*1 harm.”); Smith v. result from a damages Inc.,
Bruning Enterprises, 424 N.E.2d (holding that (Ind.Ct.App.1981) damages appropriate award was
nominal “the evidence the dam- supporting
where Thus, speculative”). notwith-
ages was
standing policy considerations mitigate against the and re-
would costs expended on a
sources trial where damages were available from the
nominal
outset, Shepard may be enti- nonetheless try this case in form under
tled to some (provided
those terms he had sufficient
evidence establish a breach the con- reach).
tract —an issue that we do not But
we not decide whether Indiana law need Shep- such an odd
supports result because cannot establish requisite
ard causa- in this case.
tion
III. CONCLUSION reasons, foregoing
For the we Affirm summary judg-
the district court’s
ment in favor of the defendants. DESIGN,
AUTOMATION BY
INCORPORATED, Plaintiff-
Appellant, COMPANY,
RAYBESTOS PRODUCTS
Raytech Corporation and Production Services,
Design Incorporated, Defen-
dants-Appellees.
No. 05-1172. States Appeals,
United Court of
Seventh Circuit.
Argued Sept. 2005. Sept.
Decided
built for Raybestos years several earlier. Because we find that Raybestos did not violate the terms of the agreement, we affirm the decision of the district court *3 granting summary judgment and declara- tory judgment in defendants, favor of the Raybestos and PDSI.
I. parts manufactures used in industry. automotive In late 1998 or early ABD, 1999 it contacted a designer and manufacturer of assembly automated machines, to negotiations initiate for a con- tract to manufacture an automated clutch plate assembly machine to replace аn ex- isting one. Representatives from the com- panies met several times and ABD submit- offers, ted three separate none of which was accepted by Raybestos. On June 1999, following by further discussions parties, ABD sent a letter offer- ing to plate build the clutch assembly ma- $756,000. chine for Among other things, June offer letter memorialized the parties’ earlier agreement that Raybestos purchase would itself all of the component machine, for allegedly due to Geoffrey Slaughter, Bray Michelle K. concerns about ABD’s financial health. Barnard, (argued), Sommer Indianapolis, The letter also contained the following lan- IN, for Plaintiff-Appellant. guage gordian which forms the knot of this Wildman, Elizabeth Keiley (argued), M. case: Harrold, Dixon, IL, Allen & Chicago, for grants RPC the to duplicate Defendants-Appellees. any or all design copyrighted CUDAHY, KANNE, Before as it relates to project. this This “li- ROVNER, Judges. Circuit cense” is non-transferrable and is equipment exclusively by to be used ROVNER, Judge. Circuit RPC and does include equipment to this infringement dispute, be fabricated for resale or transferred to IncJABD) Automation Design, alleges a customer or supplier of RPC. Products Company, a whol- 2). 90, M, p. Ex. (to- ly owned subsidiary Rayteeh Corp., Raybestos accepted the terms of this “RPC”) gether “Raybestos” or infringed and, 24, 1999, June offer letter on June on its copyright and agree- breached their a purchase issued order. purchase ment when it Design hired Production Ser- vices, (PDSI) required, Inc. among to build a order things, ma- chine of construct, one that ABD designed design, had and ABD and install a clutch to be used exclu- provide machine assembly plate also Raybestos. ma- ABD’s letter sively by set of reproducible Raybestos with immediately order also purchase the license effective drawings. revoked chine that “the designs. parties’ return of the reflected and demanded the be this machine will price duplicates interpre- disagreed with ABD’s price more than 85% for not contin- language and tation of the contract N, machine.” Toward suppliers. alternate pursue ued to purchase order terms of accepted the end, made during fall and, some- manufactured designed, machine manual. Ken copies three installed in the summer time Harlan, manager of Technical all of and delivered machine *4 Services, of the manual copy delivered one pur- in the specified the documentation with di- suppliers of six different to each order, design the machine including chase copy with its bid rections to return copyright sym- a ABD affixed drawings. confidentiality agreement. along with a drawing. bol to each copy of supplier returned When one early 2001 or well until late All remained manual, machine Harlan delivered ABD 2002, Raybestos contacted and when supplier. All of the copy to another same a second machine requested quote a for machine manual were re- copies of the 15% discount described expecting the Raybestos with the bids. Ulti- turned to 24, order. The purchase the June mately Raybestos design chose PDSI to ABD, however, was not 15% quote machine, incorporat- and install