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'[EE] NDA question'
2007\06\15@100519 by Jinx

face picon face
I signed an NDA and did some work for a client. The client has
backed out of the project, and I feel I'd like to have a go at
marketing it myself. The client says I can't do that because I've
signed an NDA. Normally I'd go along with that except -

- the product is not novel and can be found in other markets, eg
quite easily with Google. Hardly a secret. Anyone else who had
not signed an NDA would therefore be quite at liberty to make
these

- I'd already independently invented and built one for myself 10
years ago (but never went ahead and commercialised it), so I'm
not ignorant of its existence. Neither are all the people who knew
about mine before this client came along

The NDA was the usual thing ; don't disclose to 3rd parties etc,
nothing special

What do you think ? Leg to stand on ?

2007\06\15@101928 by M. Adam Davis

face picon face
The NDA is a generally a separate contract from your consulting
contract, so you can't throw the NDA away just because the consulting
contract is broken.

Read through the NDA and answer the following questions:

What, specifically, does it prevent you from disclosing?

For how long does it prevent you from doing this?  (usually this is
based on a fixed time or a fixed time after the contract has ended, or
both, whichever is longer.)

Those are the two main aspects of the agreement.  Regardless of
anything else, if you break them then you are in breach of contract.

Note that NDAs usually cover things like:
Inventions
Novel ideas
Business process/plans/etc
Trade secrets
etc.

Yours is going to be fairly specific on what exactly it covers.

If the project truly contains no new inventions, novel ideas,
ideas/process/plans specific to his business, or trade secrets then it
is likely that you would not be in breach of contract if you went
ahead.  If you have good, dated, documentation that shows you did this
project before, then you may have a much more reasonable case for
moving forward.

That won't, however, prevent him from suing you.  Even if you are
certain to win, you'll likely lose a lot of time, money, and sanity if
he decides to do that.

Of course, consult a lawyer.  The piclist is not a substitute for
contract law advice.

-Adam

On 6/15/07, Jinx <spam_OUTjoecolquittTakeThisOuTspamclear.net.nz> wrote:
{Quote hidden}

> -

2007\06\15@102234 by John Pfaff

picon face
Jinx wrote:
> I signed an NDA and did some work for a client. The client has
> backed out of the project, and I feel I'd like to have a go at
> marketing it myself. The client says I can't do that because I've
> signed an NDA. Normally I'd go along with that except -
>
> - the product is not novel and can be found in other markets, eg
> quite easily with Google. Hardly a secret. Anyone else who had
> not signed an NDA would therefore be quite at liberty to make
> these
>
> - I'd already independently invented and built one for myself 10
> years ago (but never went ahead and commercialised it), so I'm
> not ignorant of its existence. Neither are all the people who knew
> about mine before this client came along
>
> The NDA was the usual thing ; don't disclose to 3rd parties etc,
> nothing special
>
> What do you think ? Leg to stand on ?
I would say as long as you don't use any proprietary knowledge gained
from your client, and go about this as finishing and marketing the
product you started ten years ago, you will be fine.

But IANAL.

2007\06\15@103141 by Peter P.

picon face
Jinx <joecolquitt <at> clear.net.nz> writes:
> I signed an NDA and did some work for a client. The client has
> backed out of the project, and I feel I'd like to have a go at

Imho, if work was done and money did not change hands and the NDA did not
specifically cover the case of non disclosure in case of business relationship
cessation, you own the work and you do with it what you like. But I am not a
lawyer. Anyway, I would NEVER sign a NDA that locks me out even if the work
stays unpaid, unless the (research) work is covered financially *and* paid for.

Peter P.


2007\06\15@103424 by Jinx

face picon face
> But IANAL.

Thanks. I appreciate that neither you nor Adam are lawyers. It's
something I'd look into more professionally of course. But being
Friday night I'll be wondering about it all weekend, and thought
the question may solicit some experiences

2007\06\15@104633 by Richard Seriani, Sr.

picon face
Sounds like the type of question you should be asking an attorney with
knowledge in the area of NDAs. There are few people posting here who are
qualified to dispense legal advise (though that hasn't ever stopped anyone
from giving their opinion). However, I do suggest you have all your "stuff"
together before you set up the appointment (signed and dated engineering
notebooks with your original design go a long way in these instances), list
of similarities and differences between original and customer's concept and
marketing strategy, etc. (see, I told you so!).

Richard



{Original Message removed}

2007\06\15@105033 by wouter van ooijen

face picon face
> What do you think ? Leg to stand on ?

I am no lawyer, and you should definitely seek advice from one. But
AFAIK (in my country) an NDA can not prevent that you use any knowledge
that you already had and/or can get elsewhere.

