contract-law intellectual-property non-disclosure
Is it possible for a party to a contract to use a mutual NDA primarily to constrain the other party?
<p>I am more regularly entering in meetings in which my group and others need to collaborate on technical details, while protecting our respective intellectual property. Typically we sign mutual non-disclosure agreements and then continue on to the technical detail in question.</p>

<p>The nominal intent of these meetings is to entertain the possibility of collaboration on special projects. While we always enter meetings in good faith, I am aware at some point we may have the misfortune of enter a meeting with a group looking to tactically create a protection of their IP.</p>

<p>In such a meeting I imagine the other party may bring and present a large quantity of information for the specific purpose of ensuring we are prevented from using it. The only protection I know of is for us to independently document and date our own IP in a way that would stand up in court.</p>

<p>This could well be an exhaustive task and yet still not protect us from being constrained on future research projects should the sought partnership not eventuate with the other party. In the event we did not participate in the meeting and be exposed to the other party's IP, we would be free to develop similar projects. The act of having the meeting and agreeing to the NDA could then have the effect of creating a barrier to development that we would not intend.</p>

<ol>
<li>Is this ever a consideration for people entering into agreements or should the meeting only be agreed if good faith is established beforehand?</li>
<li>Is there language that could be used in an NDA that would prevent these abuses?</li>
<li>Is it ever common practice to agree a priori the topics to be covered so as to not be exposed to the technical details that might create this issue?</li>
<li>Are there documented cases of parties entering into protected meetings for the intent of tactical constraint of the other?</li>
<li>Are there any strategies people typically take going into these meetings that specifically prevent the issue from arising?</li>
</ol>

<blockquote>
  <ol>
  <li>Is this ever a consideration for people entering into agreements or should the meeting only be agreed if good faith is established beforehand?</li>
  </ol>
</blockquote>

<p>Yes, it's a consideration.  Hence the common countermeasures enumerated below.</p>

<blockquote>
  <ol start="2">
  <li>Is there language that could be used in an NDA that would prevent these abuses?</li>
  </ol>
</blockquote>

<p>Every NDA I've ever read exempts IP that a party can establish it possessed prior to revelation by the counterparty.</p>

<blockquote>
  <ol start="3">
  <li>Is it ever common practice to agree a priori the topics to be covered so as to not be exposed to the technical details that might create this issue?</li>
  </ol>
</blockquote>

<p>Yes.</p>

<blockquote>
  <ol start="5">
  <li>Are there any strategies people typically take going into these meetings that specifically prevent the issue from arising?</li>
  </ol>
</blockquote>

<p>Yes: In addition #2 and #3, many NDAs will invite parties to explicitly enumerate on an Addendum IP that they already possess, that they may be concerned might come into conflict.</p>
