How to Protect Intellectual Property in the Interviewing Process

During the recruiting process and job interviews, open dialogues and an exchange of ideas take place between the job applicant and the company.  However, when intellectual property is involved, both employers and applicants must walk a fine line between building trust versus over-disclosure. Here are some guidelines every prospective employee and employer should know about intellectual property and the interviewing process.

Types of Intellectual Property

Intellectual property (IP) represents a company or individual’s creations, including but not limited to: inventions, literary or artistic works, images, designs, and names.  Through trademarks, patents, and copyright, the law offers protection of IP.

The first requirement before entering an open exchange with a prospective employer or employee is to define what type if IP you own. Understand that ideas themselves are not eligible for protection. Copyrights protect expressions such as literary and artistic works, while patents protect inventions, definable by prototypes or technical drawings.

Copyright Protection

Intellectual property theft through interviewing happens in a variety of ways, and not all of them are malicious.

Imagine a top computer science program graduate with a knack for developing unique solutions.  Many managerial and technical interviews are now performance-oriented, where candidates are asked to demonstrate problem-solving capabilities and on-the-job skills.

A company might ask this aspiring software engineer to write a sample of code to re-design a certain process or handle an application. This kind of free-sample demand is often incredibly time-consuming and costly. How can this applicant protect his/her work (or parts of their work) from being used if they don’t get the job?

One option is to protect work with a copyright. A submission of code would qualify for copyright protection. In most countries, the Berne Convention ensures that copyright protection is obtained automatically. However, most countries still offer a formal system for the voluntary registration of works which helps solve disputes over ownership or creation.

Keep in mind that “procedures and methods of operation” are not eligible for copyright. In our previous example, let’s say the company asked job applicants not to write code, but to instead outline a procedure or overview. This outline would presumably suggest how the engineer might write the code but would not contain the actual code itself.

Although still time-consuming, such an outline would not be protected by copyright. Similarly, answers provided during extremely intensive (and time-consuming) behavioral event interviews would not meet the qualifications for copyright protection. Such interviews elicit a huge volume of insights from applicants about important situations they experienced in a specific job.

If an applicant feels unsure of a company’s motivations, in lieu of copyright protection, to protect IP another alternative is to just say no to the request. Every applicant must decide if the potential reward of earning a new job is worth the potential risk of submitting ideas to a 3^rd party that cannot be protected.

Red Flags for Employees in Competitor Interviews

For employees contacted by competitors with invitations to interview, there are other IP pitfalls to consider.

Some unscrupulous companies have been known to set up phony interviews for intelligence-gathering purposes.  It’s important that applicants adhere the terms of their current employment agreement and protect any personal IP that they may have in this process.

Applicants unrestricted by any employment agreement terms should let prospective employers know prior to any interviews of the terms. Such an agreement and disclosure would not adversely impact one’s candidacy in a legitimate job search. Pushback from a prospective employer on this issue should be a concern.

Other warning signs of possible phishing expeditions include;

• A lack of written job description or demonstration of a clear need for the new position
• Questions about your current company’s clients, products, or plans for the future

How Companies Can Protect IP

Employers should take additional measures if they feel it necessary to disclose any sort of proprietary information to in-demand talent during the interviewing process to recruit them.

Among the various protections used to safeguard company IP during the interviewing and initial employment stage are:

• Confidentiality or Non-Disclosure Agreement (NDA): A Non-Disclosure Agreement is a legal agreement that signifies a confidential relationship between two parties.  In signing this agreement, the prospective employee promises that they will not disclose sensitive information about the company’s operations or IP to any outside party.  If the NDA is breached, the other party could seek court action and sue for monetary damages.
• Ownership of Intellectual Property Agreement: When signing this agreement, a new employee agrees that ideas developed during their employment belong exclusively to the company.  Trying to claim otherwise could result in a battle over IP rights, which the employee is not likely to win.
• Non-Compete Agreement: When an employee signs a non-compete agreement, they are promising not to work for a competitor in a similar position for a particular period of time.  The clause can also specify that the employee may not start their own similar business in which trade secrets could potentially be used.
• Non-Solicitation Agreement: A non-solicitation is agreement is a contract with an employee that forbids them from soliciting the company’s clients or customers for their own or a competitor’s benefit after they leave the company.

Keep in mind that the enforceability of all documents listed above varies by state and in special circumstances.

Intellectual property has many vulnerabilities during the interview and recruiting process for both the employer and the applicant. Intellectual property has massive value and all parties must understand their rights and methods of protection for protecting IP.