“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?”
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.
Next, let us analyze when attorneys use the phrase in an IP license (or any) agreement. The most obvious use is to confirm a point that is not clear either in the present agreement, or when combining the present agreement with previous agreements. In one example, the Chancery Court of Delaware recognized the provision beginning with “for the avoidance of doubt” is contemplated and “the language is included solely to confirm [the] pre-existing outcome.” White v. Curo Texas Holdings. In another example, the provision provides specific examples to expand on an earlier provision. Similarly, the U.S. District Court (S.D. Texas) held the provision “may well be construed not as limiting liability but as clarifying language.” Oceaneering Intern., Inc. v. Cross Logistics, Inc. These may seem straightforward. But it gets worse.
In contrast, the U.S. District Court (D. Maryland) in Geist v. Hisp. Info. & Telecom. Network, Inc. rejected the argument that a phrase beginning with “for the avoidance of doubt” was used to clarify previously-stated provisions of the agreement. The language in the agreement following “for the avoidance of doubt” actually went on to introduce new terms that were not found elsewhere. The court noted all previous provisions in the section apply to then-existing agreements, and the terms following “for the avoidance of doubt” are in reference to future agreements. Therefore, the court was forced to provide independent meaning to the provision and not simply treat it as a clarifying phrase. So, in this case the phrase was not actually used to clarify! Perhaps this is just a one-off exception, and all other attorneys are using the phrase properly? Not really!
The U.S. District Court (N.D. California) in Autodesk, Inc. v. Alter also held that the language following “for the avoidance of doubt” in an IP licensing agreement was not used to clarify previous provisions. Specifically, the provision following the phrase addressed a different class of claims and different parties than those referenced previously. The court further stated the term “introduces new obligations.”
I Love You, But…
So, these cases beg the question: Why are attorneys using a phrase that literally means “to clarify,” instead of simply introducing new obligations? Who trained these people!?
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!
Adams on Contract Drafting provides a list of examples where the “for the avoidance of doubt” phrase is commonly used. This ranges from serving no purpose at all, to using the phrase as an alternative to a party acknowledging a given fact, to using the phrase to provide rhetorical emphasis. No matter the purpose, Adams demonstrates that eliminating the phrase actually improves an agreement provision’s language. Finally, someone that understands our frustration!
As IP attorneys, we are prone to analyzing every word because they each matter. In 1892, the U.S. Supreme Court in Topliff v. Topliff said it best: “[t]he specification and claims of a patent, particularly if the invention be at all complicated, constitute one of the most difficult legal instruments to draw with accuracy.” We couldn’t agree more! In drafting patents, we have learned to eliminate words that are not necessary and more importantly, draft language that is as clear as possible from the start to avoid Section 112 issues, among others. IP attorneys, particularly those that have experience drafting patent claims, are pretty good at drafting agreements because of this experience. (After all, what aren’t we good at?) So, for the avoidance of doubt, don’t let our use of humor distract from our seriousness. Please stop.
Image Source: Deposit Photos
Image ID: 2438920