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Intellectual Property Law

New Matter SUMMER 2019, Volume 44, Number 2

The Licensing Corner

John Pavolotsky
Intel Corporation

THE TRAIL LESS TRAVELED: EVALUATING THE BENEFITS AND COSTS OF THE IMPLIED WARRANTY OF NON-INFRINGEMENT

I have been visiting Sawyer Camp Trail, in San Mateo County, for at least the past 25 years, most recently on an early Sunday morning run, the air cool, the sky crystal clear, the trail empty but for a few other runners and a deer or two, the hills still verdant after months of seemingly unending rain. Usually, I start at the south end of the trail, with the Crystal Springs Reservoir and Coastal Range to my left. A gorgeous canopy of trees immediately precedes the one-mile marker. At mile two, the reservoir narrows somewhat. At mile three, a service road crosses the trail, followed by a mild descent to the Jepsen Laurel Area (mile 3.5). The trail is still flat at mile four, under a cathedral of trees, but ascends rather dramatically from mile 4.5 to five, with a view of the San Andreas Lake as the reward, followed by a brief (0.25 mile) respite and then one final (0.75) mile climb, to the north terminus of the trail. Does it ever get old? Not really. On some mornings, the fog rolling in from the Pacific creeps over the ridges and just hangs there. A lone hawk might circle over the trail, or an errant coyote might peer over the trail from a nearby hill. During our Indian summers in Northern California, areas some distance from the trail are emblazoned in reds, primarily thanks to poison oak plants, or the trail is covered by the leaves or needles from the innumerable coastal oak and Monterey pine trees, cushioning each step during a long run.

Suffice it to say I find negotiating intellectual property indemnity clauses considerably less satisfying than Sawyer Camp Trail, although on at least a few long runs, I have found myself refining formulations and arguments in my mind. So much for mindfulness. There is one other connection: as intimated above, despite years of visiting the same trail (or contractual provision), both tend to reveal something new, each time I lace up (or open a draft from opposing counsel).

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