Rajah Lehal

As a Programmer, Are You Committing Intellectual Property Theft by Abstracting Ideas Learned at Work Into a SaaS Product?

February 24, 2017

In this day and age, technology is taking over every aspect of our lives. Ideas developed for one area can be modified with ease and adopted in another area. If you are starting your own business, you need to protect your intellectual property to avoid someone else using your hard work in a different market. But what if you come up with an idea while working on a different project?

What is intellectual property theft?

Intellectual property theft is the stealing of creative ideas. In the area of start-up businesses, intellectual property is a huge concern. After all, you are dealing with new ideas in its early stages with significant progress to be made. As a programmer, you come across new ideas all the time, which may inspire some ideas of your own. The challenge is making sure that you aren’t taking anything that is not yours. The line between committing intellectual property theft and the creation of new ideas is not always clear, but the agreements you have signed as a developer may give you some clues about where to draw the line.

Master Service Agreement

If you are performing work for someone, your specific tasks, duties, and obligations should be clearly outlined. A well-drafted Master Service Agreement will define your intellectual property rights as of before the work begins with the developer, while the work is in progress, and after the work is completed. These definitions are extremely important and often hotly negotiated, as is the ownership of these types of intellectual property. You may wish to make sure that the definition of client confidential information is not so broad that it includes all ideas developed during the term of the agreement.

Employment Agreement

If you are an employee, the rights you have as a developer may be a bit more limited. Most employment contracts will contain language which requires you to transfer all rights to intellectual property created during the course of your employment. Some agreements allow employees to develop ideas independently, if they are developed outside of work time and without the use of employer intellectual property or confidential information.

Under the Copyrights Act, if the work is created in the course of employment under a contract of service, then the employer will be the owner of the copyright in the work created by the employee. What this means is that you cannot retain any rights to work created during the course of your employment if you do not have an agreement that allows you to retain that right. Copyright includes artistic work but may be much broader and can include work related to technology.

Under the Patent Act, courts have decided that the employee will retain ownership pursuant to two (2) exceptions. First, if you are “hired to invent”, which means hired for the purpose of creating ideas for your employer, then you would not be able to claim those ideas as your own. Your employer retains those rights and any ideas that you have. The second exception allows the employer to obtain the rights if you transfer those rights to the employer in an agreement.

Employment Agreement
Ownership of Intellectual Property
Master Services Agreement

Written by Rajah. Rajah Lehal is Founder and CEO of Clausehound.com. Rajah is a legal technologist and technology lawyer who is, together with the Clausehound team, capturing and sharing lawyer expertise, building deal negotiation libraries, teaching negotiation in classrooms, and automating negotiation with software.