The Anti-NDA for Idea Submissions (Instead of the “Feedback License”)

In an earlier post, I explained that the standard “feedback license” arises out of a misunderstanding of IP — and generally asks too much from the would-be licensor. After some kvetching in the comments from Professor Eric Goldman, I suggested a “Disclaimer of Idea Restrictions” instead of a feedback license. Since then, I’ve expanded on that idea and drafted more detailed terms for such a disclaimer. The clause below could appear in a larger contract or serve as the central clause in an agreement about feedback and idea submissions: a contract I now call the “Anti-NDA.” (Apologies to those who didn’t follow the earlier posts. You’ll clear up any confusion if you review the first post, linked above.)

Section _. FEEDBACK. Company has not agreed and does not agree to treat as confidential any suggestion or idea provided by Discloser (any “Feedback”), and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Company’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensating Discloser. 

(a) No IP. Without limiting the generality of the foregoing, Discloser agrees that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to software, inventions, or other assets created by Company, even if such Feedback leads Company to create the software, invention, or other asset. This Section __ does not give Company a license to any patent or copyright Discloser may have in Feedback.

(b) No Obligations re Feedback. Company shall have no obligation to incorporate Feedback into any product or service, and Discloser shall have no obligation to provide Feedback.

A final note. The last sentence of Subsection (a) protects the discloser. If this becomes your company’s standard form, you might not worry about protecting the discloser: the other party. But some smart disclosers will insist on this clarification.

[Since publication of this post, this new language has gone into the second edition of The Tech Contracts Handbook, in Chapter II.N. And you can find approximately the same language in our forms library, ready for copying and pasting.]



© 2013, 2015 by David W. Tollen. All rights reserved.

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