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Liability protection
Dominik Textor
开云体育Hi GordonThis might have gotten slightly out of hand. I’m the one that shared the design for the PEEP valve with you, and with the rest of the world. If you choose to use, test and or modify my design is up to your group. I am way too much involved with two other groups that I’m working for to be a part of your team as well. That doesn’t mean that I won’t help you should you need something PEEP-specific that I could provide. But I’m not an active member of your development team and I’m not providing a tested and approved solution for valves. Wish you and your project all the best. Dominik
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开云体育Thank you Domenick, I don’t know what that means as far as them being able to use your designs. ? Perhaps you could clarify that. ? If you were able to be granted full protection would you then be interested in making your designs available?On Apr 6, 2020, at 17:14, Dominik Textor <dtextor@...> wrote:
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Dominik Textor
开云体育My designs are absolutely available to everyone that choses to use them. They are on Thingiverse under?the?Creative Commons - Attribution - Non-Commercial - Share Alike license.So the design can be used and altered as long as I get attribution. Basically: you can’t claim it’s your design and you can’t start selling it. But what you do with it is up to you. It’s certainly not a validated medical PEEP valve. But that should be obvious if you have to 3D print something yourself.. But then again, we wouldn’t be here if there were enough of them available. Does that help?
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开云体育Yes, it helps individual volunteers, but it won’t make it available for larger volume manufacturersAt the rate this is going, however we are not going to see that anyway.? Thank you for that clarification!! On Apr 6, 2020, at 17:37, Dominik Textor <dtextor@...> wrote:
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Dominik Textor
开云体育Commercially not in the present form. However, this form is specifically adapted for 3D printing and large volume manufacturing would be injection casting. It’s not like I invented the PEEP valve, I just open-sourced a printable and seemingly working derivate.. Every pressure cooker uses it and Ambu has a specific patent for their design. If you want to do this commercially you can use this technology as long as you don’t infringe an existing patent. But if you want to present a working prototype then you can use and/or adapt my design.The only thing you can’t do is claiming that you thought that this PEEP valve was a true and tested medically approved valve should something go wrong.
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K9HZ
开云体育In difference to others… all of the engineering, designs, code, and otherwise intellectual property developed by me or my Company as it may pertain to the open source ventilator project as such is free and open for anyone to use with only the stipulation that I/ my company is indemnified against it use.? It’s just that simple.? Others should follow. ? ? Dr. William J. Schmidt - K9HZ J68HZ 8P6HK ZF2HZ PJ4/K9HZ VP5/K9HZ PJ2/K9HZ ? Owner - Operator Big Signal Ranch – K9ZC Staunton, Illinois ? Owner – Operator Villa Grand Piton – J68HZ Soufriere, St. Lucia W.I. Rent it: Like us on Facebook! ? Moderator – North American QRO Group at Groups.IO. ? email:? bill@... ? ? From: [email protected] [mailto:[email protected]] On Behalf Of Dominik Textor
Sent: Monday, April 6, 2020 4:14 PM To: [email protected] Subject: Re: [VentilatorDevelopers] Liability protection ? Hi Gordon ? This might have gotten slightly out of hand. I’m the one that shared the design for the PEEP valve with you, and with the rest of the world. If you choose to use, test and or modify my design is up to your group. I am way too much involved with two other groups that I’m working for to be a part of your team as well. That doesn’t mean that I won’t help you should you need something PEEP-specific that I could provide. But I’m not an active member of your development team and I’m not providing a tested and approved solution for valves. ? Wish you and your project all the best. ? Dominik
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Bob WO6W
开云体育All of the engineering, designs, code, and otherwise intellectual property developed by me as it may pertain to the open source ventilator project as such is free and open for anyone to use with only the stipulation that I am indemnified against its use.? ? Robert Leichner WO6W ? ? From: [email protected] [mailto:[email protected]] On Behalf Of K9HZ
Sent: Monday, April 6, 2020 3:36 PM To: [email protected] Subject: Re: [VentilatorDevelopers] Liability protection ? In difference to others… all of the engineering, designs, code, and otherwise intellectual property developed by me or my Company as it may pertain to the open source ventilator project as such is free and open for anyone to use with only the stipulation that I/ my company is indemnified against it use.? It’s just that simple.? Others should follow. ? ? Dr. William J. Schmidt - K9HZ J68HZ 8P6HK ZF2HZ PJ4/K9HZ VP5/K9HZ PJ2/K9HZ ? Owner - Operator Big Signal Ranch – K9ZC Staunton, Illinois ? Owner – Operator Villa Grand Piton – J68HZ Soufriere, St. Lucia W.I. Rent it: Like us on Facebook! ? Moderator – North American QRO Group at Groups.IO. ? email:? bill@... ? ? From: [email protected] [mailto:[email protected]] On Behalf Of Dominik Textor ? Hi Gordon ? This might have gotten slightly out of hand. I’m the one that shared the design for the PEEP valve with you, and with the rest of the world. If you choose to use, test and or modify my design is up to your group. I am way too much involved with two other groups that I’m working for to be a part of your team as well. That doesn’t mean that I won’t help you should you need something PEEP-specific that I could provide. But I’m not an active member of your development team and I’m not providing a tested and approved solution for valves. ? Wish you and your project all the best. ? Dominik ?
