Job Security or Take a Whac Out of Crime

March 17, 2011, 9:17 AM

Sometimes life imitates art; at least, if you consider the iconic Whac-a Mole game art. Like life, in the game, moles pop out of five holes and players whac them with a soft mallet to force them back into the hole. A recent sad tale involving the game points out a few practical lessons for protecting intellectual property from employees and independent contractors bent on whacking your company.

Marvin Walter Wimbley, Jr. an independent contractor for the company which had created Whac-a Mole, Bobs Space Racers, decided to rig the game to ensure permanent job security. Wimbley had worked for the company since 1980 as an independent contractor writing software programs to maintain the companys games, including Whac-a Mole. Recently, the company demanded that he become a full time employee for less pay. To provide himself leverage, he raised his fees and decided to implant a complex virus in the Whac-a Mole software that rendered the games worthless after a preprogrammed number of plays. Only he knew how to disable the virus. He implanted similar viruses into other, newly introduced games to make them fail. In a stroke of short term genius, Wimbley also planned to open his own company to service the infected machines.

In the end, Wimbley ensured only long term residency in a minimum security facility as he has been charged with crimes against intellectual property. The incident reminds the employer of the harm that employees and independent contractors can cause to a company that fails to protect its valuable intellectual property, and highlights the importance of requiring the escrow of all software source code created, and securing a well written intellectual property invention and rights assignment from any employees and independent contractors working for the company.

Stephen E. Noona is the head of Kaufman & Canoles Trial Section and Co-chair of its Intellectual Property Law and Franchising Practice Group. He has been counsel in over sixty (60) patent cases in the Eastern District, is Fellow in the American College of Trial Lawyers and has appeared before the judges in all four Divisions of the Eastern District on patent matters. --Stephen E. Noona