Wouter van Ooijen

-- -------------------------------------------
Van Ooijen Technische Informatica: http://www.voti.nl
consultancy, development, PICmicro products
docent Hogeschool van Utrecht: http://www.voti.nl/hvu



2007\06\15@105331 by speff

picon face
Quoting Jinx <.....joecolquittKILLspamspam@spam@clear.net.nz>:

> I signed an NDA and did some work for a client. The client has
> backed out of the project, and I feel I'd like to have a go at
> marketing it myself. The client says I can't do that because I've
> signed an NDA. Normally I'd go along with that except -
>
> - the product is not novel and can be found in other markets, eg
> quite easily with Google. Hardly a secret. Anyone else who had
> not signed an NDA would therefore be quite at liberty to make
> these
>
> - I'd already independently invented and built one for myself 10
> years ago (but never went ahead and commercialised it), so I'm
> not ignorant of its existence. Neither are all the people who knew
> about mine before this client came along
>
> The NDA was the usual thing ; don't disclose to 3rd parties etc,
> nothing special
>
> What do you think ? Leg to stand on

Depends on the exact wording of the NDA and if it includes
non-compete clauses. Usually if you have learned about it from elsewhere, the
technology is not covered, however they may have disclosed proprietary
marketing information to you which may or may not be covered by your
contract. It also depends on what exactly is the confidential information
(many contracts don't specify exactly *what* is covered, the presumption
being everything is confidential).

The fact the client believes that you cannot do this should be some
indication that you may be in for problems if you continue!

Best regards,
Spehro Pefhany




2007\06\15@111255 by Dr Skip

picon face
Find an IP lawyer now. Get their advice. You will need one as soon as
you start anyway, since you'll hear from theirs.

You should disclose previous related work and include it in the NDA
before signing, so what is already yours is locked down. It can be a
grey area and like a lottery when it gets to litigation. In their favor:
waiting till you saw theirs to finish yours, waiting 10 yrs, not
disclosing yours, the NDA is probably very complete. In your favor: it
may not use any of their parts (grey area probably), you've well
documented your past work with witnesses, your completing it doesn't use
anything you just saw from them. You will be the one having to prove it
all though.

There is more detail, but that's a first pass. That's why you won't find
development type companies signing NDAs with people offering ideas
coming in the door. It could lock them out of a market they might
already be developing for, or at the least, cost them to do what they
had been planning in order to prove they didn't steal the ideas...

-Skip

Jinx wrote:
{Quote hidden}

2007\06\15@111301 by alan smith

picon face
Wonder what made him back out of it.  If you think you could make alot of $$ with it, then maybe ask him *permission* to go ahead and give him a percentage of the profits (not sales..but pure profits after expending all development costs, etc).
 
 But as mentioned...if you don't use any of his information, marketing, specific design, etc and you document it that your design is different enough and your not selling it the same way, then are you violating the NDA?  Your not disclosing anything to anyone else, and in fact if YOU market it then again, its not being disclosed.
 
 I'll see what my lawyer friend says...he has some good insights in things.

Jinx <joecolquittspamKILLspamclear.net.nz> wrote:
 > But IANAL.

Thanks. I appreciate that neither you nor Adam are lawyers. It's
something I'd look into more professionally of course. But being
Friday night I'll be wondering about it all weekend, and thought
the question may solicit some experiences

2007\06\15@112247 by Matthew Mucker

flavicon
face
IANAL, but one of the tenets of contract law is that "consideration" must be
part of any contract.

If you didn't get paid, or receive any other benefit from entering into the
contract, you could argue that the contract is unenforceable due to the lack
of consideration.  (The wikipedia entry on Contracts goes into this in some
detail.)

Of course, read the contract first and see what is in there. There might be
an easier way out.

{Original Message removed}

2007\06\15@114854 by M. Adam Davis

face picon face
If that applied in this case, then NDAs in general would be unenforcable.

Many companies trade NDAs, so in that case theres consideration.

But some NDAs are one-way (might be in this case).  The only
consideration given is the ability to view/use the information
protected by the NDA, or the ability to bid on a contract.

So consideration is a fine line to walk when discussing NDAs.

-Adam

On 6/15/07, Matthew Mucker <.....matthewKILLspamspam.....mucker.net> wrote:
{Quote hidden}

> {Original Message removed}

2007\06\15@115850 by Carl Denk

flavicon
face
2 ITEMS:
1: Here in the USA, anyone can sue anyone, and many times it the one that has the deepest pockets that prevails, even by bluffing. :(
2: Wasn't it a NDA proposed by IBM, that Gary Kildall (Originator of CPM OS)wouldn't sign, but Bill Gates did, why we have MSDOS > Windows instead of something likely to be superior. :)

2007\06\15@121432 by Ling SM

picon face

>>I signed an NDA and did some work for a client. The client has
>>backed out of the project, and I feel I'd like to have a go at

It is very difficult to "repudiate" an agreement/contract.  The legal
fee taught me that the safest way is when the concrete action committed
by the other party has broken the agreement/contract first.

