal Graphics">Fractal Graphics [fractalgraphics.com.au]. 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.
Answer for California (Score:4, Insightful)
Re:Answer for California (Score:2)
Patent, copyright, and NDA's (Score:2)
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.
Only when previous employer snoops around. (Score:2)
This has a very simple answer (Score:2)
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.
Time to throw in the towel... (Score:2)
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.
easiest solution (Score:2)
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 != IP (Score:5, Interesting)
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
Stop the insanity! (Score:2)
If drawing on past experience constitutes IP theft then the IP system as we know it is more fucked than I thought.
noah
Basic problem in IP. (Score:5, Insightful)
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...
Does it matter? (Score:2)
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.
In situations like that I ask myself the question: (Score:2)
I'm Tellin' Y'all It's a Sabotage (Score:2)
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 [fastseduction.com], 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.
Probably OK. (Score:3, Interesting)
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.
me too on the "only if it's patented" thing (Score:3, Interesting)
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.
Depends (Score:5, Insightful)
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.
Re:What to do"? (Score:2)
Re:What to do"? (Score:2)
Only a moron signs a contract on the theory that it is unenforceable, and they deserve what they get.
Re:Experience is not illegal (Score:2)
Re:Experience is not illegal (Score:5, Informative)
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.
Re:This is the death of originality. (Score:2)