Using hobby source code in your job ?

[Richard Bos]

It seems to me that most programmers, especially contractors who go
from job to job, reuse code they either did as a hobby or wrote for
some other employer. It's just that they don't copy and paste it line
by line, they modify it for the most current use, and obfuscate it as
well.

[big snip]

IANAL, but some things simply aren't patentable or subject to
copyright. Who has the patent on white flour?

McDonalds, surely? "Method of refining grain for use in buns surrounding
minced offal".
Oh, wait, no, that's not a _software_ patent. The USA's patent law
"Completely transparent ploy for approval by utter morons" clause
doesn't apply. Poor McDonalds... not even up to Microsoft standards.

My point is that to enforce patents or copyright, it is necessary to
prove that the design of a product,

Was. _Was_ necessary. Hasn't been for years, in our industry. Remember
the one-click patent? The copyright on the smiley?

Richard

 

[Bruce Lewis]

(Crossposted to misc.int-property; followups set).

IANAL, but some things simply aren't patentable or subject to
copyright.

Patent, trademark and copyright are different in important ways. It's
generally a good idea to talk about only one at a time.

Who has the patent on white flour? Salt? Butter? Put them
together in the right proportions, throw in a little yeast and some
"secret ingredient", then maybe you come up with a recipe for bread
which *is* patentable.

You have to be careful making this point. Even though it makes perfect
sense, people can wildly misinterpret it. Yes, non-patentable parts can
be combined to make a patentable whole. However, the way these parts
are combined needs to be novel and nonobvious.

For example, say you baked bread and glazed a poem onto the top. The
main bread ingredients, the glaze, and the way the glaze goes on to the
bread are not novel. The poem is not statutory (i.e. not material that
is subject to patent; you copyright poems). Is the bread as a whole
patentable? What does the law say?

Depends what you mean by "law". If you take it as what is written, the
bread is not patentable. The Supreme Court in Diamond v. Diehr wrote
that you couldn't make non-patentable subject matter (in this case a
poem) patentable just by adding non-novel elements to it.

However, if you take "law" as what might happen to you in court, the
bread is patentable. The USPTO and some lower court have taken
"statutory and novel as a whole" to mean "statutory as a whole and novel
in any part". That's why we have software patents.

 

[Tony Morris]

Sure could. It could even if you don't use it. Many employers will insist
on rights to *any* work you do that is even vaguely related to the scope of
your employment, even if they did not specifically request it.


I can't see why the language would matter.


That might help, or it might not.


If you're not willing to ask, you must be assuming that you won't like the
answer.


Explain the situation to your prospective employer and ask for a written
agreement that you find mutually acceptable. If you can't reach an
agreement, either stop programming as a hobby or work elsewhere.

Most companies have procedures in place to declare any of your previous work
as your own.
IBM certainly does, since I have used it.
Contamination is a very big, messy issue - I won't even begin to start
describing it.
Suffice to say that you won't be legitimately using your own work within a
company without some formal process in place.