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As a programmer, I struggle with the lab notebook. I'd like to keep it digitally along with my other notes, but the legal environment for IP in programming make

As a programmer, I struggle with the lab notebook. I'd like to keep it digitally along with my other notes, but the legal environment for IP in programming makes it scary for me. I've been deposed before, and I'm completely terrified of my notes being used against me. Either as evidence of me somehow attempting to steal IP from my employer (because software patents are a fucking joke) or as evidence that I stole IP from somewhere else. Curious if anyone has advice around this - thanks! I might just be irrationally afraid.

maxerickson 9y ago
If your process doesn't involve stealing IP, why would documenting it increase your risk?
- detaro 9y ago
  If he weren't stealing IP, why would he be taking notes about company IP in a private notebook? Someone asking that question and not liking your answer is the risk.
  - maxerickson 9y ago
    A notebook created on company time obviously belongs to the company, disputing that would certainly be a reason for suspicion, but why would anyone dispute it?
  - gknoy 9y ago
    I take notes about company IP in a notebook _all the time_. Part of my job is to document the things I learn about or create in my notebook, precisely so that we can establish a work timeline on a piece of technology if necessary. I keep dedicated work notebooks, and while most of the time it's a way for me to Write Things during meetings to make sure I prioritize tasks and whatnot, I have quite frequently used them to document new things I'm learning about. Almost anything non-trivial is worth writing about, sketching about, and diagramming the major pieces and relationships. Whether it's a piece of infrastructure that our team might use for packaging and deployment, a workflow for a tool we are building (or needing to cooperate), or even just something cool that a co-worker is presenting about, it ends up in my notebook.
- codemac 9y ago
  Because you "stealing" IP does not require that you stole anything intentionally, it matters when you happened to do the same thing. There are patents for things like paxos, TCP, "network servers" and everything else. If you write down that you looked up a wikipedia page about the topic, and then some notes about your implementation - it may look legally like you stealing IP even though you are doing nothing nefarious.
  - maxerickson 9y ago
    Maybe a patent lawyer can weigh in, but I think it does require intent. Like if your notes demonstrated independent discovery, that wouldn't create any liability. You could be prevented from ongoing use of the IP though.
    - codemac 9y ago
      That's not the impression I got from lawyers in the past, but I think I just have a lot of fear in the area. Getting real legal advice for this is something I should probably do.
    - Silhouette 9y ago
      You might be thinking of wilful infringement, which in some jurisdictions can significantly increase the penalties for infringing some types of IP rights. This in turn can lead to the perverse position that someone doing R&D in a certain field may be advised by their IP lawyer not to read existing research papers or patents, so that at least if they infringe and get sued, they can honestly say they didn't know and it wasn't wilful. Of course this completely undermines the entire principle of publishing knowledge through academic papers, disclosing inventions through patents, and so on.
      - gowld 9y ago
        Not really. The patent is filed with details so that when the patent expires, the design is ready to be disseminated freely without risk of legal challenge.
arcanus 9y ago
I'm a research scientist in industry and I'm mostly puzzled by your concern. I see this an excellent way to document what I have been working on in a rigorous way that could establish prior work. I don't disagree that software patents are unnecessarily broad. The patenting system is largely a relic of the industrial era. Not that patents are not useful, but that the current system has been 'gamified.'
- ColanR 9y ago
  I think OP was referring to their preference for digital notes, which could be (mis?)construed as taking them out of the workplace.
LeonM 9y ago
Disclosure: I'm not a lawyer. This is based om my experience being sued by a previous employer. They was in the EU, laws may be different in other parts of the world. If your (former) employer wants to sue you for IP theft, they must prove the damage you did to them, which is really, really hard. They can't sue you over stuff you learned while you worked somewhere. Your contract may say so, but it wont hold up in court, because you wouldn't be able to do your work without that experience.
V2hLe0ThslzRaV2 9y ago
Fear of having any record used against you by a third-party is a completely rational fear, since as you noted, regardless of your intent, simply viewing third-party IP that is publicly viewable, such as an existing patent, introduces potential claims of theft regardless of the facts. On the flip side, if done correctly, such records can provide supporting evidence that the claimed conflict did not occur. For similar case law, see: https://en.wikipedia.org/wiki/Clean_room_design#Case_law https://en.wikipedia.org/wiki/Clean_room_design#Case_law
osteele 9y ago
I've been deposed, in a case involving my employer of twenty years ago. The defendant was trying to invalidate a patent; one of several at play in a multi-billion-dollar infringement case. The fraction that someone will spend on lawyers in order to avoid a multi-billion-dollar judgement buys a lot of research. The attorneys had everything I'd ever published, for a very loose definition of “published”. They had every article anyone else had published, that mentioned me or thanked me in the acknowledgements. They had papers I didn't know existed, where I'd been credited. I was asked about the content of all of these, and about the history and content of my communications with their authors. I had also been asked to deliver all relevant documents from my time of employment. Nothing had survived all my de-clutterings / house-cleanings from the intervening years. I can only imagine that if I had been able to supply additional fodder for questioning, I would have been deposed for many days instead of just one. I would also have had a greater chance of accidentally giving contradictory answers somewhere in there, by trying to reconstruct events from twenty years ago instead of remembering always to say “I don't recall”. (Learning not to be helpful in conversation was the bulk of the “deposition training” that the plaintiff's attorney provided me, the day before the deposition.)
lazyasciiart 9y ago
It's not clear to me why you are afraid of keeping them digitally rather than physically, but if the issue is using a private service then perhaps you can use a company storage option? I use OneNote and we use Office 365, so my digital work notebook is on work 'property' but still available to me everywhere.

