While it’s usually preferable to have an attorney draft your licensing agreement, it’s not always necessary. Legal-minded inventors can certainly draft their own patent license agreements with appropriate study and preparation. This article is about books and articles you should read – and precautions you should take – should you choose to do this.

One excellent free article on the subject comes from IPWatchdog.com, and is entitled “Drafting a License Agreement.” Patent attorney Eugene Quinn begins the article by cautioning that while it is okay to draft your own agreement, you should probably have an attorney review it before you use it. The key, Quinn writes, is finding an attorney who will agree to review an agreement that he did not personally create:

“There are some attorneys who will, no doubt, not want to review your work, but there are a number of attorneys that routinely work with independent inventors and understand the need to keep costs down by offering review services, such as reviewing patent applications or reviewing licensing agreements.”

SRC: http://www.ipwatchdog.com/inventing/licensing-agreement/

The next thing Quinn encourages do-it-yourself license writers to do is forget about the “template” mentality. There is a myth among intellectual property laymen that there are “standard” contracts for patent licenses that everyone uses. According to Quinn, this is wrong, and attorneys actually roll their eyes when clients ask for standardized or “template” license agreements. While there are standard elements of every agreement, the exact manifestation of those elements is virtually never the same for any two patent licenses. So don’t approach the task by trying to emulate what you believe to be a standard form.

Instead, the far smarter thing to do is focus on the specific clauses – things like performance obligations and royalty requirements – that will go into your unique patent license. IdeaBuyer has a comprehensive article on precisely this subject called “Writing Good Performance Obligations Into Patent Licenses.” Consider that required reading for any do-it-yourself patent licensing.

That said, you do want to at least look over a few sample patent licenses to get an idea of the structural elements they all share. Sample patent licenses can be found in abundance on the Internet, such as this one:

SRC: http://contracts.onecle.com/occulogix/brunner.lic.2004.10.25.shtml

However, Quinn recommends using an encyclopedia of legal forms, such as this one, which he describes in detail in his article:

West has an encyclopedia set called West’s Legal Forms. In the Second Edition it is Volume 25 that relates to patents (I know this because I own that volume myself). There are a number of good sample licenses in the West book. If you find a library that has a good intellectual property section (which is becoming easier given the growth of this field of practice) there will be several smaller encyclopedias dedicated to patent licensing, such as Milgram on Licensing. In most libraries the form books will be in one location and the IP books in another location, so be sure to check both locations.

Many will read this and think “yeah, that’s all well and good but I can probably get the same information from a local bookstore with less fuss.” However, this is often not the case. Many bookstore books on intellectual property are what John T. Read calls “dictionaries not in alphabetical order”. That is, they simply define some basic terminology of the field without laying out a concise sequence of steps for achieving the goal, which, in your case, is writing a patent license on your own. For this reason, you should stick to encyclopedias such as the one referenced by Quinn.

If you cannot or will not use such an encyclopedia, sample forms from universities are the most reliable alternatives. In any event, once you have a sample form to work with, you should adopt a “buffet” mentality. Rather than copying the structure of the patent license verbatim, simply take clauses that seem to match what you are hoping to convey in your agreement.

Using the sample patent license referenced earlier, let’s say you wanted to use this clause in your own license agreement.

Advance Royalty Payments. Licensee agrees to pay Brunner Fifty Thousand

Dollars ($50,000 USD) annually as an advance and credited against any and all Royalty Payments paid in accordance with this Agreement. Such Advance

Royalty Payments shall be non-refundable and be paid to Brunner and in

equal payments of Twelve Thousand Five-hundred Dollars ($12,500 USD), made

quarterly, on or before the expiration of Forty-five (45) days after the

reporting close of each prior calendar quarter.

According to Quinn, royalty requirements are one of the things do-it-yourself patent license writers should focus on most. So in the case of this clause, you would simply modify it to suit your needs. If your quarterly royalty payments are $50,000, you would just erase the $12,500 currently in that clause and replace it with $50,000. Repeat this process of taking clauses from other agreements and modifying them until you have a complete agreement that covers everything you want it to.

At this point, you are ready to show your agreement to an attorney and have him iron out any of the kinks that might be left. Good luck!

