Revisiting “Sole” and “Exclusive” Yet Again

Recently I expressed to a group of patent lawyers my reluctance to use sole and exclusive in granting language to indicate that the licensor retains or doesn’t retain, respectively, the right to use the intellectual property.

But on revisiting MSCD 13.606–10 and this 2012 post, I realized that I haven’t yet offered suitable alternatives. So here goes:

In contracts on EDGAR, the most popular alternative to sole is exclusive (except as to the Licensor). But given the inconsistency among commentators regarding the meaning of sole (see MSCD and the 2012 post), I suggest that it would be prudent to be clearer still and say exclusive (subject to the Licensor’s continued right to use X).

Instead of exclusive, you could say exclusive (even as to the Licensor). But even serves to emphasize something surprising or extreme. Contracts aren’t the place for emphasis, and this use of even involves nothing surprising or extreme. So I say the heck with even—use instead exclusive (including as to the Licensor).

Any thoughts?

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.