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"Fyi, for anyone that has paid for a license. The fact that the copyright is dead does not necessarily mean licensing contracts are also void. " Well, this is

"Fyi, for anyone that has paid for a license. The fact that the copyright is dead does not necessarily mean licensing contracts are also void. " Well, this is true for copyrights, but 100% false for patents. You cannot collect royalties for expired patents, for example. Attempts to do so by contract are void.

fncypants 11y ago
But you can keep royalties received on patents that are later found to be invalid, which I think is what the parent is trying to say.
- sandworm101 11y ago
  Yes. And if you have an agreement that makes no mention of the patent, that just says "I will give you money every time I sell a product" then you may still have to shell out long after the patent has expired. Everyone is free to draft contracts between parties going well beyond the limits of IP law.
  - shard 11y ago
    That means the payer is getting something else besides the right to use the patent. So whatever product or service the payee is providing, they have to continue providing it even though their patent is invalid. That doesnt seem like such a problem, except for the fact that when the contract was drafted, there may have been less competition for the service the payee offered.
  - DannyBee 11y ago
    You have to actually get something in return for this to be a valid contract. If it's not IP rights, what is it? Because otherwise, i'd just breach the contract. In fact, this is what has happened in numerous cases.
- DannyBee 11y ago
  Sure, but actually, most patent agreements that get signed nowadays include clauses to deal with this :)
sandworm101 11y ago
You can via contract. If I invent a new super-viagra, I can ask a drug company to pay me 1$ for each pill they sell in perpetuity. That contractual obligation could survive the patent expiring and maybe a drug company would take that deal in exchange for them being the first on the market.
- DannyBee 11y ago
  100% false if these are found to be patent royalties. This was most recently reaffirmed in June when the supreme court denied cert in Kimble v. Marvel. This rule has been in place since Brulotte et al. v. Thys Co., which addressed this question square on. Past that you are basically saying "you can try to contract around and pretend it's not patent royalties" This is, of course, true in theory, but this doesn't really work in practice. This is why patent trolls and others don't actually do it. Because a judge will look at you sideways, and then just let me out of the agreement or give you no damages when i breach it.
  - sandworm101 11y ago
    Which is why one must be careful in wording agreements to make sure they are license agreements (renting a thing) rather than forbearance (promise not to sue). Now if I were working for someone who had a shady possibly invalid copyright, I might attempt to draft a forbearance-style agreement. I've been hunting around for HappyBirthday agreements to check for this but haven't found any recent actual documents, just summaries.

fncypants 11y ago

But you can keep royalties received on patents that are later found to be invalid, which I think is what the parent is trying to say.

sandworm101 11y ago
Yes. And if you have an agreement that makes no mention of the patent, that just says "I will give you money every time I sell a product" then you may still have to shell out long after the patent has expired. Everyone is free to draft contracts between parties going well beyond the limits of IP law.
- shard 11y ago
  That means the payer is getting something else besides the right to use the patent. So whatever product or service the payee is providing, they have to continue providing it even though their patent is invalid. That doesnt seem like such a problem, except for the fact that when the contract was drafted, there may have been less competition for the service the payee offered.
- DannyBee 11y ago
  You have to actually get something in return for this to be a valid contract. If it's not IP rights, what is it? Because otherwise, i'd just breach the contract. In fact, this is what has happened in numerous cases.
DannyBee 11y ago
Sure, but actually, most patent agreements that get signed nowadays include clauses to deal with this :)

sandworm101 11y ago

You can via contract. If I invent a new super-viagra, I can ask a drug company to pay me 1$ for each pill they sell in perpetuity. That contractual obligation could survive the patent expiring and maybe a drug company would take that deal in exchange for them being the first on the market.

DannyBee 11y ago
100% false if these are found to be patent royalties. This was most recently reaffirmed in June when the supreme court denied cert in Kimble v. Marvel. This rule has been in place since Brulotte et al. v. Thys Co., which addressed this question square on. Past that you are basically saying "you can try to contract around and pretend it's not patent royalties" This is, of course, true in theory, but this doesn't really work in practice. This is why patent trolls and others don't actually do it. Because a judge will look at you sideways, and then just let me out of the agreement or give you no damages when i breach it.
- sandworm101 11y ago
  Which is why one must be careful in wording agreements to make sure they are license agreements (renting a thing) rather than forbearance (promise not to sue). Now if I were working for someone who had a shady possibly invalid copyright, I might attempt to draft a forbearance-style agreement. I've been hunting around for HappyBirthday agreements to check for this but haven't found any recent actual documents, just summaries.