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“For clarity” clause in patent license agreement saves the day for accused infringer

In a patent-infringement dispute, a federal district court relied on a “For clarity” provision in a license agreement to resolve an ambiguity in the agree­ment license grant: The court concluded that the license grant did indeed extend to certain patents in dispute; consequently, the court granted the accused infrin­ger’s motion for summary judgment. See TQ Delta, LLC v. Adtran, Inc, No. 1:14-cv-00954-RGA, slip op. at part I and part III-A (D. Del. May 21, 2018).

(Hat tip: John Paul, Brian Kacedon, Cecilia Sanabria, and Sonja Sahlsten, Clarifying Provisions Avoid Ambiguity in Patent License Agreement, in a Licensing Executives Society USA/Canada electronic newsletter, Sept. 26, 2018.)

A similar term, for the avoidance of doubt, seems to be used frequently in Brit­ish contracts.  Ken Adams once described the term as “a turkey,” saying, “How’s this for a categorical statement: Never use for the avoidance of doubt.”  (Ken’s injunction illustrates something I’ve said from time to timeAll categorical statements are bad, including this one.)

Willem Wiggers was more restrained on this subject; at his WeAgree contract-drafting site, he said that the term for the avoidance of doubt should only be used in limited circumstances.

My own view is that drafters should use terms such as for the avoidance of doubt — or in case of doubt, or for clarity — when they want their client’s litigation counsel to have a “sound bite” to use in a lawsuit or arbitration, e.g., by quo­ting it in a brief or showing it on a PowerPoint slide or poster board. As seen in the TQ Delta case, using such a term can pay big dividends.

(The Common Draft handbook of contract terms includes a definition of the term for the avoidance of doubt, stating that the term signifies the parties’ agreed guidance concerning the intended meaning of a provision.)