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Why is hiring from a company an issue. The company may have a point about their IP being looted but they don’t own these employees. Assuming the employees only

Why is hiring from a company an issue. The company may have a point about their IP being looted but they don’t own these employees. Assuming the employees only brought their know how and not actual technology and software, I don’t see the issue here. Would they not be allowed to use their expertise to develop a like system without violating the existing patent?

bdcravens 3y ago
Those employees can totally create a cleanroom implementation, true. That's very difficult in any domain. I could totally create software that does what my employer does, but could I do it without using any of the solutions I specifically created for them? It would be a challenge.
- deleted 3y ago
  [deleted]
- bdowling 3y ago
  The restrictions are only against using protectable trade secrets or patented technology. Protectable trade secrets don't include things that are generally known within an industry or that the prior employer didn't treat as a trade secret (e.g., didn't take steps to prevent from becoming generally known).
  - bdcravens 3y ago
    Sure. In my case, I'm thinking about problems I've solved that there are no known solutions for, that I essentially had to invent while on the job.
itg 3y ago
Hard to feel bad for Apple here, since they do the same thing https://www.reuters.com/legal/litigation/apple-lawsuit-says-stealth-startup-rivos-poached-engineers-steal-secrets-2022-05-02/ https://www.reuters.com/legal/litigation/apple-lawsuit-says-...
- renewiltord 3y ago
  > Apple's Friday lawsuit said Mountain View, California-based Rivos has hired over 40 of its former employees in the past year to work on competing "system-on-chip" (SoC) technology, and that at least two former Apple engineers took gigabytes of confidential information with them to Rivos. Well you can't go around taking your employer's data with you.
  - bdcravens 3y ago
    That also includes the employer's data you keep in your head.
    - jrockway 3y ago
      I was recently reading the New York Court of Appeals ruling on People v Aleynikov, which involves someone copying Goldman Sachs's software and taking it to a new startup. New York has a criminal offense called "Unlawful use of secret scientific material" that covered this case. Aleynikov argued that it only covers tangible representations of scientific material (which the court ruled covers computer source code), and that computer files are not tangible. The court disagreed, but did say: Defendant contends that if "tangible" means "having physical form," then the statutory term "tangible reproduction" would involve a redundancy because all computer data is stored in some physical medium. We disagree. Someone with a photographic memory who memorized a piece of source code would not be making a tangible reproduction of the code (see generally Bottone, 365 F2d at 393 [referring to a hypothetical "case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed"]). It is true that copying secret scientific material solely by memorizing it would not fall under the statute for a separate reason, i.e., that{*31 NY3d at 400} it would not be "writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material" (Penal Law § 165.07). Nevertheless, the word "tangible," as we interpret it, does not introduce redundancy; it adds a modest element to "reproduction," serving to emphasize that the crime consists in making a physical, not a mental, copy of secret scientific material. (From: https://www.nycourts.gov/reporter/3dseries/2018/2018_03174.htm https://www.nycourts.gov/reporter/3dseries/2018/2018_03174.h...) So anyway, you're not violating New York State law if you remember how your system works and you take it to your next employer. Contracts you sign and patent law still exist, however.
smoldesu 3y ago
> Would they not be allowed to use their expertise to develop and like system without violating the existing patent? Maybe, but that's kinda the point of this lawsuit. As Apple implemented it, they did violate portions of the patent. Not every part of their claim was considered a violation, but some of it certainly was: > As a result, the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent. https://www.usitc.gov/system/files?file=secretary/fed_reg_notices/337/337_1276_notice10262023sgl.pdf https://www.usitc.gov/system/files?file=secretary/fed_reg_no...
- bdowling 3y ago
  Note: To infringe a patent, the allegedly infringing activity has to match every element of at least one claim of the patent.
harimau777 3y ago
If I'm understanding it correctly, the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees. If that's true, then it's certainly dishonest even if it isn't illegal. It could also be concerning if large companies can smother smaller competitors in the cradle.
- m3kw9 3y ago
  This happens all the time, imagine every deal goes thru, it doesn’t, and there will be meetings. Could be that their asking price was too high and it went thru and Apple hires some of them instead(legally), but the employees was dumb enough to use their knowledge of their previous product too much
- Someone 3y ago
  > the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees If that was their plan, and they weren’t stupid, that will be extremely hard to prove. Reason: if their plan was “we want to have this tech” and started talks in good faith that led nowhere, the same easily could have happened. It’s a standard negotiation tactic to let ‘them’ know/think that you have alternatives, so during negotiations, Apple may have hinted that they would do it themselves if negotiations broke down, with the side effect of informing personnel of Masimo that opportunities might become available if negotiations broke down. If, after negotiations broke down, Apple really decided “let’s do it ourselves” and put up job descriptions, I don’t think they’d have to explicitly call Masimo personnel to apply for those jobs, as they’ll know there are good career opportunities there. > It could also be concerning if large companies can smother smaller competitors in the cradle. I think that’s unavoidable. If SmallCo has a feature in their product that BigCo doesn’t have, commenters will deride them for it. If they add it in basic form, commenters will also deride them for it, and if they add it in superior form, commenters will also deride them for it, calling it Sherlocking. The only way to prevent that would be to pay SmallCo for permission to clone the feature. If SmallCo, knowing that, sets an unrealistic price, what can BigCo do, other than ending negotiations and building the feature themselves? If they don’t build it at, commenters will deride them for it, so that’s not an option.
HumblyTossed 3y ago
> Why is hiring from a company an issue. > The company may have a point about their IP being looted ... > Would they not be allowed to use their expertise to develop a like system without violating the existing patent? I mean, come on. Taking the IP and the employees ...
gumby 3y ago
In particular in California where non-competes are illegal and unenforceable (no idea if Massimo had noncompetes, just underlining your point). However the basis of the suit was fraudulent representation: Apple lost on the basis that they were found to be pretending to buy the company or license the tech. Have no idea if this is Apple's typical M.O. though I doubt it solely on the fact that these suits are rarely brought and they would be a juicy target. I saw Google do this to a company I was loosely connected to. Because they were in acquisition discussions I was more closely involved than normal (but not in any inter-party meetings). My interpretation of events was incompetence on Big G's acquisition team rather than actual malice. It was a big deal for the startup but rather small for G and it didn't look like they had sent the A team over to do the deal. I have no idea what really happened with Massimo/Apple beyond a few reports in the press.
jacquesm 3y ago
Typical part of an acquisition process is a 'terms sheet' and usually terms sheets contain very explicit non-poaching clauses to stop the company that says they want to acquire doing an end run around the process by bulk hiring the people instead of acquiring the stock.
- deepsun 3y ago
  Non-poaching agreements are illegal in California (they are considered no-compete agreements that harm competition).

