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I was part of a joint venture that is in windup mode. The software was mostly a compilation of open source software. No patents filed or anything like that. However, the lawyer is selling assets which include the code and IP. The IP is not defined. I would like to be protected from some vague infringement lawsuit should I ever do something similar. Should I be bidding on some sort of perpetual license to perceived IP of 'the company'? How would that even be worded?

I don't need the code to build something that functions for the same purpose. All non-competes and non-confidentiality agreements, employment agreements,etc have been explicitly canceled as part of dissolution. However, I'm not sure if that excuses me to do 'similar' work.

Thanks for any advice

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2 Answers

up vote 1 down vote

To understand your situation, you need to look at all the IP rights that exist.

Copyright

Copyright protects expressions and not ideas. This means that you can't copy someone else's code, but you can copy their ideas as long as you write the code from scratch yourself. If you wrote the original code, then you have to take some care to not write the same thing again from memory. Basically, you can do the same thing but write it a different way and then you won't be infringing anyone's copyright.

Patents

Patents do protect ideas, but you have said that there are no patents so looks like you are in the clear (although you could, of course, be infringing some unknown third party's patents but that is always the case).

Trademarks

A trademark is essentially the name of the product. As long as you choose a name that is not similar to the original name then you are probably ok.

Trade Secrets

A trade secret is something like the recipe for Coca Cola. Based on what you wrote, it is not clear if any trade secrets are involved.

Overall, I think it looks likely that you are in the clear to go ahead and do the same thing as long as you do it from scratch and don't rewrite the same code from memory. You don't need a license, and no one would ever grant you the type of license that you are looking for anyway.

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up vote 0 down vote

Whom ever buys the IP and code would own the copyright and have to agree to allow you to license the IP back. That could be part of the deal but I doubt that a lot of people would want to purchase something like that.

If you wanted to do something like that, you would need a non-exclusive license to the copyright and IP.

There is always a risk that the company that purchases the IP could come after you if you built a similar product. So, you would have to assess that likelihood and figure out if buying the IP is better than risking a potential action down the road.

If you really don't need the code and it's just a question of implementing the idea, then you need to figure out if the idea is even protectable. Once you determine that, then you can put a value on the copyrights and IP.

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Jarie, copyright doesn't protect ideas so he doesn't need a copyright license to do the same thing with his own code. – Kekito Oct 1 '11 at 15:26
@Jeff: Copyright covers the tangible work once put in a physical form. If he takes the code outright, then he needs permission. You are correct that if he uses his own code, he should be fine. – Jarie Bolander Oct 3 '11 at 1:28

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