This is the March 2022 edition of our monthly series of Ethics case studies titled What Do You Think? This series is comprised of case studies from NSPE archives, involving both real and hypothetical matters submitted by engineers, public officials and members of the public.

Your peers and the NSPE Board of Ethical Review have reviewed the facts of the case as shown below. And, here are the results.

Your opinion has been registered for the March 2022 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is ethical
Want to know how your peers voted? We’ll send you an email with the poll results on March 22.

Your opinion has been registered for the Match 2022 edition of our monthly series of Ethics case studies titled What Do You Think?

Your vote is recorded as:

It is not ethical
Want to know how your peers voted? We’ll send you an email with the poll results on March 22.

A Review of the Facts

Engineer Wally, a registered professional engineer, has worked on the design and development of improved wastewater treatment processes and equipment, which were subsequently patented. Engineer Theodore, an environmental consultant specializing in the design of wastewater treatment facilities, and his client, are impressed with the new processes and equipment. However, Theodore dislikes specifying the sole source and, in fact, makes a point of encouraging competition by preparing open specifications with “or equal” clauses or by specifying a performance requirement. The primary, if not the sole, purpose of Theodore’s effort is to minimize cost by promoting competition. On this project, Theodore prepares a performance specification for open competition but patterned from the performance of the processes and equipment patented by Wally.

Was it ethical for Theodore to use Wally’s patented processes and equipment as a guide in preparing open specifications in order to minimize cost and to promote competition?

Here is the result of our survey of your peers:

71% ethical; 29% not ethical

Applicable NSPE Code References:

Code II.4

Engineers shall act in professional matters for each employer or client as faithful agents or trustees.

Code III.5.a

Engineers shall not accept financial or other considerations, including free engineering designs, from material or equipment suppliers for specifying their product.

Code III.7.c

Engineers in sales or industrial employ are entitled to make engineering comparisons of represented products with products of other suppliers.

Code III.9

Engineers shall give credit for engineering work to those to whom credit is due, and will recognize the proprietary interests of others.

Code III.11

Engineers shall cooperate in extending the effectiveness of the profession by interchanging information and experience with other engineers and students, and will endeavor to provide opportunity for the professional development and advancement of engineers under their supervision. (This language no longer exists in the current NSPE Code of Ethics)


There is concern expressed within engineering circles that the number of U.S. patents being filed by U.S. manufacturers has been declining. As noted by the president of a leading patent, trademark and copyright association, “fewer than half of U.S. patents issued will be going to U.S. inventors, and the American economy will be the big loser.” One alleged reason for the decline is the increase in “copycat” versions of products and processes being manufactured. One engineer noted that while a “better mousetrap” is terrific, the more competitively priced “copycat” versions discourage or eliminate those firms that made the investment in creating a “better mousetrap” by preventing them from recouping their original costs.

It would seem that the fundamental issue involved in this case is whether and to what extent one engineer has an ethical responsibility not to encourage others to develop alternatives based upon the technical ideas and developments of another engineer.

The Board of Ethical Review has never squarely addressed the question raised by the facts in this case. However, as early as BER Case 64-7, the Board noted that individual accomplishments and the assumption of responsibility by individual engineers should be recognized by other engineers. “This principle,” said the Board, “is not only fair and in the best interests of the profession, but it also recognizes that the professional engineer must assume personal responsibility for decisions and actions.” While BER Case 64-7 reflected the basic view that each individual engineer has an ethical obligation to recognize and give credit to the creative products of other engineers, the case did not address the question of one engineer’s ethical responsibility not to persuade manufacturers to produce optional devices using the concepts of another engineer.

Over the years, the two cases that have probably come closest to addressing these issues, however remotely, are BER Cases 77-5 and 83-3. In BER Case 77-5, an engineering firm submitted a project study originally prepared for a federal client to a state agency to assist the agency in obtaining funding for a project. After obtaining the funding, the agency distributed the study to another engineering firm that used the contents of the study as part of its negotiations with the state agency. In concluding that it was ethical for the second firm to enter into negotiations for the project under the circumstances, the Board could not find any specific provisions of the Code which dealt either directly or indirectly with the obligations of an engineer on behalf of or as an agent of the owner to avoid taking advantage of another engineer who had in good faith provided substantial and valuable information for a proposed project on the understanding that the engineer providing the assistance would receive the commission for it. The Board, deploring the lack of specificity in the Code, suggested that consideration be given to an appropriate revision or addition to the Code to cover such a situation. Said the Board, “our reluctant conclusion may meanwhile serve the purpose of alerting engineers in private practice who are tempted to expend substantial time, effort, and funds to secure a commission to the danger they run when that investment exceeds a nominal investment.”

