Intellectual Property 7

[crunchie12268]

Hello. I recently left a company where I was doing machine design work for a piece of equipment that would give the company a competitive advantage in their market. I did sign a confidentiality agreement also.

I believe I could make several improvements to the machine that would make it safer and easier to use. If I did this would there be any liability to selling the design to another company? I would first take it to the company I worked for and explain that it is faster, better quality, safer etc. and give them the opportunity to buy the design. If they say no, and I bring it elsewhere would it be illegal?

 

[IRstuff]

"Can you start from scratch right now, using only publicly available information, and develop the same concept? If you do, and document that process, then I imagine you'd be fine* after any non-compete dust settles."

Seems to me that this would be hard to conclusively prove in court, since you already have the confidential information and the work experience and can't reset your brain, so how clean is it really? Given that the burden of proof in civil court is lower than in criminal court, the fact that you have confidential IP already in your possession makes it unlikely that anyone would not think that your usage and documentation of public information is just a smokescreen to obfuscate the fact that you already had confidential information. If you didn't have the confidential information, could you possibly conclude that the public information was even correct at all? And had you not worked there, why you would you even be interested in an improvement on the company's product? The only plausibly deniable situation is if you have a long history of independent inventions that are similar in nature and that there is some natural connection between previous inventions and the new one.


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Of course I can. I can do anything. I can do absolutely anything. I'm an expert!

 

[glass99]

IRstuff + 1gibson: Could you argue that you arrived at the same result because you started with the same input parameters and the result of your rational engineering process using publicly available analysis techniques and data led you to the same design? You did not reuse analysis from a previous client or reuse test data, you merely started from scratch. Crunchie's old client can not own the fact that 1 + 1 = 2.

This is similar to the dispute between Apple and Samsung which was decided last year. Apple tried to argue that their rounded corners of the iPhone were their proprietary technology, and Samsung argued they are just a rational engineering response to a technical constraint.

 

[1gibson]

Glass, exactly.

The skill set required to interpret the public domain information and transform it into a valuable design, your skill set, is not owned by a previous employer. Even if a non-compete is in place, they still don't own your skill set, they just have the right to prevent you from using it temporarily.

If the documentation is completely supported with citations from public resources, then what IP was used? That's what I'm getting at. If you go that route and are missing one piece of the puzzle that you memorized as an employee but can't find publicly available, then you're sunk.

If you walked out on your last day with a 100% completed design (whether in physical, digital, or memorized format) that you never shared with anyone, and you deleted all traces of it from your workplace so the company would not have the information, then that is a different story and obviously not ethical, or legal.

If that's the case, I suppose you could go straight to a lawyer and ask if they can help you get away with it, but that's not a question to be asked here.

 

[IRstuff]

"Could you argue that you arrived at the same result because you started with the same input parameters and the result of your rational engineering process using publicly available analysis techniques and data led you to the same design? You did not reuse analysis from a previous client or reuse test data, you merely started from scratch. Crunchie's old client can not own the fact that 1 + 1 = 2."

You could attempt such an argument, but in most cases of this type, the knowledge and skill required is rather esoteric, and you would need to convince a judge that you didn't simple reformulate your previous analyses with a new one that just jiggles a few values around. It's been my experience, albeit limited, that even when 6 people collaborate to cheat on a design, they will attempt to make the designs different, but not realize that there are critical design points that are inherently unique in truly unique and separate designs beyond superficial tweaks. To wit, say your employer has a copy of your original calculations; your attempt at obfuscating your new calculations will likely fail, because the inherent flow and thinking process that's unique to you will wind up reflected in the calculations, particularly errors in thinking.

As an example, we built a chip at a previous company, but the original designers left the company and started a new one to compete with us. They designed an identically functional chip in a different technology, and claimed that they didn't take any IP with them. Yet, when first silicon was fabbed, it turned out that there was an error that was identical to an error we fixed on the original chip AFTER they had already left the company. Had they truly started with a blank sheet with no intimate knowledge of the original chip, they most likely would not have gotten that output wrong.

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[IRstuff]

Oh, I left off a bit about the 6 guys; their downfall, aside from designs that were about 95% identical, was that they all made the same mistake in grounding one particular circuit.

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Of course I can. I can do anything. I can do absolutely anything. I'm an expert!

 

[glass99]

1gibson: if indeed you are correct, it raises the important distinction between a confidentiality agreement and a non-compete agreement. Crunchie should be free to recreate the design from scratch for another client if only bound by a confidentiality agreement.

 

[glass99]

IRStuff: What happened to the 6 guys? Did your company sue them? Are they still in business?

 

[IRstuff]

They were actually grad students, in a class that I was the TA, and wound up failing the class. It was pretty silly because it probably would have taken only about a day to come up with a truly unique design.

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[glass99]

Did the Intel founders act unethically when they peeled off from Fairchild semiconductor? When the "Traitorous Eight" including Bob Noyce and Gordon Moore (of Moore's law fame) left Fairchild they took a bunch of IP which they had personally developed under William Shockley's supervision related to the mass production of transistors. Would the world be a better place had Intel never existed?

 

[IRstuff]

"Would the world be a better place had Intel never existed?"

Is someone really comparing themselves to the founders of Intel to justify their own lack of ethics?

Note that the founders of Intel left because Fairchild really wasn't that interested in building MOS devices, given that they were a bipolar powerhouse, and they remained so, well into the CMOS era. Fairchild had a good thing going with op amps and logic chips, and was not interested in building calculator and memory chips, which were the original mainstays of Intel's business. In effect, Fairchild exercised their refusal rights by declining to support MOS development. So, possibly, IP was transferred, but it had been discarded and deprecated by Fairchild.

As late as 1987, Fairchild's main business was still in linear and digital bipolar, not MOS. They had only just started to produce 7400 series CMOS devices, and while they did have an MOS microprocessor unit, it was quite weak and basically unsupported by the corporation and an unsupportable endeavor. They attempted to jump-start their microprocessor business by leap-frogging to a 32-bit RISC processor, but by that time, Motorola and Intel were completely dominating the microprocessor market. Fairchild also attempted to second source National's 16032 processor line, but that also proved to be unsupportable, given that National was not doing particularly well selling their own product. Oh, Fairchild was moderately successful in the CCD and memory arena in the late 70s and early 80s, but TCE groundwater contamination and a fatal design bug in the 64k DRAM sealed the San Jose memory division's fate. Fairchild's CMOS imaging products division is still surviving, primarily selling to scientific applications. As another proof of Fairchild's previous lack of interest in MOS and CMOS, one of the former presidents of Fairchild founded LSI logic, which was a premier CMOS gate array house for quite a while.

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Of course I can. I can do anything. I can do absolutely anything. I'm an expert!

 

[RolMec]

Some stuff here seems pretty bent to me. Even if just "imagined". Why spread the "Poor me I was treated so badly, but now I'll hit back" mentality at all.
However, lots of the other posts which give knowledge about one's rights are superb, there should be like a manual made out of that to be handed out to all those in need..
Noncompete clauses are part of the pay, in my understanding. But must be carefully worded in the first place, as to what specific IP is protected. Never ever sign "broad" noncompete clauses, in todays world. Whoever tries to do this to you does not want you any good, neither now nor later.
Regards
R.