First, the licensee must conduct a full review of the terms of the licence agreement to determine whether a special discharge is granted. In particular, its licence contains provisions relating to the case of force majeure, obligations related to the delivery (for example. B minimum sales, production or licensing requirements or time requirements) and termination or termination of the contract. For more details on the main provisions and conditions of patent licensing agreements, see the French phrase “Force majeure” means superior violence. The performance of part of the contract is not possible for reasons that are not controlled by the parties and which could not be avoided by the exercise of the necessary diligence, this provision protects the parties. It covers a wider class of events than vis major (i.e. an act of God). As a result of the pandemic, brand licensees who have entered into licensing agreements with licensees for the use of their trademarks have encountered unexpected difficulties in meeting minimum sales standards and paying minimum licensing fees. In addition, these licensees are now rightly wondering what their options, if any, are available under their licensing agreement to excuse their performance under COVID-19? 1. See Kel Kim Corp.
v. Cent. Mkts., Inc., 70 N.Y.2d 900, 902-03 (1987). 2. See 14 Corbin in Treaty 74.19. 3. See JP Morgan Chase Bank, N.A. v. DataTreasury Corp., 823 F.3d 1006, 1012 (5th Cir. 2016) (enforcement of a preferred license clause).
4. See how COVID-19 could undermine patent strategies. 5. See Open Covid Pledge on opencovidpledge.org/. 6. www.parl.ca/DocumentViewer/en/43-1/bill/C-13/royal-assent. In light of the above scenario, the question arises as to whether persons who operate commercial facilities from premises acquired on vacation and in license can invoke a force majeure clause to apply for an exemption from the payment of monthly royalties under the licensing agreement with the building owner. The withdrawal and licence agreement gives the purchaser only an easy fee. No rights, title or interest are transferred to the licensee. Even ownership of the property is not handed over to the licensee.
What is given to the licensee is only the license to use the premises for the agreed purposes. For example, a patent holder, the fact that Gilead Sciences Inc., manufacturer of the experimental antiviral Remdesivir (initially focused on Ebola, but found to have potential in the treatment of coronavirus) gave its offer for the exclusivity of orphan drugs, after critics accuse of trying to take advantage of the pandemic. In addition, the pandemic has resulted in the temporary granting of an open source patent portfolio license, held by a few large technology companies and research institutes5. If the institute obtains its own patent, it can offer gilead something valuable in a cross-licensed. As a general rule, courts closely lay down force majeure clauses when they fulfill their purpose, which is to limit damages in a case where circumstances beyond the control of the parties have disappointed the parties` expectations and compliance with the parties` licence. If the parties explicitly define the contours of a “force majeure” in the licence, it is these contours that determine the application, effect and extent of the force majeure provision.