Eric Corl is the President of Idea Buyer LLC, a new product development company that owns and operates IdeaBuyer.com- The Online Marketplace for Intellectual Property. The site gives inventors the opportunity to showcase their intellectual property to consumer product companies, entrepreneurs, retailers, and manufacturers. You can email him at EricCorl@IdeaBuyer.com.

Once you have created your invention, the next thought is obviously “How can I capitalize on it?” One time-tested way of doing this is licensing your invention to a retailer who will bring it to paying customers. Retailers can be anyone with the ability to reach your market, whether it’s Wal-Mart, Target, Home Depot, or even an Internet website. The idea is that you will be cutting them in on the profits from the sales they make possible. However, there are a few things you should know about this approach before you dive into it. In this article, we will touch upon the most important considerations.

The first think to keep in mind is the notion of “inventory available.” Generally, successful retailers will want to know that you can supply them with enough inventory to handle a large volume of sales. This is simply part of the planning process that retailers engage in, especially catalogs. Therefore, you should have some type of strategy for addressing this before you go trying to license your invention to a retailer. Do you have the facilities and equipment to mass-produce your invention? Do you need to hire staff? If you are not sure what your capabilities are, ask the retailer in question what their inventory available requirements are. This will give you an indication of what you will need to do to produce enough inventory.

Another term you should get familiar with is the purchase order. About.com defines a purchase order as such:

“A written sales contract between buyer and seller detailing the exact merchandise or services to be rendered from a single vendor. It will specify payment terms, delivery dates, item identification, quantities, shipping terms and all other obligations and conditions.

Purchase orders are generally preprinted, numbered documents generated by the retailer’s financial management system which shows that purchase details have been recorded and payment will be made.”

The basic idea is that the retailer you license your invention to will be sending you purchase orders which say how much product they are buying from you at that time. It will be crucial for you to store and file these records in an efficient way, as they will over time contain almost all of your financial history with that retailer.

Another all too important aspect of licensing an invention to a retailer is the terms of payment. There are four main terms that are common today: net 30, net 60, net 90, and net 120. However, many retailers are known for using other, more creative terms of payment. Wikipedia offers some helpful hints that will help you clear up the confusion.

“Net 30 is a trade credit which specifies payment is expected to be received in full 30 days after the goods are delivered. Net 30 terms are often coupled with a credit for early payment; e.g. the notation “2% 10, net 30″ indicates that a 2% discount is provided if payment is received within 10 days of the delivery of goods, and that full payment is expected within 30 days.

For example, if “$1000 2/10 net 30″ is written on a bill, the buyer can take a 2% discount ($1000 x .02 = $20) and make a payment of $980 within 10 days, …

If credit terms of “2/10, net 30″ are offered, the approximate cost of not taking the discount and paying at the end of the credit period would be as follow:

[2/(100-2)]*[365/(30-10)]=0.3724 in percentage = 37.24%”

Obviously, you as the licensor will want to secure the timeliest payment terms possible; most likely, this means Net 30. However, you should be warned that not every retailer will go along with this. The bigger the retailer is, the more clout they have in compelling you to accept their terms. One way around this is to start by licensing your invention to smaller retailers, building a successful track record that you can use as leverage when it comes time to negotiate payment terms with larger retailers. Either way, you want to try and negotiate as hard as possible for payment terms that benefit you.

Another way to license your invention to a retailer is to go through what are known as “reps.” Although reps are somewhat less commonly used today than in the past, they still have a large role to play. Reps are people who are on good terms with the buyers at various retailers and who convince those buyers to stock certain products. If the buyer’s store does stock those products, the rep gets a kickback from the product manufacturer for getting them into the store. While you might balk at the idea of paying someone to get you in the door, it may be worth investigating. Sometimes all it takes is an introduction to get the deal done.

Keep these tips in mind and you should find that licensing your invention to a retailer makes more sense than it did before.

Eric Corl is the President of Idea Buyer LLC, a new product development company that owns and operates IdeaBuyer.com- The Online Marketplace for Intellectual Property. The site gives inventors the opportunity to showcase their intellectual property to consumer product companies, entrepreneurs, retailers, and manufacturers. You can email him at EricCorl@IdeaBuyer.com.