Wednesday, July 22, 2009

Licensor's Reservation of the "Sole" Right to License Did Not Deprive Licensee of Standing to Sue

Defendant's motion to dismiss a licensee for lack of standing to sue as a co-plaintiff was denied even though the license reserved to the licensor "the sole right and license including the right to sublicense others." "Even if some courts have used the term 'sole license' to refer to the situation in which a licensor happens to have issued only one license as opposed to agreeing to limit itself to the one license, this does not mean that is the only possible meaning of the term 'sole.'. . . [I]t is not the name but the legal effect of the provisions that counts. This, again, is a matter of contract interpretation and, without making a finding, the Court observes that the use of 'sole' in the context of 'sole right and license' in [plaintiffs' agreement] appears at least as supportive, if not more, of [plaintiff's] position that the Agreement is an exclusive license as of [defendant's] position that it is not."

Newfrey, LLC et al v. Burnex Corp., 2-07-cv-13029 (MIED July 20, 2009, Memorandum & Order) (Cohn, J.).

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