Whether or not a discloser needs a grant back clause in a non-disclosure agreement depends upon the use to which the recipient will put the confidential information. If the confidential information is disclosed solely for purpose of evaluation, chances are the discloser does not need a grant back clause. For example, if, in the course of the recipient s evaluation, the recipient plans to engage in extensive lab work, or conduct performance tests or review quality control procedures, clearly those activities go well beyond a simple evaluation. The possibility that the recipient will discover an enhancement or improvement is certainly not remote in that circumstance. There is a difference between confidential information and proprietary information.
Proprietary information is usually intellectual property.
Confidential information may be proprietary information. But it doesn t have to be. In that case, you should take steps to ensure that the recipient does not use your confidential information to discover your proprieta ry information. Let me give you an example. Let s say that you are a software developer.