Developed a New Algorithm - Defamation?

[Peter6]

I developed a new algorithm and have exposed my solutions to a company for commercialisation verification. The solutions were well checked and meet all the requirements by industrial standard. No issues had been raised during the verification. Recently the company released similar functionalities in its product.


After I raise my concern on the similarities of the new functionalities in their product, the person who was responsible for the verification told others on the email list the solutions he received from me did not work although he kept asking for more solutions later on and no any issues had been raised during the verification.


He insisted on that my solutions did not work and he did not undertake "reverse engineering" from the solutions I provided because my solutions did not work properly.


I have the emails to prove that he was happy with the solutions and the verification lasted almost a year from simple demonstration projects to more complicated projects and finally by a real large project. I also have solutions sending to the company and they can be checked by third party.

Is the comment from the person on my solutions considered as defamation for my algorithm?

 

[DennisD]

Hi Peter6


Thanks for your question, and for your patience with our response.


Please read the following and let us know if it does not accurately describe what you've said:
You were in regular contact with this company over the course of a year in which time you discussed an algorithm that you had developed. The company took an interest in the algorithm which it ''verified'' or implemented, starting with simple demos, then a pilot phase and ultimately as you say a ''real large project''. At one point the company rep overseeing the ''verification'' sent a group email which included you and other persons. The email was critical of the algorithm and denied that it was relied upon or reverse engineered by the company, nor did it contribute to the company's end solution. In emails directly to you, the same company rep was positive about the algorithm and eager to learn as much as possible, asking you for further details throughout the year.


You had a query about defamation which you also highlighted in another post. To clarify, you are concerned about the damage caused to your reputation from the email comment? Or are you more concerned about being ripped off by the company using an algorithm which in your view is your intellectual property? The first question relates to defamation, whereas the second question relates to whether the company is using your intellectual property rights without compensating you.


Please let us know if you'd like us to clarify any of the above, and also please keep us posted on how it goes.

 

[Peter6]

The verification for commercialization happened one year ago. We lost contact after I sent them a draft documentation about my algorithm (not full exposure of the algorithms, but some of them) and the solutions for the real project (too mush information in the solutions, it is normally not exposed to this kind of company in public domain). I raised my concern to the company on that I exposed too much my algorithms to them and I was told "not worry, we are not in the business to steal other's ideas".

This year, the company released a new functionalities which have a lot of similarities to my solutions. I arose my concerns to the company, they argued that my solutions never work, it is impossible for them to "reverse engineering" my solutions. They also deny that we went though the verification from simple demo project to real project (I guess it is hard for them to explain why it continued the verification if my solutions did not work)

They argue that;
1) The solutions I provided cannot be checked for practicality.
2) The solutions I provided are not practical.

I asked following questions to them, they did not response.
a) Can they provide evidences to indicate my solutions are not practical?
b) What data are missing from my solutions to make them believe they cannot be verified for practicality (it contradicts to their statement on that the solutions are not practical, so it can be verified)

I have the emails to prove that they was happy with the solutions and the verification lasted almost a year from simple demonstration projects to more complicated projects and finally by a real large project. There is not logical reasoning for the company to continue the verification to that level for a real project when they know that the solutions I provided are not working (practical).

I have strong evidences to demonstrate that the solutions I provided to the company can be verified for practicality and they are practical. I have emails with these attached solutions I sent to the company. These solutions can also be checked by third party to approve if the company tell the truth on their statements.

I also think If the company developed the algorithms and the new stockpile configuration by its own effort, I can not see any reason for the company not to tell the truth about my solutions and the time we worked together to verify my solutions. I also asked them to provide me the source of information the company claimed getting them in public domain so that they did not use my confidential information I did not receive response from them.

I am worried both my reputation and my IP.

 

[Tracy B]

Hi Peter6,

Re: disclosing your algorithm in an email to a list of people

Just to clarify, did the person with whom you were in regular contact (Recipient) disclose your algorithm in an email to people who were not supposed to see the algorithm? When you sent your algorithm through to be verified, did you sign any kind of agreement with the company, and the Recipient? In particular, did you enter into a confidentiality agreement with the Recipient?