Search for "repudiate", some of the searches shall guide you in what to
look for.

Ling SM

2007\06\15@123531 by Peter P.

picon face
M. Adam Davis <stienman <at> gmail.com> writes:
> If that applied in this case, then NDAs in general would be unenforcable.
> Many companies trade NDAs, so in that case theres consideration.

I think that it depends a lot on what the NDA covers. If it covers something that
already exists (e.g. somebodys IP) then it is fairly clear, the NDA holds even
if money does not change hands. However if the NDA covers something that is to be
created (i.e. the object of the work or contract) then it cannot exist without
'consideration' changing hands. In any case signing an NDA on something that
somebody considers to be his IP but the signer has previous knowledge of (f.ex.
public domain, previous patent, competitive research, or own research), is just
plain careless stupidity (or desperation ?) on the part of the signer imho.

Again, I am not a lawyer.

Peter P.


2007\06\15@162043 by William Chops Westfield

face picon face

On Jun 15, 2007, at 7:22 AM, John Pfaff wrote:

>> What do you think ? Leg to stand on ?
> I would say as long as you don't use any proprietary knowledge gained
> from your client, and go about this as finishing and marketing the
> product you started ten years ago, you will be fine.
>
NDAs potentially cover marketing information and sales leads as well
as technical details.  Why didn't you commercialize the device 10
years ago when you first built one?

BillW

2007\06\15@171022 by Robert Rolf

picon face

William Chops Westfield wrote:

> On Jun 15, 2007, at 7:22 AM, John Pfaff wrote:
>
>>>What do you think ? Leg to stand on ?
>>
>>I would say as long as you don't use any proprietary knowledge gained
>>from your client, and go about this as finishing and marketing the
>>product you started ten years ago, you will be fine.
>>
>
> NDAs potentially cover marketing information and sales leads as well
> as technical details.  Why didn't you commercialize the device 10
> years ago when you first built one?

Lack of resources and experience?

It is one thing to have a good idea and a working prototype.
Quite another to bring it to market at a salable price, and NOT
make everyone but yourself rich in the process.

And then there is the liability issue. Even if it is NOT the cause
of a 'loss, people have a nasty habit of suing everyone in sight
when something goes wrong, so one MUST have liability insurance
unless you want to put everything you own at risk. And that
insurance it quite expensive.

Robert


2007\06\15@211825 by Peter van Hoof

face picon face
One of the problems you may also want to consider is the tarnish
it might leave on your consulting job , even if you would have the
right to do this.

Peter van Hoof

----- Original Message ----
From: Jinx <EraseMEjoecolquittspam_OUTspamTakeThisOuTclear.net.nz>
To: Microcontroller discussion list - Public. <piclistspamspam_OUTmit.edu>
Sent: Friday, June 15, 2007 10:33:55 AM
Subject: Re: [EE] NDA question


> But IANAL.

Thanks. I appreciate that neither you nor Adam are lawyers. It's
something I'd look into more professionally of course. But being
Friday night I'll be wondering about it all weekend, and thought
the question may solicit some experiences

2007\06\15@215029 by Jinx

face picon face
> One of the problems you may also want to consider is the
> tarnish it might leave on your consulting job , even if you
> would have the right to do this.

Mmmm, don't know if I'd see that as a significant problem.
I'd agree if I came by this product through stealth or dodgy
dealing but it's not that way at all

If someone chooses not to make a product, leaving me the
legitimate opportunity to fill the gap, is that really so bad ?
As I said, the product is hardly a secret, anyone else would
have no problem manufacturing it. There could be people
I'm unaware of planning to do that

But I do realise there could be legal ramifications if I go into
this without seeking proper advice

2007\06\16@005853 by Jinx

face picon face

> I would say as long as you don't use any proprietary knowledge
> gained from your client, and go about this as finishing and marketing
> the product you started ten years ago, you will be fine

The vast majority, virtually everything really TBH, of the contribution
to the project was from me. The client, fairly clueless, left me to just
get on with all the design and preparatory work. I gained no
knowledge from the client. That gives me no rights of course. Some
work had been paid for, a chunk has not as yet. Now that the client
has chosen not to go ahead, I'm almost reluctant to bill for that
development work in case it precludes me from taking it over (if and
when)

> Why didn't you commercialize the device 10 years ago when you
> first built one?
>
> Lack of resources and experience?

