Should I be worried that a potential client wants us to guarantee that we will cover the litigation costs if they are sued for using our software?

A 0.31 second Google search located this: http://i.cdn.turner.com/nascar/.element/pdf/2.0/sect/kyn/NASCAR_Prospective_Licensing_Application.pdf

First of all, what you have is a provisional patent **application**. For now, the provisional patent application is not publicly available. This can be a big advantage to you. You can use this time to improve your invention and file additional provisional applications. If you don't plan on making/practicing the invention yourself, you should make sure to try to think of everything possible regarding how that invention can be improved. This would (hopefully) come naturally to a practicing inventor. When you file your non-provisional application, your disclosure will be made public ("published") 18 months from the filing of the non-provisional. While your applications are not publicly available, I suggest waiting until you file your non-provisional application(s) to talk to others. Quite often, provisional applications do not have the detail or the scope that the non-provisional will have -- due to the time spent on getting drawings accurate and making sure everything is included in your non-provisional applications. It is best to have a complete application before talking to practicing companies. Sophisticated companies will take advantage of information not disclosed in your provisional application to file their own patent applications. If your applications are not publicly available (or even they are published), you should sign confidentiality agreements (non-disclosure agreements) with anyone you talk to about licensing or buying your invention. Keeping track of who you talked to with confidentiality agreements can be the basis for "notice" of the invention by an infringer -- when they eventually steal your invention. You can sell your idea anytime, but a provisional application is worth a lot less than a non-provisional application which is worth less than an allowed application or issued patent. Provisional applications are generally not as complete as they could be -- and require additional time and finesse to complete the non-provisional application. In terms of appearances, if you are not willing to put in the money to file the non-provisional application, the invention is likely not worth that much money. Companies as well as non-practicing entities may look at provisional applications, but not for long, and will not give you the kind of money that you may get from selling a fully examined patent. Of course, it depends on how good your invention is.

This is always a question of who wants whom more. I've seen deals where the percentage was in single digits. The thing is, I've seen both deals where a LICENSEE ended up with a single digit percentage and deals where a LICENSOR ended up with a single digit percentage. It all comes down to your ability to convince the other side that you are bringing in so much to the table that the other side should get a smaller piece of the pie. Essentially, this depends on these factors: - whether you are well-known in the industry; - whether the other side is well-known in the industry; - the level of uniqueness of your product (if you've developed another minor variation of a product that already exists on the market, chances are the distributor will want a larger piece of the pie); - your level of desperation (it's one thing when you partner up with someone else who will commercialize your product simply because you can make more money by investing your time building new stuff; it's another thing when you have no realistic way to commercialize the product yourself, and if you don't find someone who can do it for you quickly, you'll starve...) MOST IMPORTANTLY, no matter what number you agree to, make sure you read the contract extremely carefully. Contracts can create rights and contracts can destroy rights. Contracts are more powerful than any rights vested in you by IP laws. So, the bottom line is: - Know EXACTLY what you are trying to get out of your contract; - Get your contract reviewed by an experienced lawyer, but make sure you tell the lawyer what it is you're trying to get out of the contract. Lawyers are not going to create "the right deal" for you. We're not going to tell you whether you should be getting 9% or 90% of the revenue. We're going to make sure that you understand whether the contract you are about to sign reflects what you think the terms of the contract are. You're welcome to schedule a call if you would like to discuss this in more detail. Cheers, Andrei

Any suit run by a competent lawyer will ensure that the parties named in the suit include everyone who might be able to pay. So, while your LLC might own some products, it may not be the only entity sued. You might be sued, along with all kinds of other people and companies. I'm not saying there's nothing you can do, but you certainly cannot escape having to defend a suit. Anyone can sue anyone else, even if the suit will ultimately be unsuccessful. You ask how can you handle being sued without going to court? The answer is negotiate a settlement that results in the lawsuit being dropped. So, what have you got to trade? What damage could you do if they continue to sue you, and so on.

I've been in ecommerce for over a decade and have co-founded and helped start companies collectively driving over $10MM in ecommerce sales. I've consulted for Fortune 500 ecommerce stores. Here's my advice if you're just getting started without a big budget. Note: Some of this is copied from my answer to a similar question. #1) PROVE THE ASSUMPTION: Start with a dropshipper's existing products to figure out what sells best before you spend money on manufacturing and warehousing. Amazon is perfect for this - they will pay you 4%-10% to promote 253,000,000 products (http://bit.ly/1q2M85R) - you can sign up at https://affiliate-program.amazon.com/ Alternately, get very small amounts of the product (maybe even just buy some from a competitor) and try selling them on ebay and amazon. Nothing hurts more than having $50,000 of imported product gathering dust in your fulfillment warehouse while listening to a voicemail from a debt collector. #2) SOURCING There are several options here. Many people prefer Alibaba.com. Warning - if you use Alibaba, you are stepping into a tank of pirahnas. There are more scam "manufacturers" on Alibaba than real ones. Use Escrow or AliSecure Pay if you buy. If the supplier says they only take T/T, Western Union, Moneygram - just say no! I prefer American Made when possible. If you're like me, try Ariba's Discovery Service - http://bit.ly/1q2NFZu - which will allow you to find suppliers with a physical presence in the USA. Note: Many things can be made on demand (someone purchases, one gets made and shipped) instead of in 500+ manufacturing runs. Start there if you can - Books on CreateSpace.com, Clothes on CafePress.com, Playing Cards on MakePlayingCards.com, etc - to test out your exact product. If you decide to source by purchasing product in bulk, find a fulfillment company to store and fulfill (ship) your orders. Amazon does this - http://services.amazon.com/content/fulfillment-by-amazon.htm - but they might decide to crush you like a bug if you're successful (http://bit.ly/1q2V7DX). Other fulfillment companies for e-commerce include http://www.shipwire.com/ and http://www.webgistix.com/ #3) LAUNCH YOUR SITE This is an entire topic in itself. One of the fastest ways I know for newbies to start in e-commerce is with a SquareSpace.com store. Other options include GoDaddy.com and BigCommerce.com. If you can stand to use the templates they provide instead of trying to customize them, you'll save yourself a lot of hassle and expense - customization usually looks terrible unless a designer/coder was hired to do the work. If you do customize, find someone on odesk.com or elance.com. If you're not hard up for money, just build a custom store from the start. If you can't do that, save up some money and then go for it. Focus on increasing conversion rate - for every 100 visitors, get 1 to buy. Then 2. Then 4. Then 8 (8%). #4) MARKET Figure out where your competition is advertising. Are they getting free, "organic" SEO results on Google? Using social media to drive billions of dollars of sales? (NOTE: That was a joke - don't count on social media as the nucleus of your marketing campaign. Please!) Are they paying for Google ads ("PPC"), buying email lists, using strategic partnerships for promotion, relying on shopping portals, using banner advertising, or something else entirely? There's probably a good reason - figure out what it will take to play in those waters. At the same time, try to find a small enough niche that you can win in it. #5) BEWARE Be careful about artsy things. If someone is attracted to something artistic, it's usually because there is a story behind the art for them, or because it's cheap. If you're going to try to sell artistic things, you may want to consider doing some serious research first about who has been successful in that area. Look at etsy.com to see handmade artsy items (very cool). #6) WORTH A LOOK Worth checking out as you start your journey: Art.com, yessy.com, Artfire.com, ArtPal.com #7) DEEP FOUNDATION If you need help, reach out for a 15 minute call and we'll discuss a go-to-market strategy specific to your goals.