Royalties varied as sales of articles continue. Royalties in descending scale after certain date. Remission of royalties in the case of bad debts. resulting in favour of the licensor or if and whenever it shall be ascertained to the proper satisfaction of the licensee that the alleged infringer or infringers had done nothing to justify any such proceedings being taken against him or them but the licensee shall in the meantime keep due account of all royalties so suspended. [(a) PROVIDED ALSO that the licensee in addition to requiring the licensor to take any such proceedings as aforesaid shall as a condition precedent to the commencement thereof furnish the licensor with such particulars of and information as to the alleged infringement as should establish a reasonable presumption as to the fact of such infringement.] 15. Pay to the licensor half-yearly on every day of and- day of - during the said term the following royalties namely:-For the first 100 articles aforesaid sold by the per cent. on the gross proceeds of the sale thereof licensees and for the next 400 articles aforesaid so sold thereof. day of 16. PROVIDED ALWAYS that from and after the 1890 the said royalties shall be reduced in amount yearly so that for the year 1891 the royalties shall be at rates 5 per cent. less than those for the year 1890 and for each of the 2nd 3rd and remaining years during the continuance of this licence the royalties shall be at rates 5 per cent. less than those in the preceding year. 17 (6). PROVIDED ALWAYS that every sum not being less than £- which may be owing to the licensee from any single person firm or company or persons jointly as the price of articles sold by him in any half-year shall be treated in the accounts therefor as having been then actually paid to him (c) and every sum of whatever amount which at the end of some half-year aforesaid shall have been owing to the licensee as aforesaid for calendar months or more shall unless the licensee shall show to the satisfaction of the licensor that he had taken all reasonable means to recover the said sum be treated in the accounts for that half-year as having been actually paid to him but except as aforesaid and subject to his accounting for any moneys as and when received by him (if at all) in respect of any debts owing to him as aforesaid no debts at the end of any half-year remaining owing to the licensee for (a) This proviso is to be inserted where the costs of the proceedings are to be borne by the licensor (ante, p. 206). (b) See ante, p. 204, as to this proviso, which will suit the case of the royalties being by way of a share of the net profits or sale monies, but can easily be adapted for the case of other kinds of royalties payable in respect of sales. (c) This is, of course, to discourage credit being given for large amounts. articles sold by him as aforesaid shall be treated in such accounts as moneys actually received by him (ɗ). void. 18 (e). PROVIDED ALWAYS that if the said letters patent shall Payments to from any cause become wholly or as to some material part of the cease or (pending apsaid invention void the unpaid balance (if any) not then already peal) to be due of the said purchase-money shall cease to be payable either at suspended if all and in that case this licence shall absolutely determine without patent become prejudice to the payment of all moneys then already due or to any right of action by either party then accrued hereunder or (in the event of a successful appeal from any judgment revoking the said letters patent) during the period for which such judgment shall remain in force and in the event of such an appeal the right of the licensors to payment of the said balance shall revive and the same. or so much thereof as shall have fallen due on cach half-yearly day (if any) aforesaid within the same period shall become payable at the date of the said judgment on appeal. PROVIDED But final ALWAYS that the final cesser of payment as aforesaid shall be cesser to be deemed satisfaction in full to the licensee of any claim by him for faction of damages or compensation by reason of the said letters patent damages. having become void as aforesaid. deemed satis trustees pending pro patent. 19 (f). PROVIDED ALWAYS that pending any proceedings that Royalties to may be undertaken by any third party in order to obtain the be paid to revocation of the said letters patent the licensee shall pay all bus royalties for the time being due hereunder to A. B. of &c. and ceedings for C. D. of &c. or such other persons as the parties hereto may select revocation of who shall retain all sums so paid to them until final judgment whether on appeal or otherwise shall have been delivered in respect of the said proceedings and in case such judgment shall be in favour of the licensor shall pay the said sums to the licensor but in case it shall be in revocation of the said letters patent shall pay the same to the licensee subject as to the said sums in either case to the satisfaction thereout of the costs and expenses of and attending the trusts in respect thereof as aforesaid (g). 