November 1, 2021
Ray Millien and Hamad Mirza Discuss How to Draft Better IP Licenses in IPWatchdog Article
By: Harness IP CEO Raymond Millien and Law Clerk Hamad Mirza
The phrase “for the avoidance of doubt” must be a Microsoft Word shortcut that comes standard in some legal IT package. Why do we say that? Well, we recently received an IP licensing agreement from an attorney working at a large law firm located in a large city, serving a large client, and presumably charging a large hourly fee. It seemed as though every 50th word in the agreement was “for the avoidance of doubt.” Now, this is not a personal attack on this particular attorney or law firm. We have seen the phrase used way too often and do not understand why. Perhaps this is just a phrase that makes agreements sound more legalese or maybe the attorneys in question think it makes certain provisions in the agreement more “airtight?” Nonetheless, we ask all of you to please stop!
Defining the Terms
Let us start by defining what the phrase means in a literal sense. Not surprisingly, Black’s Law Dictionary does not define the phrase “avoidance of doubt” in its entirety. Rather, it defines each word on its own. Avoidance is defined in as “a making void, useless, empty or of no effect; annulling, cancelling; escaping or avoiding.” Doubt is defined as, “uncertainty of mind; the absence of a settled opinion or conviction.” Thus, avoidance of doubt must mean making void of uncertainty of mind, or in simpler terms, to clarify. There seems to be little confusion on what the phrase means.
In our view, attorneys have become so accustomed to using this phrase that it is employed regardless of whether the provision is attempting to clarify a previous provision. Thus, we get to our original example where the phrase appeared every 50th word in the IP license agreement. Even when used correctly, the phrase undermines the previous provisions. For example, imagine getting into an intense argument with a loved one and saying, “I love you, but … .” Does anything before the word but really mean anything? Probably not! Even worse, use of the “for the avoidance of doubt” phrase tells the reader that the previous provisions are not clear, and the author was forced to clarify their intention with even more words. What if the author just rewrote the previous provisions to make it clear to begin with? That solves the problem!