maxerickson 9y ago

If your process doesn't involve stealing IP, why would documenting it increase your risk?

detaro 9y ago
If he weren't stealing IP, why would he be taking notes about company IP in a private notebook? Someone asking that question and not liking your answer is the risk.
- maxerickson 9y ago
  A notebook created on company time obviously belongs to the company, disputing that would certainly be a reason for suspicion, but why would anyone dispute it?
- gknoy 9y ago
  I take notes about company IP in a notebook _all the time_. Part of my job is to document the things I learn about or create in my notebook, precisely so that we can establish a work timeline on a piece of technology if necessary. I keep dedicated work notebooks, and while most of the time it's a way for me to Write Things during meetings to make sure I prioritize tasks and whatnot, I have quite frequently used them to document new things I'm learning about. Almost anything non-trivial is worth writing about, sketching about, and diagramming the major pieces and relationships. Whether it's a piece of infrastructure that our team might use for packaging and deployment, a workflow for a tool we are building (or needing to cooperate), or even just something cool that a co-worker is presenting about, it ends up in my notebook.
codemac 9y ago
Because you "stealing" IP does not require that you stole anything intentionally, it matters when you happened to do the same thing. There are patents for things like paxos, TCP, "network servers" and everything else. If you write down that you looked up a wikipedia page about the topic, and then some notes about your implementation - it may look legally like you stealing IP even though you are doing nothing nefarious.
- maxerickson 9y ago
  Maybe a patent lawyer can weigh in, but I think it does require intent. Like if your notes demonstrated independent discovery, that wouldn't create any liability. You could be prevented from ongoing use of the IP though.
  - codemac 9y ago
    That's not the impression I got from lawyers in the past, but I think I just have a lot of fear in the area. Getting real legal advice for this is something I should probably do.
  - Silhouette 9y ago
    You might be thinking of wilful infringement, which in some jurisdictions can significantly increase the penalties for infringing some types of IP rights. This in turn can lead to the perverse position that someone doing R&D in a certain field may be advised by their IP lawyer not to read existing research papers or patents, so that at least if they infringe and get sued, they can honestly say they didn't know and it wasn't wilful. Of course this completely undermines the entire principle of publishing knowledge through academic papers, disclosing inventions through patents, and so on.
    - gowld 9y ago
      Not really. The patent is filed with details so that when the patent expires, the design is ready to be disseminated freely without risk of legal challenge.

arcanus 9y ago

I'm a research scientist in industry and I'm mostly puzzled by your concern. I see this an excellent way to document what I have been working on in a rigorous way that could establish prior work. I don't disagree that software patents are unnecessarily broad. The patenting system is largely a relic of the industrial era. Not that patents are not useful, but that the current system has been 'gamified.'

ColanR 9y ago
I think OP was referring to their preference for digital notes, which could be (mis?)construed as taking them out of the workplace.

LeonM 9y ago

Disclosure: I'm not a lawyer. This is based om my experience being sued by a previous employer. They was in the EU, laws may be different in other parts of the world. If your (former) employer wants to sue you for IP theft, they must prove the damage you did to them, which is really, really hard. They can't sue you over stuff you learned while you worked somewhere. Your contract may say so, but it wont hold up in court, because you wouldn't be able to do your work without that experience.

V2hLe0ThslzRaV2 9y ago

Fear of having any record used against you by a third-party is a completely rational fear, since as you noted, regardless of your intent, simply viewing third-party IP that is publicly viewable, such as an existing patent, introduces potential claims of theft regardless of the facts. On the flip side, if done correctly, such records can provide supporting evidence that the claimed conflict did not occur. For similar case law, see: https://en.wikipedia.org/wiki/Clean_room_design#Case_law https://en.wikipedia.org/wiki/Clean_room_design#Case_law

osteele 9y ago

I've been deposed, in a case involving my employer of twenty years ago. The defendant was trying to invalidate a patent; one of several at play in a multi-billion-dollar infringement case. The fraction that someone will spend on lawyers in order to avoid a multi-billion-dollar judgement buys a lot of research. The attorneys had everything I'd ever published, for a very loose definition of “published”. They had every article anyone else had published, that mentioned me or thanked me in the acknowledgements. They had papers I didn't know existed, where I'd been credited. I was asked about the content of all of these, and about the history and content of my communications with their authors. I had also been asked to deliver all relevant documents from my time of employment. Nothing had survived all my de-clutterings / house-cleanings from the intervening years. I can only imagine that if I had been able to supply additional fodder for questioning, I would have been deposed for many days instead of just one. I would also have had a greater chance of accidentally giving contradictory answers somewhere in there, by trying to reconstruct events from twenty years ago instead of remembering always to say “I don't recall”. (Learning not to be helpful in conversation was the bulk of the “deposition training” that the plaintiff's attorney provided me, the day before the deposition.)

lazyasciiart 9y ago

It's not clear to me why you are afraid of keeping them digitally rather than physically, but if the issue is using a private service then perhaps you can use a company storage option? I use OneNote and we use Office 365, so my digital work notebook is on work 'property' but still available to me everywhere.