20 (). PROVIDED ALWAYS that if from any cause whatever not attributable to the licensee the licensor shall for any one half-year become unable to and in fact not supply to the licensee the said (d) As to when a sale of goods is completed, see Benjamin on Sales (Chapter on "Delivery") and Williams, P. P. (Chapter on " Alienation of Choses in Possession "). (e) See Licence VII., post, p. 266, in which such a clause appears, and note (d) thereto. (ƒ) Ante, p. 206. (g) It may be intended, however, only to provide for the return to a licensee, in case the patent should be revoked, of some part of his premium (if any) or such a sum as will make up to him what he has not succeeded in recovering by virtue of the Average Clause. The above clause can, of course, be easily modified to make such a provision. (h) Ante, p. 207. Cesser of rent fails to supply material as while licensor covenanted. Delivery of articles by licensee to his selling sublicensees to be deemed sales to them. Commutation of royalties. Patent mark to be used. material to the amount of tons at least the rent shall not become payable for such half-year but this proviso shall not affect the obligation of the licensee to pay royalties as aforesaid on the amount of [the substance manufactured] in the same half-year actually manufactured by him subject to the operation of Clause (i). 21 (j). All articles delivered or sent by the licensee to any of his sub-licensees according to the terms of their respective sublicences shall for the purposes of this licence be considered as having been actually sold by the licensee at the respective times when the same shall have left his said works in the possession of or to be delivered to such sub-licensees respectively and the licensee shall accordingly pay in respect of such articles the royalties provided by Clause hereof to be paid in respect of sales per cent. thereof (k). less a discount of 22 (1). PROVIDED ALWAYS that the licensee may commute the payment of future royalties as from the day of 18- or the last day of any other year thereafter of the said term hereby granted by serving the licensor with not less than three calendar months' previous notice in writing of his intention so to do and on such day or within days thereafter paying to the licensor all sums then due to him hereunder and a further sum equal to the aggregate of the royalties which (as calculated by the average yearly receipt hereunder of royalties for all the previous years) might become payable for the residue then to come of the said term (m) less however as to each yearly sum forming the said aggregate a discount therefrom by way of interest thereon at the rate of per cent. per annum for the period between the time of commutation and the day when such yearly sum is to be deemed payable and the licensor shall at the expense of the licensee duly execute to him a release of the said royalties accordingly (n). 23 (0). The licensee shall place on some conspicuous part of (i) The Average Clause. (j) Ante, p. 216. This clause may be used where the licensee has to pay royalties on sales, but not otherwise. Where the sub-licensees may manufacture, it may be provided that articles when manufactured by them shall be deemed sold to them, so as to make royalties payable to the licensor by the licensee thereon. See last proviso to Clause 1 of Licence IX., post, p. 274. (k) In the absence of such a clause the royalties payable on sales by the licensee, will of course be also payable on sales by sub-licensees. (1) Ante, p. 207. (m) Where rent is reserved the commutation might be based on the aggregate of the future rent, or the above clause be used. (n) This is a simple method of computing roughly the present worth of the supposed future royalties. A high percentage should be stated, partly as a set-off to some extent to the possible claim that compound interest should be calculated with half-yearly rests, i. e. if the royalties reserved are payable half-yearly. (0) As to the use of the patent mark, see ante, pp. 210--212. every article manufactured by him as soon as the same shall be completed a brass plate [or "label" or &c.] to be furnished by the licensor as and when required by the licensee bearing a mark (hereinafter called the patent mark) according to the form given in the margin hereof numbered in order of manufacture with one of the series of the numbers 101 102 103 &c. commencing with the first thereof and the licensee shall not part with the said article or keep the same in his possession without the patent mark so affixed thereto and shall not affix to or put on the said machine any other mark plate words or inscription whether having reference to the said invention or otherwise (except the name and address of the licensee) and shall on each half-yearly day aforesaid or within twenty-one days thereafter pay to the licensor for the said plates [or "labels" or &c.] so furnished in the half-year then ended at the rate of shillings per dozen including the costs of carriage and delivery thereof. 