the second machine, the first but price than the of less changes requested by ing thirty-three higher. ABD asserts rather it was 10% 30, and, аfter Raybestos, some time June over Raybestos requested that because a Raybestos provided PDSI with machine, thirty changes material to the during to use copy drawings of ABD’s view the second machine as ABD did not manufacturing process. PDSI made a subject to the original, duplicate drawings ABD and used photocopy of the Raybestos disa- of the. discount. terms component the manual to obtain the list of greed. suppliers identify and to the various higher quote, from the Smarting At the changes Raybestos requested. sup- from alternate Raybestos sought bids process, generated of its com- end PDSI negotiate with pliers, but continued drawings for the ma- plete set of its own in- Raybestos During negotiations, ABD. chine it built. received a bid for formed ABD that had 31, 2003, regis March ABD On $250,000 than ABD’s bid. nearly less Copyright with the U.S. copyright tered its 3, 2002, attorney response, July on ABD’s patent ABD does not hold Office.1 Raybestos declaring delivered letter ABD any part or of it. Machine property are the exclusive that “the Plans against claim subsequently brought a may not be by Design, of Automation and alleging copyright and PDSI by Raybestos pro- or used or reproduced infringement and breach of contract and party third vided declaratory relief. requesting V). its use.” and PDSI counterclaimed breach pointing countered this claim Upon the declaratory and relief. contract granting purchase order motion, the district court all defendants’ fringement may be filed in court. See 17 Registration suit is not a condition of § protection, necessary an in- U.S.C. 411. but before summary judgment for the defen- construe granted copyrights courts as contracts moved dаnts. Thereafter defendants and turn to the relevant state law to inter- entry declaratory the district court of a pret Kennedy them. v. Nat’l Juvenile favor ABD. judgment against in their Ass’n, Det. 187 F.3d Cir. voluntarily moved separately 1999). The district properly court turned claim. The dismiss its breach contract dispute to Indiana law to resolve the be- court mo- granted district defendants’ two corporations princi- tween these whose judgment tions final in favor and.entered pal places business are in Indiana. against ABD. the defendants law, Under contract Indiana appeals affirm. and we interpretation unambiguous contract is a of law matter that can resolved on be II. judgment. summary Orthodontic Affili- part most
For the
.do ates, P.C.,
Although the United States rights speci of the subdivision Act, 101-1332, §§ 17 Copyright U.S.C. 106, may fied transferred jurisdiction infringe section be grants exclusive courts, (1) provided separate- ment claims to the federal those clause and owned 754 words, equipment.” One ted to use a license “for holder
ly.”).
right
duplicate
way
“right
duplicate
to one
to
to
to
obvious
use
may transfer
another,
to
to distribute
is to
person,
right
design”
equipment”
license “for
produce
to
derivative works
Consequently,
and the
duplicate
equipment.
Inc. v. Me-
yet
to
another.
ITOFCA
appears
on
face
to allow
language
Inc.,
F.3d
929-
322
gаTrans Logistics,
duplicate
In-
equipment.
(7th Cir.2003)
are
(“Making
selling
30
deed,
agrees
ABD itself
you
assign
can
one
rights and
distinct
equipment,
so on this
duplicate
other.”).
case
This
turns
without the
argues,
clear.
point
language
ABD
granted
ABD
rights
which subdividable
however,
that Raybestos could
Raybestos.
only
and then sole-
ly
purpose
for the
of maintenance
rights
which
To determine
(ABD
17, 19);
repair.
(Reply
brief
Raybestos,
we look
the lan
granted
11). As
proposi-
brief at
evidence for this
If,
if,
agreement.
guage
tion,
letter
points
to its June
2001
ambiguous may we turn to
states,
mainte-
“for
corners
outside of
four
evidence
repair
purposes,
nance and
parameters
to determine the
Company
have the
Products
does
Magee Garry-Magee,
v.
the license.
(R. at
duplicate parts
assembler.”
(Ind.Ct.App.2005).
N.E.2d
above,
M, p.
just
As
noted
ambiguous
of a contract is
of a contract are
where the terms
disagree
simply because
unambiguous,
clear and
this court cannot
Simon
meaning
Prop.
terms.
Magee,
extrinsic evidence.
consider
Group,
Sporting
L.P. Mich.
Goods Dis
*6
parties’ agreement
N.E.2d at 1087. The
(Ind.Ct.
Inc.,
trib.,
1058,
N.E.2d
1070
837
as
meaning
language
of this
ambiguous only
App.2005). “A contract is
—that
Raybestos
right
duplicate
had the
to
person
a reasonable
could find its
where
proof of
equipment
vigorous
to more than one inter
susceptible
terms
—constitutes
Indeed,
clarity
if the
McIntosh,
language.
845
pretation.” Cummins
parties agree
meaning,
as to the
it seems
(Ind.Ct.App.2006).
