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IP LICENSING
IP LICENSING
What is an IP licence?
A licence is a permission to do something that,
without the licence, would be an infringement
of IP. The person granting the licence is
usually called the licensor, and the person
receiving the licence is usually called the
licensee. (There may be more than one
licensor or more than one licensee in a licence
agreement).
The terms and conditions on which IP is licensed are
very varied
The licensor and licensee usually agree those terms
and conditions by negotiation
The outcome of those negotiations will depend on the
relative bargaining power of each side.
You are more likely to obtain favourable terms if you
own IP which protects a significant and distinctive
innovation or work than if the potential licensee has
several equally attractive alternatives.
Why might I license my IP or take a licence of
IP?
Sharing Risk: Where a licensor licenses the
right to manufacture and sell products, the
licensor receives revenues from that licensing
but does not take the risk of manufacturing,
promoting and selling those products. On the
other hand, the licensee has the right to use the
IP without the expense and risk of the research
and the costs of developing the product
Revenue Generation: An owner of IP may
commercialise the IP itself and may obtain
additional income by licensing the IP to
someone else to commercialise it in a different
field.
Increasing Market Penetration: An owner of IP
may license another business to sell in
territories that the owner cannot cover.
Granting or taking a licence is not always
appropriate. For instance:
A business, which has the ability to commercialise
its own IP, may better achieve its objectives by
keeping that IP to itself.
Businesses should be wary of licensing their IP in
circumstances where the value of that IP may be
diminished.
The prospective licensor may want to charge
royalties that are too high and may restrict the
growth of the business.
The IP to be licensed may be too weak – if a
competitor could work round it and take away
market share, it may not be worth investing in
a licence.
The IP to be licensed may not be valid, for
example where a patent is open to challenge or
because the prospective licensor does not own
and does not have the right to license the IP.
Elements of Licensing Agreements
Licence terms:- The terms of any licence should
always be recorded in writing and, until the
licence agreement has been signed, all
correspondence and negotiations about the terms
of the licence should be expressed to be ‘subject
to contract’, i.e. not binding. Recording the terms
in writing involves being completely clear about
what both licensor and licensee want to achieve
and have agreed. The act of reducing an oral
agreement to writing will often reveal
misunderstandings which need to be resolved
before the licence agreement is signed.
What IP are you licensing ?
This could be a patent or material which is
protected by copyright or a trade mark, or you
may, for instance, be allowing the public or
subscribers to download a wide range of
materials of their choosing from your website.
You may be licensing more than one sort of IP;
for instance some software and your logo or
trade mark. If that is the case, you may want
different rights and restrictions to apply to the
different sorts of IP
Who may use the IP?
The licensee may be a company, a group of
companies, another type of corporate body, an
individual or a collection of individuals, such as
an English partnership.
However, some licences can cover entire
enterprises and bind not only the company but
also the users of its products
If you are granting a licence to a company make
sure you quote its registered number in the
licence agreement
How IP may be used
Exclusive – only the person who is
granted a licence, the licensee, can
use the IP. The licensor is not entitled
to use the IP.
Sole – only the IP owner and licensee
can use the IP.
Non-exclusive – the IP owner may
use and license to more than one
licensee.
Duration and termination
What the circumstances for termination might
be, for instance a change of control or a failure
to meet sales targets; breach of conditions or
insolvency?
the licence indefinite or limited by time? You
will need to check the duration of the IP. For
example, a European patent lasts for a maximum
of twenty years whereas a trade mark can last for
perpetuity so long as it is periodically renewed
Governing law and disputes
If entering into a licence with a party in a
different legal jurisdiction you will need to
determine which country’s laws should apply.
Do you have a mechanism for resolving
disputes?
When licensing abroad it is advisable to also
consider the cultural as well as legal
characteristics of your partners.
THANK YOU FOR YOUR TIME
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