235 24 (0). The licensee shall affix on every box packet bottle jar or Another form. other receptacle of or containing the said manufactured by him a label or plate bearing the proper patent as and when mark and designation of the said invention which shall be furnished by the licensor as and when required by the licensee and shall not sell or part with the possession of any such or the receptacle containing it without &c. [As in last clause, but perhaps stating different prices for the labels and plates.] 25 (p). The licensor shall at his own expense from time to time Licensor to as and when reasonably required by the licensee but in respect only of at least in number of such articles at any one time tory to affix send person to manufacsend some person to the works of the licensee for the purpose of the patent affixing the said plates to such articles aforesaid produced by the marks. licensee as shall not have the same affixed thereto respectively. with a die. Licensees also by other licensees. 26 (q). Every article manufactured under this licence shall be Stamping stamped by the licensees with such die as shall be furnished by the patent articles licensors for this purpose. And further every article manufactured under any other licence granted by the licensors in respect of the to stamp said invention to any other person or persons shall during the con- articles sent tinuance of this licence as and when required by the licensors or any person authorized by them and if brought to the licensees for this purpose be stamped by them with the said die and the said articles so brought as aforesaid shall be properly stamped and ready for delivery within two days after the same shall have been. brought to the licensees who as to each quantity brought in at one and the same time may charge for the stamping thereof at the following rates respectively namely at the rate of shillings (0) Ibid. (p) Ante, p. 211. (9) Ibid. debited to licensors. per dozen and so proportionately for any part of a dozen not being Charges to be dozen and so proportionately as aforesaid and all such charges made in any half-year aforesaid shall be debited to the licensors and be set off at the end of such half-year against the same amount of royalties payable by the licensee for that period as aforesaid (r). PROVIDED HOWEVER that every die so furnished as aforesaid shall remain the property of the licensors and be delivered up as and when required by them. Dies to be property of licensors. Clause to be inserted in other licences for licensees to bring articles to licensees hereof to be stamped. No amend 27 (s). Each licence hereafter granted by the licensors in respect of the said invention to any other person or persons than the licensees hereof shall contain a clause or provision by which the licensee or licensees thereunder shall be bound to bring to the licensees hereunder to be stamped in manner aforesaid all articles manufactured under such licence and to pay for such stamping at the rates at least and otherwise as hereinbefore provided. 28 (t). The licensor shall not at any time during the continuation ment of speci- of this licence amend the specification for the time being in force at the Patent Office of the said invention or any other patented invention then subject hereto without the written consent of the licensee but such consent shall not be arbitrarily withheld. fication by licensor without consent of licensee. Covenant by licensor as to no prior licences, and not to use invention or grant other licences. Covenant by licensee to manufacture only according to specification [or in 29 (u). The licensor hath not heretofore granted any licence for the use of the said invention within the said district and will not during the subsistence of this licence use the said invention or grant licences in respect thereof or authorize any person whomsoever to use the said invention within the said district. 30 (). The licensee shall not during the continuance of this licence without the written consent of the licensor manufacture any article aforesaid without the application of the said invention as described in the specification thereof for the time being in force at the Patent Office [and in case he shall do so without such condefault to pay sent shall (but without prejudice to the right of the licensor in articles made this respect under Clause hereof to revoke this licence) pay otherwise, to the licensor such sum or sums by way of royalty to the amount royalties on (r) See Coryton, p. 534, note, where observed that patentees will thus be better able to check the accounts of the other licensees. (s) Ante, p. 211. (t) In general this clause will only be used for licences to manufacture, where the rights are to be exclusive or partially exclusive, or where premiums are to be paid. In a licence merely to sell the patent articles, the clause can hardly be required. As to this covenant, see ante, p. 202. (u) For exclusive licences only. See ante, pp. 182, 199. (u) Ante, pol 2012, 212. |