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开云体育All of the engineering, designs, code, and otherwise intellectual property developed by me as it may pertain to the open source ventilator project as such is free and open for anyone to use with only the stipulation that I am indemnified against its use.?Bob, that’s exactly the point!!! ?Trying to make that happen!! ?When they said we didn’t.....that was a problem!! ? On Apr 6, 2020, at 18:47, Bob WO6W <bobhome@...> wrote:
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开云体育All of the engineering, designs, code, and otherwise intellectual property developed by me, or other contributions, as it may pertain to the open source ventilator project as such is free and open for anyone to use with only the stipulation that I am indemnified against its use.? ? I hope the guys in India and elsewhere are having a better experience with their legal systems in attempting to help their people. ? ? Thank You, _____________________________________________________ ? |
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Thanks to all.? ?Several of you have specifically requested that you be "indemnified".? ?That is exactly what you are NOT if I understand it right now; you might be, but it would depend on how certain Florida law etc is interpreted and you would likely need a lawyer to defend yourself.? ?If UF does what Mr. Dan D'Alesio says he can do, that will all go away and those who are identified as significant volunteers (I asked for up to 10) will be protected.
I had this protection my entire working career.? ?To have people not provide it now that I am working for free?? ?Crazy.? ?Mr. D'Alesio recognizes this and hopefully will solve this.? ?Dr. Nik Gravenstein (very good friend of mine and mentor over many years; we've worked together many times) has taken on the task of moving the paperwork.? ?I reprinted the list of those wishing protection, and also those ostensiblly declining it (though many of you gave ambiguous answers -- demanding that you be indeminified ) So we will see where this goes.? ?It is sad that UF did not choose to move on this when I first brought it up days ago, and that they only moved when I ceased providing any more input to the team.? ?But sometimes it takes drastic measures to bring partners to the table.? Y'all are welcome to do whatever you wish, but about 80% of intubted patients DIE....and if you have never been sued before you might think that through and look into how much a lawyer charges PER HOUR and how much your out of pocket will be for expert witnesses, per diem, travel expenses....yeah, it's a lot.? ?All preventable easily by UF simply exerting their sovereign immunity to cover people who are working for FREE for them.? ?Should have been done from the very start.? ?i apologize that it took several of you to point out to me the issue.?? Sincerely, Gordon L. Gibby MD KX4Z |
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K9HZ
开云体育“Thanks to all.? ?Several of you have specifically requested that you be "indemnified".? ?That is exactly what you are NOT if I understand it right now; you might be, but it would depend on how certain Florida law etc is interpreted and you would likely need a lawyer to defend yourself.? ?If UF does what Mr. Dan D'Alesio says he can do, that will all go away and those who are identified as significant volunteers (I asked for up to 10) will be protected.” ? Well that’s just it.? ??The only way UF gets the permission to use the knowledge is if you indemnify me/ My company… and I can’t be sued.? If not, you still can’t sue me… because… then… you used the knowledge without my permission…. and therefore I had no control of it and still can’t be sued.? We don’t need Indemnity granted by UF.? Rather, by our statements, they need to decide if they want to use the knowledge.? Then it’s automatic.? With my published/public indemnity use statement… I’m safe, and so are the others that published theirs. ? I’ve dealt with this many time when producing engineering designs for fortune 500 companies.? It always works out this way, and, in fact, ?there is a standard clause for it for preparing contracts (use it all the time).? The UF lawyers know this. ?Even if UF indemnifies us, they still take no risk unless they move forward and either try to license the technology or build products themselves.? If they just publish papers and the design (with the same indemnity clause specified for themselves) everyone in the chain is just fine. ? This isn’t really a big deal.? UF now needs to match what this design will become with what the lawyers can tolerate.? The rest of us have done everything we need to do.? This was probably too much on the subject and I apologize for the bandwidth…. ? ? ? Dr. William J. Schmidt - K9HZ J68HZ 8P6HK ZF2HZ PJ4/K9HZ VP5/K9HZ PJ2/K9HZ ? Owner - Operator Big Signal Ranch – K9ZC Staunton, Illinois ? Owner – Operator Villa Grand Piton – J68HZ Soufriere, St. Lucia W.I. Rent it: Like us on Facebook! ? Moderator – North American QRO Group at Groups.IO. ? email:? bill@... ? ? From: [email protected] [mailto:[email protected]] On Behalf Of Gordon Gibby ? Thanks to all.? ?Several of you have specifically requested that you be "indemnified".? ?That is exactly what you are NOT if I understand it right now; you might be, but it would depend on how certain Florida law etc is interpreted and you would likely need a lawyer to defend yourself.? ?If UF does what Mr. Dan D'Alesio says he can do, that will all go away and those who are identified as significant volunteers (I asked for up to 10) will be protected. |
