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Automating Invention is Robert Plotkin's blog on the impact of computer-automated inventing on the future of invention and patent law.
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August 10, 2005
IPcentral ponders the difficult question of who should own the technical know-how that is inside the heads of workers at high-tech companies. The posting was motivated by a recent court ruling that temporarily bars a former Microsoft employee from performing search-related work for his new employer, Google, because doing so would violate his non-compete agreement with Microsoft.
Trade secret law and non-compete agreements have long been used to control the movement of know-how and other information stored in the heads of human scientists, engineers, and programmers. But what happens when we "bottle" such know-how, or its equivalent, in the form of software that can design machines and write software? You might think that a company that develops an improved genetic algorithm that assists it in designing new machines should maintain that algorithm as a closely-guarded trade secret. After all, isn't the algorithm the functional equivalent of an engineer's know-how within the framework of the company's business model?
But I don't think the answer is entirely obvious. Perhaps the company should seek a patent on the algorithm, thereby obtaining a period of time in which it can block competitors from using the same algorithm even if they develop it themselves independently. Or maybe they should use some combination of intellectual property protection and licensing mechanisms to secure the maximum value to the company.
The point is that transferring know-how from a human mind to software raises some tricky legal and business considerations that will need to be addressed as the automation of invention continues.
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