[IGDA_indies] residual information

Tom Park indies@igda.org
Fri, 23 May 2003 11:48:50 -0700

OK, trying this again as text.

----- Original Message ----- 
From: Tom Park 
To: indies@igda.org 
Sent: Friday, May 23, 2003 10:14 AM
Subject: Re: [IGDA_indies] residual information

> In the past I have successfully negotiated for joint ownership without 
> accountability for non-application-specific reusable code libraries.  I 
> have never heard of Residual Information before, however.  Please post 
> the Residuals clause so that I may incorporate it into my contract template.

Some of these URLs below are long so i hope no one minds
HTML email.

I have to say this first:


Sorry about that. OK, so, i googled and found these
on the web. I'm simply quoting what other people have
publicly posted:

This first one is someone's suggestions.

If you are the party receiving information, the following
clauses help restrict your company's future development as
little as possible:

.  A narrow definition of "confidential information" so
   that as little information as possible is covered by
   the agreement
.  Defining confidential information in the agreement
   or as items labeled "confidential" in writing, so that
   what information is covered by the agreement and what
   is disclosed is more easily proven.
.  Exceptions to the definition of "confidential information"
   which include necessary disclosure to the government if
   required (SEC filings, investigations, etc.); information
   developed by your employees without reference to the
   disclosed information; information already publicly known
   (it's posted on the internet, has been already issued in
   a press release, etc.), and others.
.  A "residual knowledge" clause which states that anything
   your employees remember in their heads, they can use.
   This is based on the presumption that it is impossible
   for people to entirely keep straight in their minds what
   information came from where.


5. Residual Knowledge.   Recipient may enhance its
knowledge and experience retained in intangible form
in the unaided memories of its directors, employees/
contractors and advisors as a result of viewing
Discloser's Confidential Information. So long as
Recipient complies with Section 4 of this Agreement,
Recipient may develop, disclose, market, transfer
and/or use such knowledge, experience and intellectual
property that may be generally similar to Discloser's
Confidential Information, and Discloser shall not have
any rights in such knowledge, experience or intellectual
property nor any rights to compensation related to the
Recipient use of such knowledge, experience or
intellectual property, nor any rights in Recipient's
business endeavors.


Residuals.   Nothing in this Agreement shall preclude
Buyer from working with third parties, including Sub-
contractors, on the Products nor on developing products
similar to the Products subject to the limitations
herein. Subject to each party's obligations with
respect to Confidential Information set forth above,
either party may use any general learning, skills, or
know-how or other Residual Information ("Residuals")
for any purpose, provided that this right to Residuals
does not represent a license under any patents,
copyrights or other intellectual property rights of
the other party. "Residual Information" means any
information retained in the unaided memory of a person
who had access to the disclosing party's Confidential


4.4 Residual Knowledge.   Except with respect to the
development of other test applications intended to
validate compatibility with the MHP specification, or
portions thereof, which shall not mean the development
of test programs as development tools that are only
for Licensee's internal use, the Agreement is not
intended to prevent those employees of Licensee to
whom Confidential Information is disclosed pursuant
to Section 4.2 from using Residual Knowledge, subject
to any valid patents, copyrights, and semiconductor
mask rights of the disclosing party. Residual Knowledge
means ideas, concepts, know-how or techniques related
to the disclosing party's technology that are retained
in the unaided memories of the receiving party's
employees who have had access to information. An
employee's memory will be considered unaided if the
employee has not intentionally memorized the
information for the purpose of retaining and
subsequently using or disclosing it.


5. Residual Knowledge   Recipient may use its knowledge
retained in intangible form in the unaided memories of
its directors, employees, contractors and advisors as
a result of exposure to the disclosing party's
("Discloser") Confidential Information. The Discloser
acknowledges that the Recipient may have in conception
or development technology and/or software which may be
very similar or even identical to Discloser's
Confidential Information and, as long as the Recipient
abides by Section 4 herein, Discloser shall have no
rights in such technology and/or software. 


6. Residual Information   The Recipient may disclose,
publish, disseminate, and use the ideas, concepts,
know-how and techniques, related to the Recipient's
business activities, which are contained in the
Discloser's Information and retained in the memories
of Recipient's employees who have had access to the
Information pursuant to this Agreement (Residual

Nothing contained in this Section gives the Recipient
the right to disclose, publish, or disseminate, except
as set forth elsewhere in this Agreement:

1. the source of Residual Information;
2. any financial, statistical or personnel data of the
Discloser; or
3. the business plans of the Discloser.