N.E.2d
To
in-
person
certain that
any ambiguities
are
in
reasonable
determine if there
terpret
language
only
way.
this
in
two sentences of the
one
contested
June
Cummins,
letter,
major
by eliminating
We be ours). emphasis italicized The second the contract sen- cause is sub *7 ject only paragraph up one tence of this is made interpretation, we need not two rely will not on extrinsic evidence to appear clauses cоntradict one an- way. Similarly, our the guide court cannot other. In the first clause it restricts to, vary, the explain add or terms of this Raybestos’ “equip- use of the license to unambiguous agreement. Cooper v. Coo exclusively by [Raybes- ment to be used 212, (Ind.Ct.App. 730 N.E.2d per, sentence, half The second of the tos].” 2000). reject in Consequently, we ABD’s however, seems to allow the use interpret vitation court to the con of equipment the license to fabricate for limiting tract or to it language add the equipment resale or to transfer to a cus- repair license to the and maintenance of supplier seemingly tomer or limitless —a the machine. license, grant permission to use the including grant a to use the license to second Turning to the sentence of compete directly party ABD. Neither with disputed ABD’s paragraph, the letter mentions in the briefing this contradiction that is states the “license non-transfer before this court and the district court similarly language unambig that is able”— ignores well, likely it as most because all words, rights uous. whatever assumed, do, parties we that ABD granted Raybestos, Raybestos rights not meant to word “not” could transfer those another. include the between it trans- fact, when in tos violated “include.” In “does” the word purpose for the design to PDSI repeatedly read ferred deponents depositions dupli- a allowing to manufacture the word “not.”2 of PDSI include contract to necessary for use. is not cate machine ambiguity Resolving this (indeed, transferability regarding matter two claims of this makes for the resolution noted, nor the The first is distribution. just neither it). glar- or Such distribution permit mentioned license did not court district key paragraph in the “the transfer whatsoever: ing contradiction warrants men- the ‘license is clearly the contractual states ” (ABD however, 14); tion, if not resolution. We “the brief non-transferable.’ simply by applying the matter means resolve nontransferable use of the term mistake, and, (oral since of mutual at argument doctrine nontransferable.” with- “[ajbsent that can be resolved ambiguity 25min:33-37sec); is one from the lan- determination, it does a factual out aid of License, any right to guage the summary judgment. prevent grant (ABD 15); not Designs.” brief distribute the at But 846 N.E.2d Perryman, License question but that the “there is no necessary not resolution is because such permit distribution.” language does case, we mention the in this for decision 18; “it is without solely for the sake of thor- contradiction prоhibited language of the License express oughness. any duplication rights the transfer of 22; Id. at party, including third PDSI.” key language all of the
Having reviewed face, did not it’s the License contract, “[o]n parties’ can turn to the of the we Id. at 10. At any rights of distribution.” alleged transfer regarding the arguments that, time, despite Raybes- the same concedes According to design. of the attorney subject and Sup- then moved to a new of Law in Memorandum 2. Defendant's portions we can tell from the of the from what Summary Judgment men- port of Motion transcript provided, it was not mentioned dispute that it is not but maintains tions 222, E, 1.23-p. again. p. at n. relevant. 1.9). during deposi- The matter was also raised Similarly, portion deposition in a of the further, addressed least tions but not attorney Raybestos employee Jan Morse portions dеpositions discussed in comment, ABD, Morse, without read portions sup- provided to court. These "not” into the sentence: everyone port hypothesis that assumed Q: Okay, so that second sentence any equip- did not include that the license at, looking please paragraph that we're for resale or transferred ment to be fabricated again. out loud read that supplier of RPC. to a customer or and is A: "This license non-transferrable principal During deposition of ABD exclusively used to be *8 Raybestos, by the fol- John Kirk counsel for any equip- by RPC and does not include lowing exchange occurred: fabricated or for resale or trans- ment to be Q: sentence, you Okay. second if supplier customer or of RPC.” ferred to Q: to me. could read that your understanding of the What is non-trаnsferrable and is A: "This license meaning of that sentence? exclusively Q: to be used gets It a little bit confus- I don't know. think, structure, equip- by and does not include ing RPC I a little bit. in its your for resale or trans- ment to be fabricated take time to read it A. Go ahead and supplier again you to a customer or of RPC.” ferred over if like. Q. I, 252, 1.9) 1.10-p. Does it You read "does not” include. Ex. ours). say (emphasis does not include? No, questioning says "does include.” of this line of A: it does not. It The remainder provided was not to this court. Sorry. agreement, tos to of photocopies designs. If, on the face make the “implicit had an of distri- however, Raybestos capacity lacked the to maintaining bution for the sole purpose (if, on photocopy designs sight the for ex- (oral machine,” repairing argu- the ample, designs the to large were for an lmin:13-18sec) ment at one that was