As part of our Intellectual Property Litigation practice, we provide patent indemnification & indemnity disputes litigation services.

Given the high costs of patent litigation, a patent indemnification agreement or clause can provide significant protection. Patent indemnity agreements help limit risk and liability of a party should patent infringement issues arise. Our patent counseling services include review of and drafting of patent indemnity agreements as well as litigating in patent indemnification litigation cases.

Patent Indemnity Agreements & Patent Indemnification Litigation

Patent indemnification clauses are common provisions in agreements between parties that desire to shift the risk of loss.  In patent indemnification, an existing indemnity clause in an agreement determines which party bears the brunt of infringement risk. A patent indemnity clause may also include the obligation to “defend” and/or “hold harmless” the other party.  Generally, a patent indemnification agreement obligates one party to compensate the other party for losses or damages covered by the indemnity clause.

For example, in litigation against a seller of goods, an indemnified seller can shift defense of litigation to the supplier. Therefore, agreements involving patent rights should include patent indemnification clauses. The following types of agreements could include some form of indemnity, for example:

  • Reseller Agreements

  • Manufacturing Agreements

  • Distribution Agreements

  • Sale of Assets or a Business

Patent Indemnity Disputes

 Even though indemnity agreements may be included within business transaction agreements, indemnity disputes and patent indemnification litigation can arise. Therefore, well-written patent indemnity agreements and clauses are important. Companies should seek patent attorneys with both knowledge as well as experience in reviewing and revising patent related commercial agreements.

Often, indemnity disputes arise when language in an agreement claiming to provide indemnity is lacking specificity or can be interpreted in different ways. This can lead to patent indemnification litigation between parties attempting to offload risk to another when indemnity responsibility is unclear.

Importance of Patent Indemnity to Avoid Patent Indemnification Litigation

In drafting patent indemnification clauses to avoid indemnity disputes, care should be taken to identify the specific rights and indemnity given. Patent indemnification agreements should be clear as well as identify specific circumstances that provide a party isn’t liable for patent damages. Without clear indemnity language, parties may end up in indemnity disputes, or worse, battling each other in patent indemnification litigation. Well-drafted patent indemnity clauses or patent hold harmless agreements can protect against third-party claims for patent infringement.

Patent Indemnification Considerations in Commercial Transactions

Getting adequate patent indemnification at the forefront of entering commercial transactions will help save on handling indemnity disputes and avoid costs of patent indemnification litigation. Among other factors, the scope of the patent rights indemnity obligations will likely differ depending on the following:

  • The particular party to the transaction

  • Risk of third-party claims

  • Limitations on damages

  • Fiduciary relationships

  • Indemnity obligations

Patent Indemnification Litigation and Indemnity Disputes

Read more about our litigation services at our intellectual property litigation overview page and our business litigation overview page, including Intellectual Property Indemnification Litigation and Patent Indemnification Litigation.

Local Counsel for Patent Indemnity Litigation Matters

We also act as local counsel for out-of-state plaintiffs and defendants involved in patent indemnification disputes litigation in state and federal courts in Texas. See our Local Counsel page for more information regarding our services.

Additional Insights Regarding Patent Indemnification

For more information on patent indemnity agreements, see our Legal Insights and Industry Solutions pages.