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 time: All categorical statements are bad, including this one.)
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.)