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Re: JMRI case -- Implementation of the Federal Circuit's Opinion

From: Rjack
Subject: Re: JMRI case -- Implementation of the Federal Circuit's Opinion
Date: Thu, 08 Jan 2009 13:13:45 -0500
User-agent: Thunderbird (Windows/20081209)

Alexander Terekhov wrote:

Why does this matter? State courts, the federal circuit courts of appeal and the US Supreme Court have all uniformly and routinely interpreted license restrictions as covenants rather than conditions precedent. In other words, the courts presume that the restrictions are covenants rather than conditions precedent unless the agreement clearly defines the restrictions as conditions. the CAFC's decision wholly ignores this long held principle of law.

One need only read the well reasoned opinion in RT Computer Graphics, Inc. v. United States, 44 Fed. Cl. 747 (1999)
to understand why the CAFC muddled the distinction between
"covenants" and "conditions precedent".


"The court in Graham v. James then noted that the programmer had furnished the publisher with the file-retrieval program before any royalties were paid, and "contract obligations that are to be performed after partial performance by the other party are not treated as conditions." Id. at 237 (citations omitted). A similar situation to that presented to the court in Graham v. James is presented in plaintiff's case. Plaintiff performed its part of the bargain by furnishing the border designs for use by the Postal Service. As the required credit was to be given by the Postal Service after the plaintiff furnished the material, crediting was an obligation to be performed after performance by the plaintiff, and, therefore, was not a condition precedent."


The whole idea behind a condition precedent is that the condition must be satisfied BEFORE the license is granted. If the condition DEPENDS on the license grant then it is impossible for it to be a condition PRECEDENT.

Why is it so hard for people to understand that you can't put the horse before the cart?


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