The Licensing Corner

Sean Hogle

Rooney Nimmo PC

RESPONSIBILITY FOR STRICT LIABILITY IP INFRINGEMENTS: DEVELOPERS VS. LICENSORS

A typical corporate purchaser of technology solutions or development services has procurement policies in place mandating that sellers of such solutions or services indemnify and defend the buyer from third party claims of intellectual property rights infringement. "If I’m sued because of your [insert: product or deliverable]" the argument goes, "then you should step up and take responsibility to your customer for your failure to respect third party IP rights." This stance, although ubiquitous, may sometimes fail to appreciate the differences between developers and licensors—particularly with respect to infringements of so-called "strict liability" IP rights, in which liability attaches regardless of intent or knowledge. Whether the purchase is of a product or a deliverable matters a great deal.