Pretty much. As Robert said, marketing is a big step and commitment
and the time just wasn't right. It is now, but of course there's that bit
of paper ....... Which I shall be having a very close look at. I know
of at least one other person that the client discussed the product with
in some detail and that person didn't sign an NDA

2007\06\16@064530 by Peter P.

picon face
Carl Denk <cdenk <at> alltel.net> writes:
> 1: Here in the USA, anyone can sue anyone, and many times it the one that has
the deepest pockets that prevails, even by bluffing. :(

Expanding on this (and not only in the USA):

Entities with larger funds and/or political power nearly always win in court.
Therefore the goal is to avoid going (or being taken) to court. The reasons for
being taken to court are two: 'They' can take one to court because they believe
they can gain something based on prevailing laws or 'they' can take one to court
based on something written in additional legiferation between the parties (i.e.
NDA or signed contract or other lien). So it follows that the weaker party
entering some kind of business relationship with a stronger party can benefit by
limiting the number and the extent of contracts with the stronger party as much
as possible. I know that this is impossible but given the current situation where
entering a longer litigation would bankrupt many a consultant, it looks like a
worthy goal to pursue. This would mean, deliver products and services and get
paid, and forget about grandiose contracts, 'partnerships' and patents. Or, more
exactly, the number of such contracts and other money-sinks in case of litigation
should be as small as possible, and if any, of standard type (and hopefully
legally enforceable by precedent, without 5-year lawsuits).

just an opinion,
Peter P.


2007\06\16@065827 by Peter P.

picon face
Ling SM <ipal11 <at> singnet.com.sg> writes:
> >>I signed an NDA and did some work for a client. The client has
> >>backed out of the project, and I feel I'd like to have a go at
> It is very difficult to "repudiate" an agreement/contract.  The legal

I think that in this context, and in the light of what I wrote before, it is best
if the NDA is a part of the contract, and not separate. Then, invalidation of the
contract should also release the NDA. This obviously works for NDAs whose object
is the object of the contract, and not for previous IP/art.

Then there is a question that arises: The NDA 'trap'. Assume firm A knows that
consultant B works on a project, from published information, and wishes to
stifle this, to preclude competition with its own project in the same domain.
Then, A interests B in consulting work, gets B to sign a NDA that covers some of
the subject, works with B for a while, then steps out of the contract for some
reason or other. Now B has signed a NDA that prevents him from using his own
work in the project separately and A has all the time in the world to develop
the project as it wishes. So signing a NDA in general is like buying a cat in a
bag. One has to sign first to get the info. And then it's too late.

Peter P.


2007\06\16@093443 by Ling SM

picon face
> Ling SM <ipal11 <at> singnet.com.sg> writes:
>
>>>>I signed an NDA and did some work for a client. The client has
>>>>backed out of the project, and I feel I'd like to have a go at
>>
>>It is very difficult to "repudiate" an agreement/contract.  The legal
>
>
> I think that in this context, and in the light of what I wrote before, it is best
> if the NDA is a part of the contract, and not separate. Then, invalidation of the
> contract should also release the NDA. This obviously works for NDAs whose object
> is the object of the contract, and not for previous IP/art.

Only OP shall know, if it is not linked then it shall be opened for
interpretation.  If it is not a clear-cut win, it can become a messy,
expensive and unproductive exercise.  Even the end result is positive,
the stress of the process may outweigh any benefits that may arise.

At this state, if they are not linked, OP may still try to link them by
writing (for record),rationalizing and acting as if they are linked on
the basis of standard industrial practices (no legal basis here though).
 And see how the responses go.  OP can also go on the offensive, one
possible avenue is by stating the terms and compensation for the
termination of the work, and at the same time still carrying on with the
work he wants without breaking the NDA.

But don't break the NDA until enough doubts are generated of its
independent.  And thereafter many reminders and recourses before
breaking it.

Disclosure: No legal training, but lost a few kg just going a process of
repudiating an agreement.

Cheerful Regards, Ling SM

2007\06\16@102404 by Peter P.

picon face
Ling SM <ipal11 <at> singnet.com.sg> writes:

> Disclosure: No legal training, but lost a few kg just going a process of
> repudiating an agreement.

I think that there should be a 'book move' for such cases. Surely there must be
tons of precedents. I'd say that this would be a reasonable agreement type:

- A boilerplate confidentiality assurance from the consultant to the client,
signed separately from any contract (sort of like the pro bono half hour one gets
from a lawyer usually - and part thereof - in the case of the lawyer this should
be implied but it is good to ask (i.e. do you have any relationship with 'X'
before getting down to the details)).
- A full contract with a customized NDA built into it or not.

So then the confidentiality agreement would be to reassure the client without
engaging the consultant too much (and being non-specific, and specified ENTIRELY
by the consultant and his lawyer), but the real coverage would be tied to the
contract terms.