You may have a breach of confidence issue here.


Re: defamation

If the Recipient stated in an email something to the effect that your algorithm does not work, is useless, is bad etc. and you have evidence showing that these statements are unfounded or made without reasonable opinion and grounds, then you may have a defamation case. You will need to show: (i) these statements are false, (ii) they could not have been made with reasonable opinion or belief, (iii) the Recipient told someone about these statements, and (iv) as a result, your reputation is damaged or will likely be damaged. The Recipient will likely argue that it was either an honest belief or an opinion and not fact. Take a read of "Have you been defeated? What you need to know about defamation in Australia" to understand more about what you will need to prove and disprove for a claim in defamation.

Re: IP infringement

There are two IPs here. The actual algorithm itself (presentation of information). And the idea/solution which the algorithm seeks to solve (the information itself). Which are you alleging the Recipient/Company to have infringed?

The actual algorithm is protected by copyright. You, as the writer of the code, owns the copyright. This means that if the company has used bits of your algorithm (copy and paste), then they have infringed your copyright. Copyright only protects the organisation of information, not the content of the information itself.

In relation to the idea/solution behind the algorithm, do you have this patented? If not, you may not have an action to prevent a third party from copying or using your idea. You may have an action in breach of confidentiality (i.e. you disclosed the idea in confidential circumstances for a particular purpose, and the recipient of the information disclosed it to third parties or used it for an improper purpose). However, you will have a hard time arguing IP infringement over the information. IP tries not to monopolise ideas, unless the idea is patented.

Hope this clears things up for you.

 

[Tracy B]

Also, forgot to ask: what is your relationship with this company? Are you their employee? Contracted as a consultant? Or have you contacted them for their services? Your rights could differ depending on what your relationship is with the company.

 

[Peter6]

Thanks for the help.

I am not their employee. The verification is used to check if my algorithms are good enough for commercialization with the company.
I did not sign any agreement with them. and not sure if the solutions and the documentation were sent to others.

For deformation, the person who was responsible for the verification argued about that my solutions did not work, the company's
Legal counsel sent me a letter which copied the person's statement to me.

 

[Tracy B]

Hi Peter6,

Were you looking to partner with the company for some sort of profit-making venture?

For the future, always have the company (or any person to which you are disclosing confidential or sensitive information) to sign a non-disclosure agreement before you disclose any information. It may sound excessive but it could avoid situations such as this, or at least give you a cause of action to sue. Make sure you expressly state in the agreement an exhaustive list of purposes for which to use the disclosed information.

As for the defamation issue, disclosing information to the legal counsel does not constitute "publishing the information". You need to show that the Recipient disclosed the information to a third party. Same with breach of confidentiality.

 

[Peter6]

There is other person from that company in the list who can see the statement as well.

What kind of the exhaustive list of purposes should be included in the agreement?

 

[Tracy B]

1. That may be enough for defamation if this other person is not part of the legal team. It depends on their position in the company. Additionally, you will need to disprove the potential defences they may raise, as well as show that it will likely damage your reputation. It seems like a difficult case to make out so speak with a lawyer about this cause of action.

2. The exhaustive list should include all the purposes you allow the recipient to use the information disclosed. Example: to verify whether the algorithm is functional and meets the requirements. You can also include a list of non-exhaustive purposes the recipient is not permitted to apply the information towards. Example: the company's existing or future products. It is best to have a lawyer draft up an NDA that is tailored for each specific disclosure.

 

[Peter6]

Thanks Tracy.

The company said that their management team made the decision to not use my algorithms based on that my solutions are not practical during the verification. and they also use this an as an reason and said that it is impossible for them to reverse engineering my solutions. This is a false statement.

By common sense, if we agree to verify the solutions (although there is no agreement, we did agree to undertake the verification. I don’t think the company disagree with this), I should receive a response from the company about issues with my solutions.

By common sense, people will think it is not a proper behaviour, if they does not tell other party, if issues are found during verification.

Do I have the right to ask for an explanation on what is wrong with my solutions?

If they refuse to response, can it be forced by law? or can I complain it to any professional organisation?