Intellectual Property and Technology Licensing
Rights and Deal Mechanics
IP is a bundle of distinct rights. Copyright protects expression, not ideas, and arises automatically; ownership of employee-created works often vests in the employer by law, but contractor deliverables need an express assignment. Trademarks protect source identifiers through registration and use, judged by likelihood of confusion within classes. Patents require novelty, inventive step and industrial application, last about 20 years, and are destroyed by prior public disclosure in most systems. Trade secrets survive only with reasonable secrecy measures - NDAs, access controls, marking.
Licensing is not assignment. A licence grants permission within defined field, territory, term and volume; an assignment transfers ownership. Exclusive excludes even the licensor; sole leaves the licensor as a competing user; non-exclusive permits others. Sublicensing, modification, reverse engineering and benchmarking each need explicit permission - do not assume them.
Key clauses: scope of use, fees and royalties, audit rights, warranties of non-infringement, IP indemnity, escrow for business-critical software, termination and survival, and ownership of improvements and derivative data.
Open source is a licensing category, not a legal status: permissive licences (MIT, Apache) impose attribution; copyleft licences (GPL) can require source disclosure when distributed. SaaS use may avoid distribution triggers - but this must be verified, not assumed.
Rule of thumb: NDA ≠ assignment ≠ licence. Identify which one the clause actually grants before advising.
Worked example: a vendor supplies software under a non-exclusive licence; the customer's affiliate cannot use it without an affiliate-use or sublicence clause.