bdcravens 3y ago

Those employees can totally create a cleanroom implementation, true. That's very difficult in any domain. I could totally create software that does what my employer does, but could I do it without using any of the solutions I specifically created for them? It would be a challenge.

deleted 3y ago
[deleted]
bdowling 3y ago
The restrictions are only against using protectable trade secrets or patented technology. Protectable trade secrets don't include things that are generally known within an industry or that the prior employer didn't treat as a trade secret (e.g., didn't take steps to prevent from becoming generally known).
- bdcravens 3y ago
  Sure. In my case, I'm thinking about problems I've solved that there are no known solutions for, that I essentially had to invent while on the job.

itg 3y ago

Hard to feel bad for Apple here, since they do the same thing https://www.reuters.com/legal/litigation/apple-lawsuit-says-stealth-startup-rivos-poached-engineers-steal-secrets-2022-05-02/ https://www.reuters.com/legal/litigation/apple-lawsuit-says-...

renewiltord 3y ago
> Apple's Friday lawsuit said Mountain View, California-based Rivos has hired over 40 of its former employees in the past year to work on competing "system-on-chip" (SoC) technology, and that at least two former Apple engineers took gigabytes of confidential information with them to Rivos. Well you can't go around taking your employer's data with you.
- bdcravens 3y ago
  That also includes the employer's data you keep in your head.
  - jrockway 3y ago
    I was recently reading the New York Court of Appeals ruling on People v Aleynikov, which involves someone copying Goldman Sachs's software and taking it to a new startup. New York has a criminal offense called "Unlawful use of secret scientific material" that covered this case. Aleynikov argued that it only covers tangible representations of scientific material (which the court ruled covers computer source code), and that computer files are not tangible. The court disagreed, but did say: Defendant contends that if "tangible" means "having physical form," then the statutory term "tangible reproduction" would involve a redundancy because all computer data is stored in some physical medium. We disagree. Someone with a photographic memory who memorized a piece of source code would not be making a tangible reproduction of the code (see generally Bottone, 365 F2d at 393 [referring to a hypothetical "case where a carefully guarded secret formula was memorized, carried away in the recesses of a thievish mind and placed in writing only after a boundary had been crossed"]). It is true that copying secret scientific material solely by memorizing it would not fall under the statute for a separate reason, i.e., that{*31 NY3d at 400} it would not be "writing, photographing, drawing, mechanically or electronically reproducing or recording such secret scientific material" (Penal Law § 165.07). Nevertheless, the word "tangible," as we interpret it, does not introduce redundancy; it adds a modest element to "reproduction," serving to emphasize that the crime consists in making a physical, not a mental, copy of secret scientific material. (From: https://www.nycourts.gov/reporter/3dseries/2018/2018_03174.htm https://www.nycourts.gov/reporter/3dseries/2018/2018_03174.h...) So anyway, you're not violating New York State law if you remember how your system works and you take it to your next employer. Contracts you sign and patent law still exist, however.

