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What are the most effective patent licensing models and agreements?

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Patent licensing is a way of transferring the rights to use, make, or sell an invention from the patent owner to another party. It can be a powerful tool for product innovation, as it can enable access to new technologies, markets, and revenue streams. However, not all patent licensing models and agreements are equally effective. In this article, you will learn about some of the most common and successful types of patent licensing, and how to negotiate and manage them.

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Olivier Corticchiato

Intellectual Property Consulting - ex-Nestlé, ex-Procter & Gamble

1 Exclusive vs. non-exclusive licensing

One of the first decisions to make when licensing a patent is whether to grant an exclusive or a non-exclusive license. An exclusive license means that only the licensee can use the patented invention, and the licensor cannot license it to anyone else or use it themselves. A non-exclusive license means that the licensor can grant multiple licenses to different parties, and retain the right to use the invention as well. Exclusive licenses tend to be more expensive and risky, but they can also offer more control and competitive advantage to the licensee. Non-exclusive licenses are cheaper and less restrictive, but they can also create more competition and uncertainty for the licensee.

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Stephen Carter

Intellectual Property strategy & management for technology start-ups and scale-ups | 'Investment ready' IP strategy aligned with business goals | Patent Attorney | IP Strategy | IP protection | IP audits
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The choice between exclusive and non-exclusive, along with other decisions about the nature / scope of a licence, should be driven by commercial considerations. Start by clearly setting out what it is, from a commercial perspective, you want to achieve through licensing your patent(s). Is it purely about revenue generation (for example, monetising otherwise redundant patents in your portfolio)? Is it to facilitate growth in new markets (through geographically limited licences)? Is to to exploit your technology in new verticals, or to form strategic partnerships, for example? And remember that exclusivity does not have to be all or nothing - it can be exclusive in specific geographies or sectors for example.

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2 Cross-licensing and patent pools

Another way of licensing patents is through cross-licensing or patent pools. Cross-licensing is when two or more parties agree to license their patents to each other, usually to avoid litigation or to access complementary technologies. Patent pools are when multiple patent owners agree to license their patents to a third party, usually a consortium or an intermediary, who then licenses them to others. Cross-licensing and patent pools can reduce transaction costs, increase interoperability, and foster innovation. However, they can also raise antitrust concerns, dilute the value of individual patents, and create coordination problems.

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3 Royalty-based vs. lump-sum licensing

A key aspect of any patent licensing agreement is the payment structure. There are two main types of payment structures: royalty-based and lump-sum. Royalty-based licensing means that the licensee pays a percentage of the sales or profits generated by the patented invention, usually on a periodic basis. Lump-sum licensing means that the licensee pays a fixed amount of money upfront, regardless of the performance of the invention. Royalty-based licensing can align the incentives of the licensor and the licensee, and provide a steady income stream for the licensor. However, it can also be difficult to monitor, enforce, and audit. Lump-sum licensing can simplify the transaction, avoid disputes, and reduce the risk for the licensor. However, it can also undervalue or overvalue the invention, and shift the risk to the licensee.

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4 Licensing terms and conditions

In addition to the payment structure, a patent licensing agreement must also include several other essential terms and conditions. These include the scope of the license, such as the rights and obligations of both parties and any geographic, temporal, or field-of-use limitations. The quality of the patent should be specified, including its validity, enforceability, and novelty, as well as warranties and indemnities from both licensor and licensee. Furthermore, the termination and renewal of the license must be outlined, including grounds for terminating or renewing the license and any consequences or remedies for breach or default. Finally, dispute resolution and arbitration should be specified, including methods and venues for resolving disputes and roles of arbitrators or mediators.

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5 Licensing best practices

For a successful and effective patent licensing, both licensors and licensees should conduct a thorough patent landscape analysis to understand the market potential, competitive environment, and legal status of the patent and its related patents. It is also important to select a licensing model and a partner that match their needs and expectations, as well as negotiate and draft a clear and comprehensive agreement. This agreement should cover all the relevant terms and conditions, while also reflecting the interests and intentions of both parties. Moreover, it is necessary to manage and monitor the performance and compliance of the license, and communicate and collaborate with the other party regularly to ensure a smooth and beneficial relationship.

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Olivier Corticchiato

Intellectual Property Consulting - ex-Nestlé, ex-Procter & Gamble
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Simple, understandable and fair licensing clauses are key. Fairness means that both parties (licensor and licensee) must find a business benefit at the licensing arrangement. Exclusivity does not come for free. The access to a technology (though IP licensing) is only worth the part of the business / market that it enables.

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6 Here’s what else to consider

This is a space to share examples, stories, or insights that don’t fit into any of the previous sections. What else would you like to add?

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What are the most effective patent licensing models and agreements?

1

2

3

4

5

6

1 Exclusive vs. non-exclusive licensing

2 Cross-licensing and patent pools

3 Royalty-based vs. lump-sum licensing

4 Licensing terms and conditions

5 Licensing best practices

6 Here’s what else to consider

Product Innovation

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What are the most effective patent licensing models and agreements?

1

2

3

4

5

6

1 Exclusive vs. non-exclusive licensing

2 Cross-licensing and patent pools

3 Royalty-based vs. lump-sum licensing

4 Licensing terms and conditions

5 Licensing best practices

6 Here’s what else to consider

Product Innovation

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