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Tell HN: Why do we software engineers put up with this?

6 pointseternalban7 comments

This is the 'inventions' clause of an employment agreement that was presented to me recently, by an NYC based company. The role was software engineering for a non-software tech company.

   I understand that “Inventions” means discoveries, developments, 
   concepts, designs, ideas, know how, improvements, inventions, trade 
   secrets and/or original works of authorship, whether or not patentable,
   copyrightable or otherwise legally protectable. I understand this 
   includes, but is not limited to, any new product, machine, article of
   manufacture, biological material, method, procedure, process, technique,
   use, equipment, device, apparatus, system, compound, formulation, 
   composition of matter, design or configuration of any kind, or any
   improvement thereon. I understand that “Company Inventions” means any 
   and all Inventions that I may solely or jointly author, discover, 
   develop, conceive, or reduce to practice during the period of the
   Relationship.

The "biological material" bit actually cracked me up and reminded me of a work by William Shakespeare.

After 'discussion' with their head of legal, it became clear that they really did consider entitled to "review" any mind product of their employees with the verbal assurance that "of course, if you write the great American novel, I will certainly not recommend asserting ownership over it". This said by the same person that had tacked the following in the very same agreement to enter into (apparently) total servitude.

"This letter sets forth the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior or contemporaneous discussions, understandings and agreements, whether oral or written, between them relating to the subject matter hereof."

"Everyone in our company has signed the same agreement." emitted the said shyster. Apparently everyone in their company is a chump.

California:

2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either:

(1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or

(2) Result from any work performed by the employee for the employer.

(b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable.

Isn't life funny sometimes? Just this morning I was thinking about this kind of thing and how it makes no sense. Setting aside contexts where an employee couldn't have "Invented" something without company assets (laboratory equipment, etc.) and that being precisely their task, I don't see how it is in any way moral that, if a person who gets paid to write simple software and maybe stumbles upon a solution that is way beyond the scope of their job, should not own all rights to this intellectual property. But it's a difficult situation and I could probably fill pages with my opinion alone regarding when and when not this kind of thing makes sense. Looking forward to other peoples opinions though :)

I once faced a similar, but not quite as comprehensive inventions section to an employment agreement.

The clause that I contested and clarified was the "know how".

My point was imagine that I don't know technology X (lets say SQL) before starting this position but because the job ends up involving daily use of SQL I gain a lot of 'know how' during my 3 years working here. Now, when I leave there is a pretty clear case that I cannot go get another job using SQL because that 'know how' was largely gained on the job. I understand protecting trade secrets but 'know how' is way too broad.

I recall that we rewrote that section, and another one before I signed, but I almost didn't sign then because it was so restrictive.

Because software engineers are so dumb they think they're so smart they don't need to organize/unionize.

I've pushed back more than once on this kind of thing and they ended up giving in or allowing an exceptions section where you can write in personal projects, such as music, novels, or even apps/side (code) projects I had going on.

No such luck here. Rather amusingly, he objected to my "when off the clock" with "we're not a sweat shop that you punch in for 60 hour work weeks!" That made me reconsider my prior opinion of sweat shops. /g

To be perfectly clear here, I made it abundantly clear that my concern was regarding works not related to the company's domain, created during my personal time (see above:), and using my own equipment.

Well this is the classic NYC employer perspective - it's impossible for you to be inventing things "off the clock" because you will never have the opportunity to be "off the clock". In their mind, unless you are sleeping or dead, you should be working... Good luck.

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