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Wow -- thanks for that input.? ? Very helpful to me.? ?Several of you used that kind of language.? ?? Shands reequested?10 ventilators....I hope they don't have to be used....but THEY have sovereign immunity and a CAP on THEIR liability.? ?I demanded that I (and others who wish to be ) be protected EXPLICITLY.? ?If they don't provide that, I'll go put that statement of yours on EVERYTHING? i have done.? ? But right now they have done 1 million cycles of testing --- using a controller that I built for them in one day when they had no way to build one.? ?? This should have been taken care of many days ago but lack of an overall PLAN for this development (maybe they never thought we woud get this far?) prevented that.? ? The ventilator can grow to have patient-initiated breaths without too much trouble......if people who are building this have indemnification.? ? You never, ever, want to touch a patient (or have anyythng?to do with a design) unless you know you cannot be individually sued.?? My 2 cents worth.? ?Perhaps the lawyers will have this done by lunch tomorrow....I hope so, because these days are slipping by quickly.? ? It is now 12 hours since I spoke with a very reasonable and helpful UF lawyer, who is used to defending people like me for years. Gordon On Mon, Apr 6, 2020 at 11:26 PM K9HZ <bill@...> wrote:
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Unfortunately overnight, mulling this over after sending yet another list to the UF people, I realized a flaw in the "indemnity" plan many are using.
What happens when the company that takes your ideas, markets a bunch of gear, 80% of patients die (anyway, at present) who are on vents -- the company is wiped out in the first suit and GUESS WHO is the remaining deep pocket?? ? YOU.? ? ?Your indemnification clause, I think (correct me if I'm wrong) does you no good when the company has gone out of business. The lawyers have dug us a very deep hole here.? ?That's why I'm tryng to make UF simply take responsibility for designs tht their people write up and submit and use on patients --- after reveiwing material that volunteers did for them.? ? UF insures 50,000 persons locally.....and insured ME until January 10th.? ?Absurd but sometimes you have to ask people to do the right thing by volunteers.? ?I was on a board of a Food Bank once and a worker had a stroke and was permanently disabled -- and THEN we realized we had NO COVERAGE for the employee.? ?I felt terrible.? ? ?You take care of your own. The lawyer on the phone with me yesterday -- 30 minutes --- felt this would be EASY to deal with -- just some paper shuffling and some signatures.? ?Obviously it should have been dealt with DAYS AGO when I first brought it up to them....but it wasn't.? ?So now, they must deal with it or give up input from me.? ?Simple as that.? ?They get to make the choice? ?I lay out fair options:? you want free knowledge from an expert, you provide coverage.? ?You don't want my expertise, that's your right.? ?The ethical dilemma in in THEIR hands.? ? Meanwhile, i'm off to go purcahse parts and made orders this morning and spent HOURS on the code last night.? ?So don't give a load of crap, ok? Gordon |
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K9HZ
开云体育“What happens when the company that takes your ideas, markets a bunch of gear, 80% of patients die (anyway, at present) who are on vents -- the company is wiped out in the first suit and GUESS WHO is the remaining deep pocket?? ? YOU.? ? ?Your indemnification clause, I think (correct me if I'm wrong) does you no good when the company has gone out of business.” ? Sorry Gordon, you are just flat wrong here.? A company that “takes your ideas” had done that illegally/ without my concent, and therefore I have no accountability in the matter.? If this were not the case, average people would be getting sued for all sorts of silly stuff.? Doesn’t happen.? This is common every day legal stuff but usually seen at the corporate level.? Happens much more there.? Here is some reading my wife gave me: ? Definition Black’s Law Dictionary defines indemnity as: "A duty to make good any loss, damage, or liability incurred by another; or the right of an injured party to claim reimbursement for its loss, damage or liability from a person who has such a duty; or reimbursement or compensation for loss, damage, or liability in tort; especially, the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty." Black’s Law Dictionary, Seventh Edition. Points of Negotiation The main negotiation points?are:
Scope of Indemnification The scope of indemnification contains three sub-elements: (a) indemnify, (b) defend, and (c) hold harmless. Research suggests that the clause need only include indemnity. Courts have commonly interpreted "Indemnify" and "Hold Harmless" as synonymous, and usually interpret "Indemnity" as containing "Defense" as well. It is becoming less common to see "Hold Harmless," and including it will primarily add confusion and complexity in interpreting it's meaning. On the other hand, "Defense" remains?a common element in Indemnification clauses. 1.1?Indemnify - Duty to Reimburse Losses The requirement to indemnify is an obligation to compensate the covered party for any losses or liabilities incurred by the indemnified party. Typically, the claims relate to losses incurred by the indemnified party caused by the indemnitee or brought by third parties against the indemnitee. 1.2.?Defend - Duty to Provide a Defense The duty to defend is an obligation to provide a defense against a covered claim. The obligation is distinct from the duty to reimburse losses. First, the scope of the duty to defend may differ from the obligation to compensate for losses. “Because the duty to defend and the duty to indemnify are distinct obligations, the contract may impose a duty to defend the underlying claim even in the absence of a duty to indemnify.”?, 208 A.2d 61 (Del. 1965). In other words, the contractual duty to defend a claim may be broader than, and arise more often than, the duty to provide indemnity from a loss or judgment."?, D. Hull Youngblood, Jr and Peter N. Flocos,?, August 2010. Second, the duty may be triggered at different times. The requirement to defend is triggered as soon as a claim made. In?, the California Court of Appeals concluded, "[t]he contract between CH2M Hill and UDC called for a defense when any claim against UDC implicated CH2M Hill's performance of its role in the project. That defense obligation arose when the HOA alleged harm resulting from deficient work that was within the scope of the services for which UDC had retained CH2M Hill." In negotiation, potential indemnitors may seek to strike any duty to defend language. “There is no common law duty of a consultant to defend its client against third-party actions. That duty can only arise as a result of a contractual liability created through the indemnification clause of the contract. Since this is a contractual liability, it is excluded from overage pursuant to the contractual liability exclusion of the errors and omissions policy.”?, J. Kent Holland, J.D., ConstructionRisk, LLC. However, under California’s Code, defense obligations “are deemed included in every indemnity agreement unless the parties indicate otherwise.” , 187 P.3d 424, 44 Cal.4th 541 (2008). 1.3.?Hold Harmless - Bar to Claims In strict terms, the statement “to hold harmless” means to exonerate another from liability.??writes that "[a] hold harmless provision means that an organization is not liable for certain damages under an agreement. This clause effectively bars the party responsible for indemnification from bringing suit against the party being indemnified."?, January 2013. In the case of?, 56 Cal. Rptr. 3d 528 (Cal. Dist. Ct. App. 2007), the Court stated: "Are the words 'indemnify' and 'hold harmless synonymous?” No. One is offensive and the other is defensive-even though both contemplate third-party liability situations. ‘Indemnify’ is an offensive right – a sword – allowing an indemnitee to seek indemnification. ‘Hold harmless’ is defensive: The right not to be bothered by the other party itself seeking indemnification.” Nonetheless, the court concluded that the language of the indemnity term “should not be construed in an exculpatory manner.” However, common practice indicates that the terms “indemnify” and “hold harmless” are interchangeable. For example, Black's Law Dictionary treats them as synonyms. As a term of art, “hold harmless” is generally interpreted to mean to protect another against harm or damage. Most commentators propose the use of both terms. (See,?). For example, Sarah Swank counsels that it is "[g]enerally, it is advisable to include both indemnification and hold harmless language because of the variety of definitions of hold harmless." () However, the same argument – that the terms covers a broader range of outcome – can also be interpreted as creating uncertainty, and for this reason, others strongly advise against its use. (See,??and?,?. The clearest position is to exclude the term “hold harmless,” unless the parties intend to bar claims by the indemnitor, in which case the language should be clearly expressed to address such a bar to claims. 2. Nature of the Covered Claims The nature of the indemnified claims may cover third party and, more controversially, inter-party claims.? 