Of course this is an ideal situation that does not exist afaik, and I am not a
lawyer. E.g. following the principle of minimal paperwork I outlined before, the
confidentiality assurance statement should not be handed out liberally, but only
on request, as a preliminary to a contract that may contain a NDA.

Peter P.


2007\06\16@111940 by Ling SM

picon face
>>>>I signed an NDA and did some work for a client. The client has
>>>>backed out of the project, and I feel I'd like to have a go at
>>
>>It is very difficult to "repudiate" an agreement/contract.  The legal

Jame,
1. you may also want to recheck the NDA document to see if it done
properly (signed, dated, name).

2. consider doing a deal that motivate the other party to voluntarily
strike off the NDA.  Here, you have to be carefully not to specifically
unlink the NDA from the contract.  On the contrary,...

Cheers, Ling SM

2007\06\16@195100 by Jinx

face picon face
Some very good points posted re NDAs, thanks

As for my situation, I'd not be devastated if it wasn't a goer, but
it seems a waste to let a perfectly good potential product gather
dust

2007\06\18@014308 by Peter P.

picon face
wouter van ooijen <wouter <at> voti.nl> writes:
> AFAIK (in my country) an NDA can not prevent that you use any knowledge
> that you already had and/or can get elsewhere.

Before or after you get sued and spend the equivalent of the cost of two cars in
court to prove it ? I don't know how things work in Holland, sorry.

Peter P.


2007\06\18@015912 by Jinx

face picon face
> > AFAIK (in my country) an NDA can not prevent that you use
> > any knowledge that you already had and/or can get elsewhere.
>
> Before or after you get sued and spend the equivalent of the cost
> of two cars in court to prove it ? I don't know how things work in
> Holland, sorry.

But Peter, as you said (IIRC), you have to sign an NDA to find
out what it's all about. Now, what if, as in my case, the product
was no big secret after all (ie not novel, perhaps not well-known
but not hard to find either) and you had prior knowledge and could
also even show some prior art ? Surely you can't or shouldn't be
penalised for what you already know ? It's actually the person who
got you to sign the NDA that is late to the party ? Admitedly they
had the foresight to have an NDA and an NDA does carry some
weight of course. I'd be pretty disappointed if someone I had sign
one tried to work around it, so I'm not advocating that

2007\06\18@021816 by Zik Saleeba

face picon face
It seems to me that the company is confused here. This sounds like a
question of intellectual property, not disclosure. If you signed a
contract with them which said that the IP was theirs then it is,
irrespective of NDAs. If the contract said the IP was yours they don't
have a leg to stand on. If no contract was signed or if IP was
unstated in the contract then it depends on your local laws. In my
state (Victoria, Australia) the IP would belong to me as a contractor
but in other places the situation is different.

If the IP laws end up in your favor then all the NDA is stopping you
from doing is disclosing specifics about the company to a third party.
IP is a whole other thing.

Cheers,
Zik

2007\06\18@032055 by wouter van ooijen

face picon face
> Before or after you get sued and spend the equivalent of the
> cost of two cars in court to prove it ? I don't know how
> things work in Holland, sorry.

If you don't know why do you comment?

Wouter van Ooijen

-- -------------------------------------------
Van Ooijen Technische Informatica: http://www.voti.nl
consultancy, development, PICmicro products
docent Hogeschool van Utrecht: http://www.voti.nl/hvu



2007\06\18@073903 by Peter P.

picon face
Jinx <joecolquitt <at> clear.net.nz> writes:
> But Peter, as you said (IIRC), you have to sign an NDA to find
> out what it's all about. Now, what if, as in my case, the product
> was no big secret after all (ie not novel, perhaps not well-known
> but not hard to find either) and you had prior knowledge and could
> also even show some prior art ? Surely you can't or shouldn't be
> penalised for what you already know ? It's actually the person who
> got you to sign the NDA that is late to the party ? Admitedly they

That's why I was advocating the use of a boilerplate (and carefully crafted,
by  you and your lawyer), 'confidentiality agreement' INSTEAD of signing a NDA,
which
is basically a blank check. Trying to outguess the legal system is not a good
idea (for the same reason outguessing slot machines is not productive). The
only certainty about the legal system is usually that it costs more to do
whatever you need to do than you thought it would. often more than one can
afford to pay even for common things, like causing labor and retribution laws
to be implemented.

I think that one should add a clause to any NDA one has to sign, about its not
covering any previous art you may be able to show knowledge of (both your own
and other's). This could cause the asker to want to see your 'cards' to go on,
so, again, it's a touchy territory and minimization of paperwork is likely the
best option.

Back to your case, I think that you need to do is to somehow convince
a lawyer that he needs to implement such a clause retroactively in case of need
(and see what precedents exist). I am not a lawyer and I do not know how it's
done but this would be about the safest step to be taken now imho (without
disturbing the waters).

hope this helps,
Peter P.


