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   Hold Harmless and Indemnify
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mike
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Hold Harmless and Indemnify
« on: May 30th, 2005, 9:34am »
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Hey All,  
 
I am looking at a proposed exclusive patent license agreement. The licensee want the licensor to indemnify and hold harmless the licensee in the event of a claim or suit of infringement.  
 
Both parties can agree that there would be no infringement without the product, but the licensee states that the licensor should be responsible for licensee's losses. I do not agree.  
 
What is usually the case ?
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mike
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Re: Hold Harmless and Indemnify
« Reply #1 on: May 31st, 2005, 7:29am »
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Good Morning,
 
Anybody with some thoughts on this topic?
 
It appears that indemnification can be very costly, and is an unknown or not predictable future cost. Looking at the possible royalty compared to the cost of possible hold harmless and indemnification It is not such a good idea.
 
The interested and potential licensee says that he would not leave me hanging and that he will back me up if something should arise. Wow, that make me want to sign the agreement. ....warm and fuzzy.  
 
It is possible that he knows that I will not sign, and just wants a way to negotiate the royalty down.
 
Does this guy seem slimmy or should I think he is just doing business move ??
 
Thanks,  mike
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JSonnabend
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Re: Hold Harmless and Indemnify
« Reply #2 on: May 31st, 2005, 7:39am »
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This is purely a negotiated term.  Either party can assume the risk of infringement, and both parties can undertake a right-to-use analysis.
 
- Jeff
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SonnabendLaw
Intellectual Property and Technology Law
Brooklyn, USA
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JSonnabend@SonnabendLaw.com
mike
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Re: Hold Harmless and Indemnify
« Reply #3 on: May 31st, 2005, 9:05am »
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Jeff,
 
Thanks for your comments.
 
I have researched many license agreements and have never seen an indemnification by licensor line item.  
 
Also, I just can't get past the idea that it is the product, not the patent, that infringes.  
 
mike
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