Legal Question in Business Law in California

Re: Ideas are patentatble?

In order for an employer to claim that a former employee cannot compete with the employer, a written agreement must be signed by the parties. Covenants not to compete are generally narrowly construed in California and, while legal, they cannot prevent competition which would result in the former employee being unable to work in California in the same field.

With respect to the writing of your business plan, that would depend upon what your job will be. For instance, if you are hired to write a business plan for your employer, and do so during your normal business hours, anything you write belongs to your employer. On the other hand, if your job is in sales, for example, and your write your business plan "on your own time," it would be difficult for your employer to claim any right to your writings.

Finally, the type of writing you inquire about is not "patentable." The owner of the writing does, however, have a copyright interest in the work. If the work belongs to you (i.e. you write it on your own time), you would have copyrights in that work.

Re: Ideas are patentatble?

Covenants not to compete between an employer and an employee are out-and-out illegal in California. Non-compete covenants are enforced in sale-of-business situations, not employer-employee situations.

Trade secrets and intellectual property, however, present an entirely different set of rules. A former employee may not use his former employer's trade secrets or intellectual property unless he has some sort of permission or license to do so.

Anything you develop on your employer's clock is likely to be considered the employer's property. This would include business plans, etc. All business plan writing should be done at home on your own computer. Avoid using the employer's time, computer, phones (including company-furnished cellphones) and FAX machines for anything connected with a possible comeptitive venture.

Avoid using anything learned at your former employer's relating to any trade secret including customer data going beyond what's in trade directories. Information gained about customer needs and preferences in the course of a marketing job is trade secret. It is not necessary that you have signed a confidentiality agreement to be guilty of misappropriation of trade secrets. Also, suits are common.

For the foregoing reasons, it is preferable not to take employment too closely related to patent ideas you're already working on....a judge or jury may not believe you haven't filched at least an idea or concept from the employer, or haven't used employer time to further your own work.

If you must take the job, keep meticulous notes showing that you did your inventing at home, then cross your fingers.

Re: Ideas are patentatble?

You have several issues that you have asked about. With regard to work that you perform for your employer, that is generally owned by the employer. It may be a bit different if you are an independent contractor depending upon what you are being hired to do.

Regarding issues of non-compete agreements, please see the following article http://www.donnerlaw.com/new_page_5.htm

to get a general idea on non-compete agreements. In many, if not most, cases the agreement will not be enforceable. It will not, however, prevent an employer from pursuing a claim against you alleging that you breached the agreement and took their trade secrets and intellectual property. Most people don't have the financial ability to then defend themselves in the lawsuit filed by the former employer.

There are, however, ways to protect yourself such as a written acknowledgement BEFORE employment begins that you have this idea that is YOUR proprietary idea/product and the employer agrees not to use the idea. Or, an agreement that things that you develop not during business hours belong to you.

J. Caleb Donner

DONNER & DONNER

LEGAL WARRRIORS (R)

325 E. Hillcrest Drive, Suite 242

Thousand Oaks, CA 91360

Tel: 805-494-6557

Fax: 805-494-0990

email: [email protected]

website: www.donnerlaw.com

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This reply constitutes legal information for education purposes and does NOT constitute legal advice nor establish an attorney-client relationship. We will only represent you based on a written retainer agreement. Therefore, you should contact this office to discuss representation if you do want legal advice/representation.