2007\06\18@081136 by Jinx

face picon face
> hope this helps,

Any discussion helps. Thanks

2007\06\18@081143 by Spehro Pefhany

picon face
At 06:38 AM 6/18/2007, you wrote:

>Back to your case, I think that you need to do is to somehow convince
>a lawyer that he needs to implement such a clause retroactively in
>case of need
>(and see what precedents exist). I am not a lawyer and I do not know how it's
>done but this would be about the safest step to be taken now imho (without
>disturbing the waters).

I have never seen such an agreement that didn't exclude information that
was known beforehand or legitimately learned afterward through third parties
or from public sources.

But there are still many potential pitfalls, and the fact that the erstwhile
client believes that the contract will effectively constrain him from
producing a product. It's also reasonable question.. why didn't he use the
info long before? What, exactly, changed after dealing with the client?
Perhaps making an arrangement now with the client is the best move--
to paraphrase
Winston Churchill, to jaw-jaw is always better than to litigate-litigate.

BTW, to save a lot of speculation, posting a link to the actual contract might
be a useful exercise. Perhaps with the names removed (desirable for privacy,
but also in some cases, merely disclosing the existence of a relationship is
specifically prohibited!).

>Best regards,

Spehro Pefhany --"it's the network..."            "The Journey is the reward"
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2007\06\18@083559 by Russell McMahon

face
flavicon
face
> BTW, to save a lot of speculation, posting a link to the actual
> contract might
> be a useful exercise. Perhaps with the names removed (desirable for
> privacy,
> but also in some cases, merely disclosing the existence of a
> relationship is
> specifically prohibited!).

Better still, posting a link to an example of a prior product would be
useful. Or several. Plus, telling us what the product is. I'm sure you
could trust everyone here to not rush out and beat you to the punch.
If this makes one feel a little uncertain and wanting to keep the
information from the list then one may have some idea of how the NDA
issuer also feels. There are zillions of products in the world that
are crying out to be made, or remade or invented anew in some better
way. Why is the one that the client brought to attention suddenly the
preferred one? Did the client in fact add something which has
sponsored this interest? Did they add even perhaps just perspective, a
clue to potential, a new enthusiasm for an old idea? Given the sudden
enthusiasm for THIS product over any of the other zillion products
that could be made, might they not have some justification for feeling
miffed that THIS is the one that has suddenly been chosen as randomly
good to work on?

Does the client want to not proceed because they have found another
developer who offered a better price or better terms etc? Might not
the whole idea of the NDA have been to have the ability to discuss the
idea with several developers to seek a price without having them
decide to do it themselves? - ie more like the "restraint of trade"
that someone suggested rather than an NDA per se. ie eg "I have an
idea for making doofers. I know that doofers exist and that the ideas
is not especially original but I see a market opening and I want to
find what it would cost to have one developed. What I don't want is to
find out that your pricing is not good BUT that you then decide to
compete against me after I have inspired you. So ..." ?

???


           Russell

2007\06\18@084213 by Gerhard Fiedler

picon face
Jinx wrote:

> But Peter, as you said (IIRC), you have to sign an NDA to find
> out what it's all about. Now, what if, as in my case, the product
> was no big secret after all (ie not novel, perhaps not well-known
> but not hard to find either) and you had prior knowledge and could
> also even show some prior art ? Surely you can't or shouldn't be
> penalised for what you already know ?

I think it all depends on what is stated in the NDA and your work contract.
Whether or not the NDA is called NDA doesn't seem to be as substantial;
it's more about what is actually written in there and in all other
contracts you have with this company -- and whether this affects what you
want to do, and if so, whether it is enforceable in your country, and even
if not, how easy (costly) the defense against a possible law suit is.

Since you haven't posted the contents of your contracts with that company
(which probably is not a good idea :), this whole discussion doesn't seem
to go much anywhere as the basis is missing. "NDA" by itself doesn't say
much.

Gerhard

2007\06\18@095339 by Jinx

face picon face
> Since you haven't posted the contents of your contracts with
> that company (which probably is not a good idea :), this whole
> discussion doesn't seem to go much anywhere as the basis is
> missing. "NDA" by itself doesn't say much

And I apologise for that, starting a discussion I may have to
postpone. Embarrassingly I can't find the NDA !! It *should*
be with the other paperwork, but Murphy got to it before I did

For the time being, hopefully it at least, to use a buzz phrase,
"raised the awareness" of NDAs. As soon as I lay my hands
on it I'll make it avaliable

2007\06\18@105130 by Tony Smith

picon face
> > Since you haven't posted the contents of your contracts with that
> > company (which probably is not a good idea :), this whole
> discussion
> > doesn't seem to go much anywhere as the basis is missing. "NDA" by
> > itself doesn't say much
>
> And I apologise for that, starting a discussion I may have to
> postpone. Embarrassingly I can't find the NDA !! It *should*
> be with the other paperwork, but Murphy got to it before I did
>
> For the time being, hopefully it at least, to use a buzz
> phrase, "raised the awareness" of NDAs. As soon as I lay my
> hands on it I'll make it avaliable


Ask the bloke who wanted you to sign it.  If he's lost his copy... well...

