Re: [Skunkworks] an Intellectual Property question
Hi, Here are my thoughts*: Intellectual property has many forms: copyright, patents, trademarks etc. and whether one ‘has a claim’ will depend on the nature of the property. Copyright applies to the actual representation used by an author but does not touch on the underlying semantics. Therefore, an author claims copyright for what they author but not the ideas. They cannot own the ideas. Software developers have automatic copyright for work they author except when their terms of employment explicitly deprive them of this right. Patents apply to a claim that the realisation of an idea is original and restrict anyone else from commercialising that realisation. Again, the person does not own the idea (only to the extent that they are the only ones who can realise it). For example, Safaricom might claim the process by which M-PESA works is original and thereby disclose it in return for the monopoly to effect it but they cannot claim the idea of money transfer via mobiles (because someone could always come up with an original way to do it that they did not anticipate). Trademarks apply to a symbol and claim it for exclusive use of trade. A claim against a trademark is irrespective of whether it is registered but it’s better to register to be on the safe side. In the cited scenario, the developer owns the realisation of the database using the scripts that he wrote but certainly not the structure of the database. For that, he would have to show that what he devised is a previously unthought of design for which he has been granted a patent. I doubt he has this. Therefore, if you reverse engineer the database you have not violated his rights because his rights were only restricted to the script he wrote. In fact, it could be argued that his realisation may be the most reasonable way in which that database could be designed, which would make it unpatentable (on grounds of being obvious). The only restriction would be if you signed a contract accepting that you would not reverse engineer the code. But if he would have issued such a clause then surely you would have put in place sufficient protection to prevent the current scenario. Best wishes, Paul Korir, PhD +353 86 224 1966 +254 72 400 4767 Ordnung muß sein *These do not constitute legal advice. I am not responsible for the decision you take from this information. I am open to correction.
On 1 May 2015, at 18:33, skunkworks-request@lists.my.co.ke wrote:
Re: an Intellectual Property question
Thank you Paul. This certainly has helped some of us. ______________________ Mwendwa Kivuva, Nairobi, Kenya "There are some men who lift the age they inhabit, till all men walk on higher ground in that lifetime." - Maxwell Anderson On 1 May 2015 at 21:53, Paul Korir via skunkworks <skunkworks@lists.my.co.ke
wrote:
Hi,
Here are my thoughts*:
Intellectual property has many forms: copyright, patents, trademarks etc. and whether one 'has a claim' will depend on the nature of the property.
Copyright applies to the actual representation used by an author but does not touch on the underlying semantics. Therefore, an author claims copyright for what they author but not the ideas. They cannot own the ideas. Software developers have automatic copyright for work they author except when their terms of employment explicitly deprive them of this right.
Patents apply to a claim that the realisation of an idea is original and restrict anyone else from commercialising that realisation. Again, the person does not own the idea (only to the extent that they are the only ones who can realise it). For example, Safaricom might claim the process by which M-PESA works is original and thereby disclose it in return for the monopoly to effect it but they cannot claim the idea of money transfer via mobiles (because someone could always come up with an original way to do it that they did not anticipate).
Trademarks apply to a symbol and claim it for exclusive use of trade. A claim against a trademark is irrespective of whether it is registered but it's better to register to be on the safe side.
In the cited scenario, the developer owns the realisation of the database using the scripts that he wrote but certainly not the structure of the database. For that, he would have to show that what he devised is a previously unthought of design for which he has been granted a patent. I doubt he has this. Therefore, if you reverse engineer the database you have not violated his rights because his rights were only restricted to the script he wrote. In fact, it could be argued that his realisation may be the most reasonable way in which that database could be designed, which would make it unpatentable (on grounds of being obvious).
The only restriction would be if you signed a contract accepting that you would not reverse engineer the code. But if he would have issued such a clause then surely you would have put in place sufficient protection to prevent the current scenario.
Best wishes,
Paul Korir, PhD +353 86 224 1966 +254 72 400 4767 *Ordnung muß sein*
*These do not constitute legal advice. I am not responsible for the decision you take from this information. I am open to correction.
On 1 May 2015, at 18:33, skunkworks-request@lists.my.co.ke wrote:
Re: an Intellectual Property question
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participants (2)
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Mwendwa Kivuva -
Paul Korir