A non-challenge clause may be used in a dispute settlement agreement to exclude the use of affirmative objections by a defendant, including invalidity and non-infringement. This case shows that the wording of such a clause may have meaning and may be subject to different interpretations. In order to resolve the obvious conflict in the language, the court held that an infringement could, on the whole, serve a plea that a patent owner could bring. Or a violation may mean an element of a claim that requires one or more claims to cover an offending product. The court narrowly interpreted the first use of “infringement”: Cooper does not recognize that the subject`s products are covered by subject patents. The court, however, broadly interpreted the second use of “infringement”: Cooper reserves the right to defend itself in an infringement action against Kenall. The court interpreted the third use of “violation” narrowly and as an exclusion for the second term: Cooper can defend himself in an infringement proceeding, but he must not provide specific defenses of validity, enforceability or violation. The court held that this meant that Cooper could not argue that the subject`s products are not covered by subject patents, commonly known to be the defense of non-infringement. According to the court, Cooper contractually agreed not to engage a non-infringement defense in an infringement action brought by subject patents against the subject`s products.
Finally, kenall Cooper sued in 2017 for infringement of the five patents and violation of the settlement and license agreement. Cooper then claimed that the patents were not infringed and that they were not valid. Kenall then moved on to attacking these defenses based on the prior agreement of the parties. The license contained a non-challenge clause that stated, “Cooper does not recognize infringement, validity of sub-subject patents or third-party effectiveness, and reserves all defense against [related] allegations of infringement,. . . But Cooper will refrain from challenging the validity, enforceability, or infringement of subjects` patents in a court or other forum, unless Kenall asserts subject patents against Cooper products other than the subject products. The important part of the document is the disclosure of your claims. In summary, you waive the right to sue the infringer for copyright infringement for money or any other consideration. But some offenders will ask you to sign what`s called a “general release,” which represents a declassification of all claims — and may contain claims you`re not even aware of.