Never rely on UCC implied warranty of noninfringement.
Indemnification occurs most often in title and noninfringement. UCC § 2-312(3) states that indemnification by seller is “free of the rightful claim of any third person by way of infringement or the like"; and by buyer is "harmless against any such claim which arises out of compliance with the [furnished] specifications.“ However, there a gaps in the UCC’s wording which makes it difficuly to rely on the UCC’s warranty of noninfringement. This video reviews other problems you may face if you rely on UCC’s implied warranty including, a battle of the forms, determining the rightful claim, etc. The implied warranty only extends to delivery of non-infringing goods - not to later infringing use that buyer makes with the product.
Mark R. Privratsky
Ballard Spahr LLP
- Over twenty years’ experience handling complex commercial and intellectual property based transactions and dispute resolution
- Advises clients’ senior management to avoid risks, win disputes, and defend and enforce patents, trademarks, copyrights, and trade secrets
- Protects, transfers, and monetizes IP assets by writing and negotiating agreements on behalf of technology, manufacturing, and other clients
- Leads Ballard Spahr’s Minneapolis office’s intellectual property department and is a member of the firm’s Technology Committee
- Frequent lecturer on intellectual property issues
- Recognized by Best Lawyers in America and as a Super Lawyer
- J.D. degree, with high distinction, College of Law, University of Nebraska
- Can be contacted at [email protected] or 612-371-3524
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