Dallas Bar Association
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February 2023 Volume 48 Number 2
Focus | IP/Science & Technology Law
Hartline Barger Celebrates 30 Years of Giving BY MICHELLE ALDEN
As the new year gets underway, steadfast DVAP supporter Hartline Barger LLP has stepped up once again with a donation of $30,500—the largest contribution to this year’s Equal Access to Justice Campaign to date! The firm has a long history of supporting pro bono in Dallas through the Campaign. Including this gift, the firm has donated more than $215,875 to legal aid since 2007. Three decades ago, seven lawyers left a big city law firm and set out on their own. Their goal was to create a firm full of sharp and talented lawyers willing to take on any case, with a commitment to established principles. As a veteran, C. Vernon Hartline, Jr. lived by seven core values: Loyalty, Duty, Respect, Selfless Service, Honor, Integrity, and Courage. For nearly 30 years, Hartline Barger has remained loyal to these tenets, which is why it supports programs, like DVAP, that foster the same values. “’With justice for all’ is a phrase we repeat every time we say the pledge of allegiance. Securing equal access to justice is a cause that was close to the heart of Vernon Hartline, and remains a cause that this firm continues
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C. Vernon Hartline, Jr.
to support. The right to justice is a basic right belonging to all. It is at the foundation of our system of government,” said Richard Crews, Managing Partner. Hartline Barger focuses on general civil litigation defense and trials. The firm’s services are wide-ranging. They focus on product liability litigation, personal injury defense, commercial litigation, construction litigation, and labor & employment litigation, among other areas.
“While it is a privilege for us to practice law, we do not believe it should be a privilege to have access to quality legal representation. Unfortunately, this is a reality for much of society. The fact that we represent successful businesses makes it all the more important that we give back to those who lack such financial wherewithal,” said Jeffrey Patterson, partner in Dallas. Access to legal services continues to be fundamentally important as people face dire economic straits. DVAP continues its weekly virtual intake clinics every Thursday, along with in-person and virtual Veterans Clinics, and in-person clinics in South Dallas and West Dallas. One recent applicant, “Connie,” came to DVAP seeking help. She had two old criminal charges on her record, which posed an obstacle to obtaining employment. The charges were eligible for expunction. Dedicated volunteer attorney David Green accepted the case and worked on it even while he was deployed in the Middle East as a Judge Advocate General (JAG). David completed the case remotely, and Connie was able to move forward with her job search, making all the difference in her future prospects.
The justice gap in Dallas County is daunting. In a country based on justice for all and access to our court system, over 25 percent of Dallas County residents live near the poverty level, and 42 percent have slim hope of being able to afford an attorney. With annual poverty incomes of $34,687 for a family of four, justice is a luxury for low- and moderateincome families. As Michelle Sheppard, Chief Operating Officer, stated, “We are well acquainted with the impact that DVAP has on the underrepresented in North Texas; its efforts towards mitigating the staggering justice gap are unparalleled. We know our contribution helps put resources into the right hands.” DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallas volunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Intellectual Property/Science & Technology Law
Best Contract Provisions When Hiring App/Software Developers BY LEIZA DOLGHIH
In 2011, Marc Andreessen, a co-founder of Netscape, famously wrote that “software is eating the world.” What he meant, of course, was that software was going to disrupt traditional industries. He was right. While companies continue to offer traditional goods and services, many business models now rely on the use of applications and software programs to accommodate consumer access to those goods and services. These platforms also allow companies to gather and analyze consumer behavior data. Airlines, coffee shops, gyms, and myriad other companies have been rolling out their own applications to better connect with consumers. Companies often have to hire outside developers to create custom applications or software programs. In the last few years, lawsuits involving allegations of trade secret theft and intellectual property theft between companies and their hired developers have been on the rise. In some cases, companies have claimed that their developers took confidential information they learned while developing an application and used it to create a competing business, or shared it with competitors. In other cases, developers accused companies of taking the developers’ software and re-creating it in-
house in order to avoid paying the developers’ royalties or fees. This article goes over five best contract provisions for those companies that are considering hiring outside developers or software engineers to create a custom application or software for them.
Confidentiality
A mutual confidentiality clause that states that a receiving party agrees not to disclose or use the confidential information belonging to the disclosing party is absolutely necessary if the parties intend to exchange confidential information, such as the business processes of the hiring company or the work processes of the developer company. Moreover, the confidentiality clause needs to specifically state that the receiving party must ensure that any of its employees who work on the company’s project must also sign a confidentiality agreement.
Non-Competition/Moonlighting
A company should ensure that the developers working for it are not simultaneously working for a competitor or engaging in “side hustles” that may take their focus away from
the project. In addition to spelling out these restrictions in writing, the company should also include a clear timetable for phases of the project and competition deadlines.
Intellectual Property Ownership
The software developed as a result of the project is the property of the customer, and the contract should clearly state that. In particular, companies should make sure to include the following provisions in their agreements: (1) that the source code belongs to the company, which means the company can use or modify it in any way it sees fit; (2) if the project is terminated mid-way, the company owns whatever code has been completed so far; (3) that any materials created during the development, such as wireframes, designs, or plans, are to be destroyed; and (4) that employees of the developer company also sign agreements by which they assign all of their intellectual property rights in the project to the hiring company.
Dispute Resolution Process
This clause is often addressed by the parties as an afterthought. However, it becomes very important if a conflict arises. Therefore,
the parties should negotiate up front whether they will resolve their disputes in court (and if so, where) or via arbitration; whether they will waive the right to a jury trial; and, whether they will waive any defenses to the venue clause.
Acceptance Testing
The software development process is not linear, and a company hiring an outside developer should make sure that it has an internal or an external expert who can determine how acceptance testing will be implemented. Acceptance testing is a quality assurance (QA) process that determines to what degree an application meets the end users’ approval. Depending on the organization, acceptance testing might take the form of beta testing, application testing, field testing, or end-user testing. While not all details of acceptance testing can be described in the contract, the general framework and the deadlines associated with such testing should be clearly set out in the contract in order to avoid disputes over whether the software was comHN pleted on a timely basis.
Leiza Dolghih is the founder of Dolghih Law Group PLLC and is CoChair of the DBA Publications Committee. She can be reached at leiza@dlg-legal.com.
Inside 6
DBA Board Elects Chair and Vice Chair
10 USPTO Ushers in the Last Round of Changes Under the TMA 13 Growth, Legal Services, and History-Making Women 18 Protecting Trademark Rights in Virtual Spaces
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