Nasir and Matt discuss the story of a woman's claim of sexual harassment at the software company Github. They then answer the question, "Is it a good idea to get a patent before I start my company or wait down the road?"
NASIR: Welcome to Legally Sound Smart Business.
This is Nasir Pasha.
MATT: And this is Matt Staub.
NASIR: Matthew Staub, and this is our business legal podcast where we cover business in the news with our legal twist and also answer some of your business legal questions that you can send, the listener, to email@example.com.
MATT: Exactly. Use my full name.
NASIR: Matthew Staub. Now, everyone’s going to look you up on the phonebooks.
MATT: Yeah, it was a big mystery before. Everyone didn’t know what my full first name was but you let everyone in on the secret.
NASIR: I forgot you were using a pseudonym, you know, for that.
Well, what do we got? We’ve covering GitHub but my first question is, do you know what GitHub is? I’m just curious.
MATT: Uh, you know what, I don’t know what GitHub is.
NASIR: It’s a trick question because, I think, only geeky programmers even have heard of the company because it’s a pretty neat innovative tool. It’s basically a great way to basically create a repository and post your code online for others to add onto it. But I think the best feature is also being able to create some kind of version control over the code because, you know, when you have multiple people working on it, it allows you to kind of go forward and back and test it and so forth – not that I’m very intimately familiar with it but I think I’ve participated in one GitHub project and that’s pretty much it – just to kind of learn how it works. I think it’s fascinating and I’m sure there’s others out there but they’re pretty much the guys to go to when it comes to version control when it comes to your programming.
MATT: Okay. So, that’s why I haven’t heard of it.
NASIR: Yeah, exactly. It was a trick question.
MATT: I thought you were setting me up so it sounds like I’m ignorant of everything. Okay, I’m fine with not knowing what that is until right now.
NASIR: Yeah, I figured that.
MATT: But the underlying story that involves GitHub – or the GitHub scandal, I suppose – involves a sexual harassment issue – male coworker and a female coworker. Of course, as all these are the facts are in dispute so we don’t really know. You’re going to get a he-said, she-said, like you will in pretty much every situation.
But this woman, Julie Ann Horvath, is claiming she was harassed by leadership for two years – two years of harassment she put up with, one of which being the cofounder – pretty high up exec there – Tom Preston-Werner – he gave her verbal harassment. His wife got involved at some point, too. She said it’s not fully privy to all the facts.
And then, there is another issue, too. I don’t know if this is the same person.
NASIR: I think it’s a different person.
MATT: I think so, too. I just wasn’t sure. It was ambiguous.
Another male person basically, one of her coworkers, a male coworker approached her, wanting to date her, and she declined. And then, according to her, that led to him undermining her work and a whole slew of problems even though, if you hear from the other end, that’s not the story.
This basically gets to harassment in the workplace. We joke about it at times through The Office, but this is a pretty serious issue, especially if what she’s alleging is true.
NASIR: Yeah, absolutely. GitHub is in the tech startup industry. Even though they’ve been around for a while, I think they would still be considered a startup company.
I think what’s important to know is that, in Silicon Valley and the like and these companies, women are hugely underrepresented. You know, think about the stereotypical programmer and so forth – they tend to be men and those are the ones that are being hired right now. And so, even the women programmers out there and the women in the tech industry aren’t being hired in this industry. So, this kind of story coming out of this industry definitely doesn’t go well to some of the recent movements to get more women in the workplace in this industry.
But, more importantly here, what Matt mentioned, these kinds of allegations are a business killer. It’s not only going to put negative publicity if it comes out in the open – and, almost always, it does – whether it’s in a very local level or, in this case, a national level. No one – whether it’s the person that’s alleging the lawsuit on harassment nor the company – comes out very good on this.
But one thing you notice, like you said, there’s dispute of facts and we definitely can’t even begin to say what exactly is true but, just to kind of give an example here, this women is alleging some harassment of a male coworker and then another story is from some other third-party source, unnamed – which I don’t really like unnamed sources because it’s hard to trust – but she’s saying that this so-called male coworker was an ex-boyfriend and they were still in good terms and there was some other business dispute involved or whatever.
But the point is, this company culture, there’s something weird about having such intertwinement of relationships and so forth. I know, when you have a company like this, you’re going to have friends in the company. But, sometimes, when things go sour, what’s going to happen next? How is that going to be handled in the workplace and what are the legal implications of it?
MATT: Yeah, exactly. You talked for a minute right there and I ran through about ten different Office episodes in my head, one of which conveniently was – and I don’t want to make light of the situation, you know, a serious sexual harassment claim – the one where Michael gets in trouble and Toby is giving a sexual harassment presentation and Michael comes in and ruins it. I think that was the dawning of “That’s What She Said.” That was the first episode with that.
But, getting back to this story, what I found was a little bit interesting. Like I said, we can’t say either way what’s true and what’s not but this woman’s info is linked in the article and I went to her Twitter and her first thing in her description was “Breaks builds, hearts.” She says she breaks hearts right off the bat which is probably not what you want to be saying in this situation.