Tony

2007\06\18@152037 by Herbert Graf

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face
On Mon, 2007-06-18 at 17:58 +1200, Jinx wrote:
> > > AFAIK (in my country) an NDA can not prevent that you use
> > > any knowledge that you already had and/or can get elsewhere.
> >
> > Before or after you get sued and spend the equivalent of the cost
> > of two cars in court to prove it ? I don't know how things work in
> > Holland, sorry.
>
> But Peter, as you said (IIRC), you have to sign an NDA to find
> out what it's all about. Now, what if, as in my case, the product
> was no big secret after all (ie not novel, perhaps not well-known
> but not hard to find either) and you had prior knowledge and could
> also even show some prior art ? Surely you can't or shouldn't be
> penalised for what you already know ?

Welcome to the US civil law system, where whether or not you are
actually in the wrong, people with big enough pockets CAN penalize you
anyways, through your wallet...

2007\06\18@153521 by Peter P.

picon face
wouter van ooijen <wouter <at> voti.nl> writes:

> If you don't know why do you comment?

I thought I'll leave this unanswered, but I recently spent a certain amount of
time learning about 'precedents'. During that time I found the references of a
lawsuit brought by m$ against a Linux firm then called Lindows (and now called
Linspire). This was brought (and lost) in Holland, *after* m$ lost a lawsuit in
the US against Lindows. I.e. a Dutch court took a case (and later aquitted
Lindows) *after* their US counterparts set a clear precedent. Nowadays Linspire
has successfully sued m$ in Norway to force them to relent on forced licensing
per-CPU (even on CPUs that do not have *ndows installed). Morale: cheeky people
with deep pockets can and will go after smaller firms, including in Holland,
and while suing on impossible terms ('similarity' with a dictionary word).
After giving in, Lindows is now called Linspire, and they are ... partners
with m$.

Links:

 www.linspire.com/lindows_news_pressreleases_archives.php?id=89
 news.com.com/Microsoft,+Lindows+face+off+in+Dutch+court
   /2100-7344_3-5210272.html <-paste this after the line above
 www.desktoplinux.com/news/NS9357846289.html
 http://en.wikipedia.org/wiki/Lindows
 
I hope this clarifies why I wrote 'before or after being sued etc'.

I hope I did not offend anyone, it's just the truth as I know it,

Peter P.


2007\06\18@173152 by Peter P.

picon face
Peter P. <plpeter2006 <at> yahoo.com> writes:

> Nowadays Linspire
> has successfully sued m$ in Norway to force them to relent on forced licensing

That is wrong. They were sued by another Norwegian Linux firm with a similar
name. The rest is as I wrote.

Peter P.


2007\06\18@194539 by Jinx

face picon face
> Better still, posting a link to an example of a prior product would
> be useful. Or several. Plus, telling us what the product is. I'm sure
> you could trust everyone here to not rush out and beat you to the
> punch. If this makes one feel a little uncertain and wanting to keep
> the information from the list then one may have some idea of how
> the NDA issuer also feels

Well, duh

> There are zillions of products in the world that are crying out
> to be made, or remade or invented anew in some better way.
> Why is the one that the client brought to attention suddenly the
> preferred one ?

Because I've got it market-ready and the client isn't taking it to
market ? That's the whole point

> Did the client in fact add something which has sponsored this
> interest?

No

> Did they add even perhaps just perspective, a clue to potential,
> a new enthusiasm for an old idea?

No

> Given the sudden enthusiasm for THIS product over any of the
> other zillion products that could be made, might they not have
> some justification for feeling miffed that THIS is the one that has
> suddenly been chosen as randomly good to work on ?

I don't make the client's business decisions

> Does the client want to not proceed because they have found
> another developer who offered a better price or better terms etc?

