I love it when after writing about a usage and describing it as awkward, I’m able to demonstrate that it’s not only awkward, it can also lead to fights. Today’s example of that is my December 2015 post about how to express termination with prior notice (here). Today a reader emailed me as follows: Suppose a termination provision of a contract reads, … Read More
Glenn West blogs. He has also grown a hipster beard and moved to Brooklyn. Actually, that last bit isn’t true. But he did recently contribute this post to Weil Gotshal’s Global Private Equity Watch blog. It’s about the recent decision of the Delaware Court of Chancery in FdG Logistics LLC v. A&R Logistics Holdings, Inc., to the effect that a disclaimer of reliance … Read More
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
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
I’ve written occasionally about principles of interpretation (also referred to as “canons of construction”) used by courts. In this post I say that “they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent.” I said pretty much the same thing in this recent tweet: People use the phrase "canon of construction" because it sounds grander than "convenient fiction". … Read More
In this comment to a recent post, longtime reader Chris Lemens mentions what he refers to as “no-contest” provisions. That sent me scurrying to the Bantar Gebang trash dump EDGAR, where I found the following examples (emphasis added): Each party hereto agrees and covenants that it will not contest the validity or enforceability of any exculpatory provision of this agreement … Read More
Today I spent some time considering section 365(n) of the U.S. Bankruptcy Code. If in bankruptcy the debtor or trustee rejects a license, under section 365(n) a licensee can elect to retain its rights to the licensed intellectual property. For more on that, see this post by Bob Eisenbach on his In the (Red) blog. (You might recall that Bob joined me … Read More
A standard feature of commercial contracts is a section—usually entitled “Insurance”—that specifies the insurance coverage that one or more parties are required to maintain. I’m regularly surprised at how contract parties are willing to throw something together without input from insurers. For an antidote to that sort of improvised approach, see this post by Mark Anderson on IP Draughts.
Yesterday I revisited in this post use of sole and exclusive in granting language in a license agreement. Well, we’re not done, because yesterday I saw the following in a contract: Acme hereby grants Widgetco an irrevocable, worldwide, paid up, royalty-free, exclusive license … That caused me to wonder about paid-up (it’s a phrasal adjective, so I’d use a hyphen) and … Read More
