IP Attorney, Avago Technologies, Fort Collins, CO, USA
A confidential disclosure agreement (CDA) is arguably the most commonly used contract between companies. However, its commonality and ease of use can overshadow the many serious implications and issues associated with a CDA. Of the many issues surrounding CDAs, this article highlights five aspects of CDAs that frequently elicit philosophical tension between parties. Consciously assessing each CDA’s (i) scope, (ii) offensive or defensive position, (iii) residual rights clauses, (iv) reverse-engineering provisions, and (v) limitation (or not) of damages, lays a good foundation to help assure a party does not execute an unfavorable CDA. Even though it may be short and commonly used, there is no such thing as a simple CDA.
Although the principles mentioned in this article apply worldwide, the law cited is drawn solely from the jurisprudence of the United States.
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