Can I start a technology company in the same business as my current employer?

Friday, October 19, 2007

Fred Greguras, Fenwick & West, http://www.fenwick.com/

Working completely outside of an employer’s premises and not using an employer’s trade secrets or other resources may not be enough to avoid a taint on your technology and intellectual property (“IP”) for the new business. Investors will examine the creation of IP very carefully in such a situation as they don’t want to buy into a law suit. While California law favors employee mobility it also protects employers in Labor Code Section 2870 which is part of most employee invention assignment and confidentiality agreements you sign before you begin employment with a company.

Basically, 2870 states that an employee owns an invention that he/she developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or result from any work performed by the employee for the employer.

The taint to the new business can come from the founder who is trying to continue work with his/her current employer while trying to create technology and IP for a new business or from a consultant who is “moonlighting” from a business in the same space. Some business sectors such as EDA software are notorious for litigation against departed employees who try to start a new business in the same space.

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