Tuesday, September 27, 2011

Re: Intellectual Property - Laws vs. Practice

Yes, if you create "something" (spreadsheet, TEDDs template, general notes, contract specs, typical detail, etc) while on the company's time and using the company's resources (i.e. the company's computers and computer network and office and electricity), then that "something" is the company's IP.  That is the "black and white" legal view…at least as I understand it in my non-lawyer ways.

I am no lawyer (but I play one on TeeVee…or at least wish I did), but I suspect that things get a bit more "gray" if you create that "something" on your own time (i.e. at home) and most likely on your own resources.  It is definitely "gray" if you do it on your own time but using the company's resources (especially if you don't say own TEDDs or MathCad yourself).  I believe if you are not using any paid company time or company resources, then it still will be your IP, but then as I said, I ain't no lawyer.

Now, in the practical world, it gets a bit more complex.  For a lot of that stuff, it is going to be rather hard to prove that company A has company B's IP.  After all, it is not like you can make general notes, typical details, many structural spreadsheets, etc "unique" enough that you would be able to prove that they "stole" your IP.  fsubb is still M/S, etc, no matter how you spin it.  It would generally take a REAL unique piece of IP for a company to go after a previous employee or some new company that is employing that employee now…at least in my opinion.

And beyond that, for most of this stuff, you generally will have "mutual assured destruction" coming into play.  After all, there is a darn good chance that company B has some of company A's IP while company A has some of company B's IP.

So to me, the reason why you don't see companies getting their panties in a bunch over this kind of stuff is that they realize for the vast majority of such "somethings", they would have a tough time proving it was their and they also know that they likely have someone else's "somethings" floating around their company.  So, they realize that engaging lawyers and suing people would likely do nothing other than make the lawyers rich.

Now, I can imagine the for some isolated cases with some really unique "somethings", then it might be worth it.  One company that I worked for had created a proprietary program (i.e. true, "hardcore" programming to create their own DOS program).  I forget what the program was for as it was so long ago.  But, I could imagine that they might pursue someone for using that program outside of the company.


On Sep 26, 2011, at 12:01 PM, <jadair@shwgroup.com> <jadair@shwgroup.com> wrote:

The listserve has been pretty quiet lately, so I thought I'd see if I can stir up a discussion about something that's been on my mind:  Some recent events at our company have prompted some discussion about intellectual property pertaining to the development and use of an engineer's spreadsheets (or similar tools – programs, Mathcad or Tedds templates, etc. – but I'll refer to them all as "spreadsheets").  My understanding is that the IP laws would say that if an engineer develops a spreadsheet to design or analyze something while in the employment of a company, this is considered "work for hire", and the spreadsheet is owned by the company.  If the engineer leaves, the spreadsheet is to remain with the employer.  However, my experience has been that structural engineers typically ignore such laws and company policies, and assemble over the course of their careers a library of spreadsheets, some of which they have developed themselves and others that they have inherited from coworkers, previous employees, Web sites, etc.  We also tend to add to others' libraries of spreadsheet tools by sharing things that we have developed with coworkers or even friends who may work at other firms.  Consequently, there's a pool full of spreadsheets floating around in the structural community, any portion of which may be in use at any given company at any given time.
Is my experience consistent with what you've experienced in your careers?  Do you agree that a company should own the spreadsheets of its employees developed during the course of employment?  Do your companies typically try to enforce the laws to keep such intellectual property protected?  Is there any simple way to do that?  If they try to protect their IP, do they also respect the IP of others, and ask an incoming employee to leave behind any tools that they may have in their library, and only use those that are developed while in the current engagement?
I'd be interested in hearing your thoughts and experiences.
-- Joel
Joel Adair   PE, LEED® AP BD+C
Lead Structural Engineer
SHW Group
Plano, TX