When a manufacturer or dealer sells a product, is there an implied warranty that the product does not infringe adversely-owned patents? In other words, does the purchaser who is successfully sued for infringement have the right, without an indemnity clause, to be indemnified by the seller?
Many lawyers, especially patent lawyers, who are accustomed to advising the insertion of express patent warranties in sales contracts to take care of the matter, have answered this question instantly and positively in the negative, and it is quite possible that according to fundamental principles of implied warranties they are right, and yet all of the decisions on the point except one British decision have decided otherwise, and hence many who know of such decisions would probably answer the question with an equally positive affirmative.
The purpose of this paper is to set forth some of the considerations on both sides in the hope that future decisions on the point will at least be more thoroughly considered than those of the past so that their holdings can be more authoritative.
IMPLIED WARRANTIES OF NON-INFRINGEMENT,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol44/iss6/3