2.1. Third Party Claims An indemnity is most commonly used to cover third party claims, whether brought by an individual, entity, or governmental authority. For example, a licensee of software can seek indemnification from the licensor in the event the licensee is sued by a third party for infringement. 2.2. Direct (Inter-party) Claims Historically, indemnities covered only third party claims. However, in recent years, and particularly in the United States, the scope has been expanded to include inter-party claims. IP Draughts suggests that the use of inter-party indemnities have been driven by the belief, in the US that: "if a winning party in contract litigation is to recover its legal costs, an indemnity is required.? This is because the courts in the US do not generally award a winning party its legal costs.? English law in this area is very different; usually the winning party is awarded some or all of its legal costs." , IP Draughts, June 29, 2011. However, a right to attorneys' fees can be covered with a separate without the need for an indemnity that may have other effects. The use of an inter-party indemnity is a balancing act: (a) one the one hand, an inter-party indemnity, combined with an exclusive remedy provision, may reduce the common law rights of the indemnified party (such as specific performance), but (b) on the other hand, the presence of an indemnity may eliminate the indemnifying party's need to prove causality between the breach and loss, and may obviate the requirement of mitigation. (However, case law indicates that mitigation may still be required.)? 3. Limitations 3.1 Time An indemnity may also include a time limit for filing an indemnity claim and may seek to reduce the statutory limitations. Depending on the jurisdiction, some courts have enforced such terms. (See:?Parra v. ADT Security Services Inc.,?Home Owners Insurance Co. v. ADT LLC). However, certain states, including Florida, Alabama, Idaho, Mississippi and South Dakota?have statutory provisions that void?contract terms attempting to shorten statutory limitation periods. (See: ,?Law360, New York (September 21, 2015). 3.2?Amount Typically, indemnities for third party claims are uncapped because the risk cannot be predicted. On the other, exposure for inter-party claims can usually be capped as the value of the transaction. ...puts it succinctly: "Think of a simple example: I bought a widget from you for $5; the widget was broken; I want my $5 back directly. I don’t need $1mm of coverage, I just need my $5 back." By contrast, a third party claim for product liability may not be limited to size of the deal.? ,? ,?Member (Partner) at Outside GC LLC 3.3?Statutory Limitations on Indemnity for Negligence Regulated businesses providing essential services Construction contracts 4. Overbroad Clauses Excessively broad language, often the result of careless drafting or over-reaching by one party may seek to shift liability where the indemnifying party is not at fault. For example: "any use of the licensed products." "any liability arising out of the performance of services under this agreement." "any liability?arising out of or connected with this agreement." ? ? ? Dr. William J. Schmidt - K9HZ J68HZ 8P6HK ZF2HZ PJ4/K9HZ VP5/K9HZ PJ2/K9HZ ? Owner - Operator Big Signal Ranch – K9ZC Staunton, Illinois ? Owner – Operator Villa Grand Piton – J68HZ Soufriere, St. Lucia W.I. Rent it: Like us on Facebook! ? Moderator – North American QRO Group at Groups.IO. ? email:? bill@... ? ? From: [email protected] [mailto:[email protected]] On Behalf Of Gordon Gibby ? Unfortunately overnight, mulling this over after sending yet another list to the UF people, I realized a flaw in the "indemnity" plan many are using. |
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Thank you Dr. Schmidt -- I see that I didn't apparently explain that clearly enough..
The scenario is NOT a company that used your ideas without your permission.? [which is what you responded about.] The scenario is a company that HAD your permission, PROVIDED you with indemnification --- but then was crushed by the lawsuits and no longer exists. What is your protection then? Perhaps I miss something....but I think YOU would be the remaining "deep pocket." I'll look forward to your further education of me -- but also see the GOOD NEWS thaat I have . Gordon |
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K9HZ
开云体育The courts then protect you because you had a legally binding contract with the company that went into litigation.? You are still good.? It has happened to me more than once. ? ? Dr. William J. Schmidt - K9HZ J68HZ 8P6HK ZF2HZ PJ4/K9HZ VP5/K9HZ PJ2/K9HZ ? Owner - Operator Big Signal Ranch – K9ZC Staunton, Illinois ? Owner – Operator Villa Grand Piton – J68HZ Soufriere, St. Lucia W.I. Rent it: Like us on Facebook! ? Moderator – North American QRO Group at Groups.IO. ? email:? bill@... ? ? From: [email protected] [mailto:[email protected]] On Behalf Of Gordon Gibby ? Thank you Dr. Schmidt -- I see that I didn't apparently explain that clearly enough.. |