No

> Might not the whole idea of the NDA have been to have the
> ability to discuss the idea with several developers to seek a
> price without having them decide to do it themselves? - ie more
> like the "restraint of trade" that someone suggested rather than
> an NDA per se

I sincerely believe there is nothing Machievellian going on. The
client just doesn't want to do it anymore

2007\06\19@050801 by Vasile Surducan

face picon face
So, Joe, are you more clever after reading those answers ?
:)

Vasile

On 6/19/07, Jinx <KILLspamjoecolquittKILLspamspamclear.net.nz> wrote:
{Quote hidden}

> -

2007\06\19@052754 by Jinx

face picon face

> So, Joe, are you more clever after reading those answers ?
> :)

Cleverer in that I just did another class at The School Of Hard
Knocks. Wiser maybe a little. Always, expect the unexpected


'[EE] NDA question'
2007\08\04@232642 by Jinx
face picon face
> I signed an NDA and did some work for a client. The client has
> backed out of the project, and I feel I'd like to have a go at
> marketing it myself. The client says I can't do that because I've
> signed an NDA

At last, a legal resolution

The NDA has been declared worthless, because I did not learn
anything new about the product from the client. If you remember

"- I'd already independently invented and built one for myself 10
years ago (but never went ahead and commercialised it), so I'm
not ignorant of its existence. Neither are all the people who knew
about mine before this client came along"

In fact the exchange of information was only from me to the client

If you follow this logically, and I think a couple of people mentioned
this, it is not acceptable for an NDA to be used (sneakily or other-
wise) for the purposes of restraint-of-trade

So when I get some free time and $$$ I'll marketing it myself

2007\08\05@151909 by Steve Baldwin

flavicon
face
On 5 Aug 2007 at 15:24, Jinx wrote:

> At last, a legal resolution

That's good to hear. Most NZ NDA's that I've been presented with are the
most waffly bits of rubbish out there.

> The NDA has been declared worthless, because I did not learn
> anything new about the product from the client.

Who made the ruling ?
Is your client bound by / agree / know about it ?

Steve.











If you remember
{Quote hidden}

> --

2007\08\05@181100 by Jinx

face picon face

> > The NDA has been declared worthless, because I did not learn
> > anything new about the product from the client.
>
> Who made the ruling ?

A mutually accepted patent lawyer

> Is your client bound by / agree / know about it ?

Client agreed (begrudgingly) and NDAs were destroyed

End of

Sorted

2007\08\06@015213 by Peter P.

picon face
Jinx <joecolquitt <at> clear.net.nz> writes:
> Client agreed (begrudgingly) and NDAs were destroyed

Way to go. I'm glad it worked out. May I ask if the involvement of the lawyer
ended up as an 'unplanned expense' or was it negligible (standard fees). Also
whether the client made any noises about going to court over it. You might
remember that I contributed to the thread at the time. There are good reasons
for that.

thanks in advance for any comments,
Peter P.



2007\08\06@025334 by Jinx

face picon face
> Way to go. I'm glad it worked out

I knew I had a case, but it took a guy who wears a suit to work to
make it official

> May I ask if the involvement of the lawyer ended up as an 'unplanned
> expense' or was it negligible (standard fees)

Was done pro bono in his capacity as an advisor to a community group
of inventors and innovators

> Also whether the client made any noises about going to court over it

It didn't go to court. The client was as equally adamant as I that they
were right and keenly wanted a resolution too, so there was no dispute
about getting it sorted out. And no "Yeah, but...." afterwards, thankfully.
If it hadn't gone my way I don't think I'd have been too bothered. And
although it did go against the client, there's nothing stopping them from
carrying on with the project, and there never was

This was an unusual situation in that I knew all about the so-called
invention before I signed the NDA, the client knowing absolutely
nothing, apart from the original concept and what I subsequently told
them. It's not often I sign NDAs, and in the future I think I will have
a "counter-NDA" to avoid a problem like this

I'd be interested to hear if anyone has tips for that sort of document

2007\08\06@040406 by Bob Axtell

face picon face
Jinx wrote:
{Quote hidden}

I have always been wary of NDAs. Some states (Georgia USA comes to mind)
deliberately prevent
them from being valid for more than 3 years. I always exempt everything
I have had a hand in that I
can reveal before the time of signing, except I can't reveal any of my
government work, so you can
see why they can be sticky. Just scratch out anything that might hurt
you, and then sign it. Most of the
time you will be OK.

--Bob

2007\08\06@065946 by Gerhard Fiedler

picon face
Bob Axtell wrote:

> Just scratch out anything that might hurt you, and then sign it. Most of
> the time you will be OK.

Yes. This is something that's often forgotten: you don't have to sign such
documents you are asked to sign "as-is"; it's perfectly legitimate (albeit
not as normal as it could be) to remove or add some stuff. After all, the
doc you're asked to sign is nothing more than a /suggestion/ for a
contract. You can make your own suggestion, based on theirs. As long as the
changes are reasonable, they often will just accept them without further
discussion, and even if they start one, if the changes are reasonable,
they'll have a hard time being reasonable about it and reject them at the
same time :)

Gerhard

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