Giving (Or Getting) More Than You Thought

Submitted by patentadmin on Fri, 07/03/2009 - 16:59

Patent licenses typically allow the licensee to “make, use and sell” the patented product. Often, they are silent as to the right of the licensee to have the licensed product made by a third party. In such a circumstance, does the license also include the right to “have made,” i.e. the right of the licensee to use third-party contractors to manufacture licensed products for its own use?

Thanks to the CAFC, we now know that the answer is YES. Corebrace LLC v. Star Seismic LLC. Even when a license prohibits sublicensing, “have made” rights are granted unless they are expressly prohibited.

THE LESSON TO BE LEARNED: Unless expressly prohibited, the right to “make” includes the right to “have made.”

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