Consider the following: No Implied Licenses. Except as expressly set forth in this Agreement, neither Party grants any license under its intellectual property rights to the other Party. First, let consider what an implied license is. Here’s what Melvin F. Jager, Licensing Law Handbook § 1:25 (2015) has to say (citation omitted): Under this implied license theory, the unrestricted sale of a patented … Read More
If a contract provision isn’t the focus of the deal, there’s a good chance people won’t have given it much thought, so there’s a good chance that it doesn’t make sense. Consider the notion of licensee liability for a sublicensee’s misconduct. Straightforward, right? But how do you express it? I scattered some roach bait traps on EDGAR and looked at (and then … Read More
We’ve had occasion to explore the risk you run when a contract refers to itself in confusing ways. See this post about herein; see this post about hereunder; see this post about except as provided below. Well, if a lesson is worth learning three times, it’s worth learning yet again. So thanks to relentless lead generator Steven Sholk, I present you, … Read More
Today I saw the following tweet: Amazon Web Services terms and conditions now include a zombie clause. pic.twitter.com/7D6gAKeDLu /cc @NeilDavidson — Software Tools (@softwareverify) February 9, 2016 This reminded me of an experiment in London in which the terms of use of a WiFi hotspot promised free WiFi but only if “the recipient agreed to assign their first born child to … Read More
I’m no fan of saying in a contract that certain provisions survive termination. See MSCD 13.642 and this 2006 post. Heck, even the Delaware Chancery Court noticed that. But if simple survival isn’t enough, you can layer futility upon futility. At the suggestion of a reader, I dug up the following: Those provisions that by their nature are intended to … Read More
You might have seen my post earlier today about my book The Structure of M&A Contracts. In writing it, I was reminded that a few years ago I did a public seminar based on the book. And I did a seminar at a law firm. Heck, I even did a webcast. But I quickly dropped the seminars. What’s great about my “Drafting … Read More
Remember my M&A book? You know, The Structure of M&A Contracts? Yeah, it slips my mind too. Because it’s available only in a proprietary ebook format, and because buying it can be a hassle, it sometimes feels as if it was never published. But it turns out that people are in fact buying it, and reading it. Recently I heard from some … Read More
The January/February 2016 issue of Landslide, the magazine of the ABA Section of Intellectual Property Law, contains my article Granting Language in Patent License Agreements: An Analysis of Usages. I recommend the PDF version, here, but there’s also the online version, here. (The PDF provided by Landslide was unsatisfactory, so the PDF is based on my manuscript. The only difference is … Read More
MSCD 8.56 suggests that you might want to use the phrase reasonable efforts as a defined term: Even though the phrase reasonable efforts doesn’t pose the same risk of confusion as best efforts, you might want to use it as a defined term. Doing so could assist a court and might help the parties better understand the implications of using reasonable efforts. And in … Read More
If you’ve been reading this blog for a while, you probably don’t need any further warnings about confusion caused by commas. Well, you’re getting one anyway. A reader told me about this post on the blog of the Electronic Frontier Foundation. It’s about last fall’s Ninth Circuit opinion in Hamdan. It involves the language of a statute, not a contract, but … Read More
