🎯 Negotiation Overview

Ownership clauses are among the most high-stakes provisions in an NDA. They determine who owns what during and after the relationship. Poor negotiation can result in:

- Losing rights to your pre-existing IP
- Forfeiting valuable improvements or innovations you develop
- Giving away feedback and suggestions that could be worth millions
- Unclear ownership that leads to expensive litigation

The key is clarity: both parties should know exactly who owns what before, during, and after the NDA relationship.

💬 Negotiation Strategies by Position

If You're the Disclosing Party (Protecting Your IP)
  • 1

    Claim ownership of all derivative works

    Push for language that assigns you ownership of any analyses, improvements, modifications, or derivative works based on your confidential information. This prevents the receiving party from profiting from your IP.
  • 2

    Include feedback assignment provisions

    If the receiving party will provide suggestions about your products or technology, include language assigning those ideas to you. This is standard in technology evaluation agreements.
  • 3

    Require cooperation on IP registration

    Include a commitment from the receiving party to sign documents needed to register or enforce your IP rights in any derivative materials they create.
  • 4

    Make ownership provisions survive termination

    IP ownership shouldn't depend on whether the NDA is still in effect. Ensure the ownership clauses survive termination in perpetuity.
If You're the Receiving Party (Protecting Your IP)
  • 1

    Carve out pre-existing IP explicitly

    Document and protect all IP you owned before the NDA. Include language that nothing in the NDA affects your pre-existing rights, even if your technology appears similar to what you receive.
  • 2

    Protect independent development rights

    Ensure you can continue developing in your field without fear that parallel innovations will be claimed by the disclosing party. Independent development carve-outs are critical.
  • 3

    Limit or eliminate feedback provisions

    Push back hard on automatic assignment of "feedback" or "suggestions." At minimum, limit this to specific documented feedback rather than all ideas shared during the relationship.
  • 4

    Own your work product format

    Even if you can't own the underlying confidential information, negotiate to own the format, structure, and original content of reports and analyses you create.
⚠ The Feedback Trap
Many standard NDAs include broad feedback clauses that automatically assign all "suggestions, ideas, enhancement requests, feedback, or recommendations" to the disclosing party. This can strip you of valuable ideas worth millions.

Example: You're evaluating a software product. You mention "this would be great if it had feature X." Under a broad feedback clause, you've just given away the idea for feature X - even if you were already developing it independently.

Negotiate for: Feedback limited to written submissions specifically labeled as feedback, or delete the provision entirely.

👥 Joint Development Scenarios

When both parties will contribute IP or work together on development, ownership becomes significantly more complex. A standard NDA ownership clause is typically insufficient.

Joint Development IP Allocation
Party A Pre-Existing IP
Owned by Party A
Party B Pre-Existing IP
Owned by Party B
↓
Jointly Developed IP
Requires allocation agreement:
- Joint ownership?
- One party owns, other licenses?
- Split by field of use?
Ownership Model Pros Cons
Joint Ownership
(Both parties co-own)		 - Fair when both contribute equally
- Neither party is cut out 		- Either party can license to third parties (usually)
- Decisions require agreement
- Complicates enforcement
Single Owner + License
(One owns, other gets license)		 - Clear ownership
- Easier to commercialize
- Simpler enforcement 		- Feels unfair to non-owner
- License terms become critical
- Risk if owner goes bankrupt
Field of Use Split
(Each owns for their market)		 - Both can commercialize
- Clear boundaries
- Works for non-competing parties 		- Complex to define fields
- Markets may overlap
- Disputes over new applications
Background/Foreground Split
(Pre-existing vs. new)		 - Protects existing IP
- Only new IP is allocated
- Clear conceptually 		- Hard to separate in practice
- New IP often builds on old
- Documentation burden
💡 When to Use a Separate JDA
If true joint development is contemplated, consider a separate Joint Development Agreement (JDA) rather than trying to handle everything in the NDA. A JDA should address:

- Detailed IP allocation for all possible outcomes
- Contribution tracking and valuation
- Decision-making processes
- Commercialization rights and revenue sharing
- Enforcement responsibilities
- Exit procedures if the relationship ends early

🛠 Red Flags to Watch For

Automatic Assignment of All Developments
Language like "all inventions, improvements, or developments made by Receiving Party during the Term shall be the property of Disclosing Party" goes too far. This could capture your independent work unrelated to the disclosed information.
No Pre-Existing IP Protection
If the clause doesn't explicitly protect pre-existing IP, you risk claims that your existing technology was somehow derived from disclosed information, especially if there's any similarity.
Unlimited Feedback Assignment
Broad definitions of "feedback" that include "ideas," "suggestions," or "recommendations" can sweep up valuable IP you share casually. At minimum, require feedback to be in writing and specifically designated.
Assignment of IP You Don't Own
Some clauses require you to assign IP that may not be yours to assign (e.g., developed by employees before proper assignment, or subject to prior licenses). This can create breach of contract claims.
Perpetual Power of Attorney
Some clauses appoint the disclosing party as attorney-in-fact to sign IP assignments on your behalf if you refuse or are unavailable. This can be appropriate but should be limited to situations where assignment is clearly required.

✅ Pre-Negotiation Checklist

💡 Sample Negotiation Language

Pre-Existing IP Protection
"Nothing in this Agreement shall affect either party's ownership of intellectual property that such party owned or had rights to prior to the Effective Date, or that such party develops independently without use of the other party's Confidential Information, regardless of any similarity between such intellectual property and Confidential Information received hereunder."
Limited Feedback Assignment
"Feedback shall mean only written suggestions specifically labeled as 'Feedback' and submitted through the designated feedback process. Casual comments, discussions, or suggestions made outside this formal process shall not constitute Feedback and shall not be subject to assignment under this Agreement."
Work Product Ownership
"Receiving Party shall own all right, title, and interest in analyses, reports, and presentations prepared by Receiving Party, provided that: (a) such materials do not reproduce or directly quote Confidential Information; (b) Receiving Party's use of such materials does not require disclosure of Confidential Information; and (c) such materials do not contain trade secrets or proprietary methodologies of Disclosing Party."
Joint Development Placeholder
"If the parties engage in joint development activities, ownership of resulting intellectual property shall be governed by a separate Joint Development Agreement to be negotiated in good faith prior to commencement of such activities. Until such agreement is executed, neither party shall have rights in intellectual property created by the other party."