MATT: She does. Her picture is her being interviewed in a radio show and she does a lot of public speaking so I’m hoping this isn’t a situation where they’re just trying to get publicity. Like I said, I’m not saying that’s the case but you might want to dial it back a little bit if, these accusations, you want them to hold up.
The relationship in the office issue is another thing, too. I think what you need to do is follow The Office in this way and get it approved through the HR person, I suppose. You need to have something in place. I wouldn’t necessarily say you need to flat out ban it because I’ve seen couples that have worked together and I didn’t know for months that they were even dating. At the other end, you have those much worse situations.
NASIR: What you’re addressing is a very hard thing. I think companies have gone back and forth whether to allow office relationships or not and I think the trend that I’m seeing with most companies is that they allow it but disclose it, and understand why – because, in pretty much every state, when it comes to sexual harassment and so forth, one of the defenses – and I don’t want to make this come across poorly – basically, for it to be sexual harassment, they have to prove that it’s unwelcome. If it’s a mutual attraction and mutual conduct, then it’s very difficult to make it sexual harassment. When you disclose the relationship, that they’re in a relationship, then you’re pretty much acknowledging that, “Okay, we are attempting to date or do whatever. And so, I’m disclosing to you that this is by my consent and I’m welcoming this action.”
The problem is, of course, what happens when that point stops – when a girlfriend or boyfriend becomes an ex-girlfriend or ex-boyfriend, right? That can complicate things either way.
MATT: Yeah, and I think that’s what they’re probably most worried about. That’s what this story – at least one side – is claiming. It just makes everything much more difficult.
One of the things we always harp on on these shows is how important culture is with your employees and with your business. It’s just not going to make culture any better – at least it has a very slim chance of making it better, I suppose.
NASIR: No doubt.
MATT: Let’s jump into the question of the day.
“Is it a good idea to get a patent before I start my company or wait down the road?”
This comes from Silicon Valley in California. Maybe from the new show on HBO – I don’t know if you’ve seen that – called Silicon Valley. It’s pretty funny. It’s pretty extreme but it’s pretty funny.
NASIR: I haven’t caught it yet but I’ve heard good things. I’m going to start recording those episodes.
MATT: For people that don’t know me, the amount of time I spend talking about TV shows on this podcast is not anywhere close to the amount of time I actually watch TV.
NASIR: I think I’m the same way.
MATT: It makes it seem like all I do is watch TV which I really don’t. I just had to put that in there, in case people are wondering.
NASIR: I don’t watch TV. I just read a lot of pop culture, just to keep up with things. That’s how I have knowledge of The Office and so forth. I read the episode notes and what happened in the scripts, but I don’t watch it. That’s just me.
Anyway, is it a good idea to get a patent? We should have gotten Mark Wisniewski to call in – he’s our patent attorney – to answer this question. But I think we can attempt it. I know what Mark’s going to say. I mean, a patent is always going to say to do it as early as you can in general – with consideration of cost and so forth – because, once you have the patent and establish it, sometimes, that provides tremendous value to your business and allows you to raise money. It allows you to raise money. It allows you to do other things. It makes partnerships. It protects your idea and allows you to do business with others in a way that doesn’t risk losing your intellectual property, especially if you’ve already actually successfully gotten the patent. But I think there’s more practical considerations though when considering this.
MATT: Yes, there’s a bunch of considerations but, sometimes, you know, the intellectual property is your business. If that’s the case, you need to get that set up as soon as possible. On the flip side, the reason people might not get a patent right away is because getting one is extremely expensive – going through the process.
NASIR: Absolutely. I mean, any kind of technical patent from a legal cost this is going to arraign and, obviously, this is going to depend upon the attorney and the complications of your patent itself. But maybe a minimum $6,000 or $7,000 but, after that, it can get way up there in $15,000, $20,000, even more, depending on the complexity. What small business starting out has that kind of cash to invest in that? It might be a difficult decision to make but, unfortunately, that’s the only way to protect your idea and that’s part of the process of capitalizing your business and putting a budget together. You have to start thinking about paralegal costs that are going to come upfront pretty quickly.
MATT: Right, and it’s just more of when you can do it, I guess, is when I would say go for it. It really is a great idea. You want to get locked up as soon as possible, but definitely understand that it’s a financial strain and that is a lot of money for any startup to have right off the bat – to allocate towards getting that patent in place.
Okay, I think we answered that question pretty well.
MATT: I think so.
NASIR: Well, thank you for joining us. That was our show for today. I had a good Friday. Well, it was a good Friday episode but it’s not Good Friday. I guess that was kind of confusing.
MATT: We didn’t tell people, if they have their own questions, they can send it in to firstname.lastname@example.org. Also, we’ve been picking up a lot of iTunes rankings or ratings recently or reviews – rankings, ratings, reviews – one of those R’s. We would appreciate if you liked the podcast, go ahead and give us a nice review. If you don’t like the podcast, they probably aren’t listening anyway so I don’t need to tell them.
NASIR: Forget you.
MATT: Why would they be listening? But, yeah, that’d be great.
Yeah, that’s it – Friday episode.
As always, keep it sound and keep it smart.