Legal Question in Intellectual Property in Texas

Is there a litmus test for software ownership?

I am a full-time programmer at a small niche software development company, and I believe that a variant of a program I have written at work might be of use to a much larger audience than that which my employer targets. By variant, I mean one of two things. One variant is a program skeleton, which is a generalization of the core of the program I have written for my employer. This core constitutes 25%-50% of the source code in the full program and very similar code can likely be found in programs at many companies. The second variant is a complete program that contains the generalized core plus custom code unique to various industries/customers. My questions are these: 1) Are ALL software ideas generated while I am employed by my employer owned by my employer? 2) Is it possible that I might have some claim to ownership of one or both software variants described above? 3) If I proposed to my current employer pursuing one or both software variants as a new business opportunity for our company, would it be reasonable to request royalties/remuneration? Is there any precedent for this? If so, are there any guidelines for determining a fair percentage to request?


Asked on 12/06/02, 11:56 am

2 Answers from Attorneys
Bruce Burdick Burdick Law Firm

Re: Is there a litmus test for software ownership?

Your software in all the situations you mentioned is likely to belong to the employer under work for hire principles. There are techiques to avoid that result in advance and there are techniques to rectify situations like yours if the employer is not strict on such things. Realize that from the employer's viewpoint, these issues will call your loyalty into question and may not be worth risking your job.

Call a licensed Texas lawyer versed in copyright and employment law issues for more detailed advice. I am a Texan (living in Illinois) and am licensed in Texas but would likely refer you to a local copyright lawyer for your convenience. If you approach this correctly, you may be able to turn this "problem" into an opportunity.

Read more
Answered on 12/08/02, 1:11 am
Michael Paradise Law Offices of Michael S. Paradise

Re: Is there a litmus test for software ownership?

In answering this question, I assume that you have no written employment agreement with your employer.

Normally, any idea you create that has been reduced to a tangible form of expression (e.g. software) belongs to your employer, if it is developed by you in connection with your employment. If, however, you develop software in your spare time and the software is completely independent of your work, you would most probably be the owner of that software (assuming of course that you did not use any of your employer's assets in such development).

The business questions that you ask do not have clear cut answers. Without divulging details, you may want to broach the idea that you believe you might be able to develop a separate application for the software, not related to your employer's business; and see what response you get. However, you run the risk that your employer might demand that you disclose the idea and if you do not, you may sour your relations.

I hope this helps. Feel free to contact me if you want to explore your matter further.

Read more
Answered on 12/06/02, 12:40 pm


Related Questions & Answers

More Intellectual Property questions and answers in Texas