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[Discuss] more on software patent



> The current patent system has a measurable negative impact on my
> business as a contract developer of software solutions. More often I'm
> seeing clients seeking to put patent indemnification clauses into their
> contracts. If such a clause is present, there is no action my business
> can take to avoid liability. With a copyright violation, you are fully
> aware that you are copying someone else's work, and this can be easily
> avoided (and management can use tools to insure employees aren't
> infringing). But with patents it is an impossible task. Even if you took
> the impractical step of performing patent research on every line of code
> you produce, that code is generally kept proprietary, and not patented,
> and thus could be in violation of a patent published in the future, and
> you'd have no prior art as defense.
>
> The only recourse is to modify the contract, when possible, to make
> liability conditional on *knowingly* violating a third party's IP, or
> buying insurance.

There is no way to insure yourself. If you wrote something for google and
oracle sues because of what you wrote, you'd reach the insurance limit
pretty quickly.

I have had to walk away from jobs because of this. The problem with
software contracts is that the people who do the "hiring" always say the
same thing.... "Its just a standard contract." I always counter that there
is no such thing. If there is a clause in the contract, it is there for a
reason, and that reason isn't designed to be in your best interest.

You have to negotiate the contract and don't just sign as presented. I
have had pretty good success getting clauses attached to contracts.
Remember, most of the time you are not dealing directly with their
lawyers, so if you read up, its possible you'll be more knowledgeable than
the person you are dealing with.  Two things are a must: I have a standard
page of my "intellectual property" in which I define technology that I
have prior to the contract which can not be claimed by the company. (We
have all seen the over-reaching "what's yours is mine" contracts.) And
second, I make sure that I have a clause that disclaims any indemnity, but
states that I will not knowingly infringe.

If I can't get those two things, I walk away. It isn't worth the risks. My
feeling is that if they won't be reasonable, I can't depend on them being
reasonable.





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