As someone who has been spending time in Silicon Valley and the Bay Area, I hear about this problem a lot. Like I suggest to the people out there, seek advice from an attorney who will be much more thorough and knowledgable than the responses you’ll find here. Want to effortlessly find one right now? Take a look at the startup I founded –.
Back to your question – it depends. As Konstantinos alluded to, California protects people like you. You know – the type of people working for the man, yet simultaneously preparing and aspiring to be the man. Because you are in California, your employment agreement must comply with Labor Code 2870.
To sum up § 2870, an invention developed entirely on an employee’s own free time without using the employer’s equipment, supplies, facilities, or trade secret information may NOT be claimed as property of the company unless they relate to the employer’s business. To illustrate, let’s say an employee spends eight months on a new code after work each day. She completes the work entirely at home, and when she wants a paper copy of his finished code he decides to print it at work. Uh oh. Because she used his employer’s equipment (computer and/or printer) and supplies (paper) then her employer could potentially claim a right to the code. Pretty crazy but unfortunately true.
Now, changing the facts a bit, suppose the new code created was for a video game and rather than negligently printing it at work, she prints it at home. She’s in the clear right? The answer is maybe. It really depends on what role she serves for her employer. Has she ever worked on video game code for her employer? Could the employer argue that there are snippets of her newly-created code that she learned or took from work? That’s what it will boil down to.
This brings me to my next point – you have to check out your employment contract. An assignment clause covering outside inventions must not be too broad as that could potentially nullify the agreement. Also, what type of employment relationship are you entering? If you are considered an independent contractor then you have an even greater argument that your stuff is indeed yours. However, an independent contractor will be treated the same as an employee if such contractor uses the employer’s resources – a principle called “shop rights.”
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