4 ms·

The other thing to consider is that in California, if your dispute should fall under California law, which I suspect from your post that it does... does not all

by yebyen 12y ago

The other thing to consider is that in California, if your dispute should fall under California law, which I suspect from your post that it does... does not allow or enforce Non-compete on termination agreements with no consideration. You did not mention non-compete, but as a NY resident and when talking about employment and IP, I must always assume that any dispute would center around a non-compete clause rather than IP law, since copyright/patent/trademark are all distinct and are already the law, even in the absence of any signed document or consideration given. So I assume you can only be worried that your agreement will restrict you from competing in the same space; and not that (less charitably) you plan to abscond with some trade secret and publish it/make it the core model of your new startup. In the state of California, it is my understanding that you should worry less about that: non-competes are not valid. A trade secret though, could be protected by an agreement that you signed. Again I am not a lawyer, but I went to Slashdot University back in the 90's and 2000's... I am talking here only about non-competes with no consideration. If there is some consideration (a severance package?) then it would probably have been in exchange for something, and I'll admit there is a decent chance there is still a valid non-compete. But it sounds like you're keen and you'd know alright if you had accepted an offer of some consideration in exchange for something like a non-compete. I don't think those kinds of agreements can be made in California in exchange for just your regular paycheck as the consideration, or as a term of your employment agreement.

tptacek 12y ago
I would be careful with this assumption. A reasonable concern the poster might have is that when he leaves his current job, if he started a venture based on his own IP, his previous employer could shut it down by suing him claiming that they own that IP. That's not an unreasonable problem. In fact, it belongs to a class of "worst kinds of problems": the ones that only become apparent when you're first successful, and threaten to render that success forfeit despite your hard work.
- yebyen 12y ago
  Yeah, that's something I hadn't considered, now more obviously I'm not a lawyer or I wouldn't have begun by assuming that all parties are acting in good faith ^_^ Publishing some documents or code before you had worked there would have been a good first step. Paying careful attention to any open source licenses that were published along with any code that your company might have put out that you want to reuse, from while you worked there, an important second step. Remember that just because it's public, doesn't mean it's open or free. Maybe they have a claim to what you want, and you are more talented than all their engineers: this is an off-the-wall idea, but you might consider licensing some of their IP as an olive branch. I know you said you don't have much money, but you catch more flies with honey than you do with vinegar. You haven't really said why you want to leave, other than "assholes in legal won't return my calls." And going back to what you said tptacek, just because it doesn't exist yet, or it's actually yours, doesn't mean a lawyer can't get his grubby mitts on it anyway. If you haven't thrown in the towel already, maybe there is still a chance you can negotiate for what you want. I'm sure it's not only that countersigned non-disclosure document. Good luck!
- askhnthrowaway 12y ago
  Thank you both for your feedback. Yes, Thomas, something along those lines exactly, although given my personal history it would be more likely that it is an open source project, but maybe something could grow from that. am I being paranoid reading into their playing games with giving me back my copy? And the surprise "consideration" business never mentioned in interview or at any point prior to my asking for my copy? I have the email record of sending that to them.
  - yebyen 12y ago
    I might have been wrong about the consideration business. I am looking for any precedent about that, because I don't really know what I'm talking about, and I found this: http://en.wikipedia.org/wiki/Non-compete_clause#California http://en.wikipedia.org/wiki/Non-compete_clause#California A consideration is something (a payment, etc) which can be said to have been given in exchange for fulfilling the terms of a contract. You would know if you had received one. The wiki post does not mention anything about consideration in California law. There are three conditions that can cause a non-compete to be valid, and that's not one of them. I could be reading too much into omission of this standard from the list, but it would seem that payments would have to be ongoing, and even perhaps that the only recourse if you should choose to compete would be to cut the payments off. I also found this: http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-fillpoint-llc-maas.htm http://www.wsgr.com/WSGR/Display.aspx?SectionName=publicatio... I don't know if you have anything to worry about, you need to decide that for yourself. This story is about a person who sold his business (one of the three reasons a non-compete can be valid in California), worked as an employee, and signed a separate non-compete restricting him from working with potential customers of the company, which was deemed unenforceable under California law. I don't think you're going to have anything to worry about, but I don't know how much of their IP you do or might have. I think it would be unwise to publish anything you produced while an employee of the company, that might be their IP. Certainly going to cause you some delays if you have to re-implement everything you've done since working there, in a cleanroom process, but if it's something you want to pursue after you leave, it might be worthwhile. Here's a good analysis of general situation similar to yours: http://hoviblog.blogspot.com/2008/10/clean-room-defeats-software.html http://hoviblog.blogspot.com/2008/10/clean-room-defeats-soft... If you are not bound by non-compete, you probably have only two things to worry about. Those are copyright and trade secrets. Educate yourself about those two issues, and you should feel more confident about your position. http://levinebakerlaw.com/publications/post-employment-non-competes-unenforceable-in-california/ http://levinebakerlaw.com/publications/post-employment-non-c... This page seems to indicate you have a much stronger position than I first thought. You have the right to compete, it's California. You haven't sold any business, you were never a partner. So, just don't copy anything that's not already public domain, and try not to leverage any proprietary knowledge against your old employer that could be considered a "trade secret". Have a good head about what's confidential and what's protected, and you should be in the right. You may also want to read up on California's "Unfair Practices Act"; though you haven't mentioned a non-compete. The more I read now, the more surprised I am at how many rights you will actually have. http://www.littler.com/publication-press/publication/you-cant-do-what-california-summary-californias-virtually-nonexistent- http://www.littler.com/publication-press/publication/you-can...

