I recently had the idea that if you develop a technology while working on a project specifically endorsed by your employer, you should be able to do whatever you want with the technology, if the company abandons the project. I posted this idea as a comment on danariely.com. DaveyNC wrote a reply to my comment, but I completely disagree. Here’s how I would respond:
Most technology that companies develop is not under patent. This is especially true of technology that never sees the light of day. Why patent a thing that’s protected by a non-disclosure agreement i.e. a thing that the rest of the world is never going to know about?
The other thing is that you can’t just walk away from the company and start using stuff that you created, even if it’s not patented, because just about every job where there’s a remote chance that you’ll come up with some innovation requires you to sign a “all your work are belong to us” contract when you start working for the company. These contracts cover “trade secrets”, which as far as I can tell, it just a catch-all term for stuff that’s not patented. Even Starbucks barristas have to sign these things (in case they find a faster, better, and/or cheaper way to brew coffee). If the company uses your idea, these contracts make sense; otherwise, they are completely stupid, and serve only to piss off employees.
Even if your work is patented, taking ownership of it is not exactly a walk in the park. My whole point is that people should be able to walk away with technology at any time, if the company sanctions the original project, but abandons it later. You are never going to win if you have to negotiate for the technology before you leave, because from the company’s point of view, they’d rather keep you, but if they can’t, they’re not going to give away technology as a parting gift, no matter how worthless they think it is (this is oddly inconsistent with the practice of giving away golden parachutes to executives, but I digress).
There’s also the matter of the non-compete agreement that you almost certainly signed. These things also have their rightful place in some situations, but they are mostly bunk (I believe not all states in the US recognize these types of contracts). Most likely, your technology is related to something that the company does. That means that if you go off and start your own company with it, they’ll probably claim that you’re now competing against them before the non-compete expires. Gee, how convenient!
I’ve already mentioned three types of agreements, each of which would probably prevent you from doing what I said, but another one just occurred to me: the non-solicit agreement. You’ll probably want the other people who developed the tech at the old firm to join your new venture. These contracts would prevent you from trying to convince these people to help you with that. This makes things very difficult for you, because these are the very people that you’ll need to be successful.
In short, your notion that you can easily do what I’m suggesting is the opposite of true. By design, everything is stacked against you i.e. in favor of the companies. As far as I can tell, the only way to make this work legally is to create some kind of protection for people who would otherwise have the entrepreneurship to do this kind of thing.