smoldesu 3y ago

> Would they not be allowed to use their expertise to develop and like system without violating the existing patent? Maybe, but that's kinda the point of this lawsuit. As Apple implemented it, they did violate portions of the patent. Not every part of their claim was considered a violation, but some of it certainly was: > As a result, the Commission finds that Apple has violated section 337 as to claims 22 and 28 of the ’502 patent and claims 12, 24, and 30 of the ’648 patent. https://www.usitc.gov/system/files?file=secretary/fed_reg_notices/337/337_1276_notice10262023sgl.pdf https://www.usitc.gov/system/files?file=secretary/fed_reg_no...

bdowling 3y ago
Note: To infringe a patent, the allegedly infringing activity has to match every element of at least one claim of the patent.

harimau777 3y ago

If I'm understanding it correctly, the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees. If that's true, then it's certainly dishonest even if it isn't illegal. It could also be concerning if large companies can smother smaller competitors in the cradle.

m3kw9 3y ago
This happens all the time, imagine every deal goes thru, it doesn’t, and there will be meetings. Could be that their asking price was too high and it went thru and Apple hires some of them instead(legally), but the employees was dumb enough to use their knowledge of their previous product too much
Someone 3y ago
> the assertion is that Apple feigned interest in collaboration as a pretext to put themselves in a position to hire away employees If that was their plan, and they weren’t stupid, that will be extremely hard to prove. Reason: if their plan was “we want to have this tech” and started talks in good faith that led nowhere, the same easily could have happened. It’s a standard negotiation tactic to let ‘them’ know/think that you have alternatives, so during negotiations, Apple may have hinted that they would do it themselves if negotiations broke down, with the side effect of informing personnel of Masimo that opportunities might become available if negotiations broke down. If, after negotiations broke down, Apple really decided “let’s do it ourselves” and put up job descriptions, I don’t think they’d have to explicitly call Masimo personnel to apply for those jobs, as they’ll know there are good career opportunities there. > It could also be concerning if large companies can smother smaller competitors in the cradle. I think that’s unavoidable. If SmallCo has a feature in their product that BigCo doesn’t have, commenters will deride them for it. If they add it in basic form, commenters will also deride them for it, and if they add it in superior form, commenters will also deride them for it, calling it Sherlocking. The only way to prevent that would be to pay SmallCo for permission to clone the feature. If SmallCo, knowing that, sets an unrealistic price, what can BigCo do, other than ending negotiations and building the feature themselves? If they don’t build it at, commenters will deride them for it, so that’s not an option.

HumblyTossed 3y ago

> Why is hiring from a company an issue. > The company may have a point about their IP being looted ... > Would they not be allowed to use their expertise to develop a like system without violating the existing patent? I mean, come on. Taking the IP and the employees ...

gumby 3y ago

In particular in California where non-competes are illegal and unenforceable (no idea if Massimo had noncompetes, just underlining your point). However the basis of the suit was fraudulent representation: Apple lost on the basis that they were found to be pretending to buy the company or license the tech. Have no idea if this is Apple's typical M.O. though I doubt it solely on the fact that these suits are rarely brought and they would be a juicy target. I saw Google do this to a company I was loosely connected to. Because they were in acquisition discussions I was more closely involved than normal (but not in any inter-party meetings). My interpretation of events was incompetence on Big G's acquisition team rather than actual malice. It was a big deal for the startup but rather small for G and it didn't look like they had sent the A team over to do the deal. I have no idea what really happened with Massimo/Apple beyond a few reports in the press.

jacquesm 3y ago

Typical part of an acquisition process is a 'terms sheet' and usually terms sheets contain very explicit non-poaching clauses to stop the company that says they want to acquire doing an end run around the process by bulk hiring the people instead of acquiring the stock.

deepsun 3y ago
Non-poaching agreements are illegal in California (they are considered no-compete agreements that harm competition).