Following the rendering of BER Case 77-5, the National Society of Professional Engineers Board of Directors took steps to modify the provisions of then Code 11 of the Code of Ethics. However, instead of strengthening Code 11 as recommended by the Board of Ethical Review, the Board of Directors deleted several provisions of that section in order to comply with the federal antitrust laws. An abridged version of Code 11 ultimately became the current Code III.7 contained in the Code of Ethics.

Later, in BER Case 83-3, which involved facts similar to BER Case 77-5, the Board concluded that it was unethical for one engineer to use the data of another engineer to develop a proposal submitted to a public authority without consent.

It is clear under the facts of the present case that Wally has devoted a great deal of time, effort, and creativity to the development of the improved wastewater treatment processes and equipment. The fact that Wally’s achievements have been granted patents is a clear demonstration of the quality and distinction to which his work has been recognized. It may seem to some that, in fairness, Wally would be entitled to exclusive control over the fruits of his creative work and that competitors would be excluded from using the concepts and theories behind his creations to develop alternative processes and equipment that might achieve the same or similar result. However, we believe that such a notion would be inconsistent with basic principles of law as well as the philosophy expressed in the Code of Ethics Code III.11, which obligates engineers to cooperate in extending the effectiveness of the profession by interchanging information and experience with other engineers…” (Note that Code III.11 was removed from the Code subsequent to the Board’s ruling on this case.)

It should be noted that a fundamentally accepted principle is that an “idea,” “thought,” “notion,” or similar abstraction cannot receive legal or other proprietary protection under the law. Rather, it is the expression of that idea, thought, or notion that can receive appropriate legal protection. This view is grounded in the philosophy that in order to best promote scientific and technological advances within our society, individuals and groups of individuals should be free to use ideas and concepts to develop different expressions of those ideas without legal hindrance. It is consistent with the principles of total quality management, including the goal of constant improvement in the design process.

We believe that this basic philosophy is applicable in this case. Theodore did not seek to infringe upon the patent of Wally. Instead, it appears that under the facts, Theodore merely used the processes and equipment developed by Wally as a “standard” by which different processes and equipment would be evaluated or, as an alternative, established a performance specification based on the performance of Wally’s processes and equipment which would be used to evaluate the performance of different processes and equipment.

As to the question of the primary or sole purpose of Theodore’s efforts (minimizing cost to the client by promoting competition among suppliers), we believe such an objective is entirely consistent with the engineer’s general obligation to the client to act as faithful agents or trustees (Code II.4).

The Ethical Review Board’s Conclusion

It is not ethical

It was ethical for Theodore to use Wally’s patented processes and equipment as a guide in preparing performance or open specifications.


William A. Cox, Jr., P.E.; William W. Middleton, P.E.; William E. Norris, P.E.; William F. Rauch, Jr., P.E.; Jimmy H. Smith, P.E.; Otto A. Tennant, P.E.; Robert L. Nichols, P.E., Chairman

Note – In regard to the question of application of the Code to corporations vis-a-vis real persons, business form or type should not negate nor influence conformance of individuals to the Code. The Code deals with professional services, which services must be performed by real persons. Real persons in turn establish and implement policies within business structures. The Code is clearly written to apply to the Engineer and it is incumbent on a member of NSPE to endeavor to live up to its provisions. This applies to all pertinent sections of the Code. This opinion is based on data submitted to the Board of Ethical Review and does not necessarily represent all of the pertinent facts when applied to a specific case. This opinion is for educational purposes only and should not be construed as expressing any opinion on the ethics of specific individuals. This opinion may be reprinted without further permission, provided that this statement is included before or after the text of the case.