by yebyen 12y ago

tptacek 12y ago

I would be careful with this assumption. A reasonable concern the poster might have is that when he leaves his current job, if he started a venture based on his own IP, his previous employer could shut it down by suing him claiming that they own that IP. That's not an unreasonable problem. In fact, it belongs to a class of "worst kinds of problems": the ones that only become apparent when you're first successful, and threaten to render that success forfeit despite your hard work.

yebyen 12y ago
Yeah, that's something I hadn't considered, now more obviously I'm not a lawyer or I wouldn't have begun by assuming that all parties are acting in good faith ^_^ Publishing some documents or code before you had worked there would have been a good first step. Paying careful attention to any open source licenses that were published along with any code that your company might have put out that you want to reuse, from while you worked there, an important second step. Remember that just because it's public, doesn't mean it's open or free. Maybe they have a claim to what you want, and you are more talented than all their engineers: this is an off-the-wall idea, but you might consider licensing some of their IP as an olive branch. I know you said you don't have much money, but you catch more flies with honey than you do with vinegar. You haven't really said why you want to leave, other than "assholes in legal won't return my calls." And going back to what you said tptacek, just because it doesn't exist yet, or it's actually yours, doesn't mean a lawyer can't get his grubby mitts on it anyway. If you haven't thrown in the towel already, maybe there is still a chance you can negotiate for what you want. I'm sure it's not only that countersigned non-disclosure document. Good luck!
askhnthrowaway 12y ago
Thank you both for your feedback. Yes, Thomas, something along those lines exactly, although given my personal history it would be more likely that it is an open source project, but maybe something could grow from that. am I being paranoid reading into their playing games with giving me back my copy? And the surprise "consideration" business never mentioned in interview or at any point prior to my asking for my copy? I have the email record of sending that to them.
- yebyen 12y ago
  I might have been wrong about the consideration business. I am looking for any precedent about that, because I don't really know what I'm talking about, and I found this: http://en.wikipedia.org/wiki/Non-compete_clause#California http://en.wikipedia.org/wiki/Non-compete_clause#California A consideration is something (a payment, etc) which can be said to have been given in exchange for fulfilling the terms of a contract. You would know if you had received one. The wiki post does not mention anything about consideration in California law. There are three conditions that can cause a non-compete to be valid, and that's not one of them. I could be reading too much into omission of this standard from the list, but it would seem that payments would have to be ongoing, and even perhaps that the only recourse if you should choose to compete would be to cut the payments off. I also found this: http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-fillpoint-llc-maas.htm http://www.wsgr.com/WSGR/Display.aspx?SectionName=publicatio... I don't know if you have anything to worry about, you need to decide that for yourself. This story is about a person who sold his business (one of the three reasons a non-compete can be valid in California), worked as an employee, and signed a separate non-compete restricting him from working with potential customers of the company, which was deemed unenforceable under California law. I don't think you're going to have anything to worry about, but I don't know how much of their IP you do or might have. I think it would be unwise to publish anything you produced while an employee of the company, that might be their IP. Certainly going to cause you some delays if you have to re-implement everything you've done since working there, in a cleanroom process, but if it's something you want to pursue after you leave, it might be worthwhile. Here's a good analysis of general situation similar to yours: http://hoviblog.blogspot.com/2008/10/clean-room-defeats-software.html http://hoviblog.blogspot.com/2008/10/clean-room-defeats-soft... If you are not bound by non-compete, you probably have only two things to worry about. Those are copyright and trade secrets. Educate yourself about those two issues, and you should feel more confident about your position. http://levinebakerlaw.com/publications/post-employment-non-competes-unenforceable-in-california/ http://levinebakerlaw.com/publications/post-employment-non-c... This page seems to indicate you have a much stronger position than I first thought. You have the right to compete, it's California. You haven't sold any business, you were never a partner. So, just don't copy anything that's not already public domain, and try not to leverage any proprietary knowledge against your old employer that could be considered a "trade secret". Have a good head about what's confidential and what's protected, and you should be in the right. You may also want to read up on California's "Unfair Practices Act"; though you haven't mentioned a non-compete. The more I read now, the more surprised I am at how many rights you will actually have. http://www.littler.com/publication-press/publication/you-cant-do-what-california-summary-californias-virtually-nonexistent- http://www.littler.com/publication-press/publication/you-can...