not ordinary copier or needed to be repro- apparent language in agree- from the color), duced certainly ment, the solely but from extrinsic evi- designs take the ato Kinko’s photocopy (ABD 19, Reply dence. brief at brief at shop copied. to have Similarly, them if it 11). short, simultaneously argues lacked capacity to manufacture that “non-transferable means non-transfer- own, on its it had to hire another period, but also states that there able”— true, to do so in its It is stead. as the exceptions prohibition are to of trans- out, dissent points that PDSI benefitted ferability. Raybestos’ position, on the oth- hand, defining er from scope having designs. is that of a It benefitted in permissible is unnecessary as transfer however, pаrt, way the same that Kin- attempted transferred or never might kos being benefit from awarded a (Appellee’s to transfer the license PDSI. job. photocopy Additionally, course, 27). Rather, applied brief at to PDSI saved considerable time and expense PDSI as agent. having to reinvent the wheel. But could not counters that PDSI have again, Raybestos opted put had engi- Raybestos’ agent been because the two neers payroll and manufacturers on its parties signed specifi- own, complete job it on would have cally relationship their defined expense by saved having considerable independent agents. and not contractors designs being rather than forced to re- puts This too fíne a engineer verse the machine. The benefit point on it. not delve We need into therefore, of having designs, was complex agency discussion of to under- Raybestos’ benefit —a benefit for which it stand the term as uses it here. paid. designs, Raybestos Without Raybestos hired “to act for or in PDSI would have had to start scratch —a itself, place representative. of’ aas ed.2004) contingency requiring it avoided (de- access Dictionary, Black’s Law fining “agent” who is designs agreement. authorized as a “[o]ne term another; to act for or in place repre- case to dissent would return this sentative.”). of how Regardless the two district court proceedings for further their relationship chose to define determine whether “PDSI’s low bid on the remuneration, tax, law, employment replacement possession machine and its liability purposes tort purposes, of de- designs the existing merely machine’s termining occurred, transfer whether a it coincidental in the face a reasonable Raybestos simply seems clear that hired contrary.” inference to the Post at 763. PDSI to act in Raybestos’ using stead — demonstrates, As the above discussion design to create machine that to that' the answer likely capacity did not have the create irrelevant. secured Once its own. To see that had the rights and “use *9 right to in designs use the this manner we duplicate machinery, the license” to it only need look to a more clear-cut exam- could hire another to manufacture party Take, instance, ple. Raybestos’ right for parts it if for lacked tools or to All duplicate parties agree the designs. language clearly Raybes- that this skills to do so allowed itself. nо transfer oc- This conclusion—-that or contractor agent one’s
Allowing aspect of the wraps up all but one is not one’s own benefit designs for to use curred-— in case. infringement claims this copyright of a transfer definition a transfer. although Raybestos in helpful argues not Act is Copyright under of parts from and manufacture explicitly duplicate it excludes could context as this own, like the it could not machinery licenses on its non-exclusive its definition defini But general machinery Other as a whole. duplicate in this case.3 one “transfer,” the one from like of once ABD admitted tions perhaps are more Dictionary, equipment for main- parts Black’s Law duplicate “(1) a transfer as fight Black’s defines was over. helpful. repair, and this tenance with disposing parting of or [a]ny mode of in the contract lan- nothing For there is asset, includ in an or an interest distinguish asset between guage that would release, money, of gift, payment ing a making and derivative works copying lease, other encum of a lien or or creation the machine parts, more but not for one or (2) of an instru Negotiation ... And, above, brance explained as a whole. (3) of law ... according to the forms ment dupli- to rights Raybestos had whatever from or title one conveyance property A of cate, in its it could hire PDSI to do so Dictio another.” Black’s Law person to right that the argues The dissent stead. ed.2004). Surely Raybestos nev nary “project” limited to the duplication part to with whatever er intended only the the dissent claims was then, and Raybestos needed rights it had. Post at 762. From this “first machine.” ability to use the likеly today, the needs “Raybestos’s the dissent concludes ma maintain its operate not should implied right distribution Furthermore, signed a Se chinery. PDSI making spare replace- beyond extend Confidentiality Agreement crecy and first machine because ments any proprietary infor agreeing not to use right not admitted such a ABD has Raybes gained in its work with mation ours). But (emphasis distribution.” use, no so it has con tos for commercial logic only works if we leap this tinuing ability or to use the license. need request interpret the contract ABD’s X). if limiting language is we add such —that ABD’s contention that the contract accept disputed sentence of the
The second say. something that it does not implies explains further above, we And for reasons described parties intended parameters of what Furthermore, pоints cannot. The license “is constitute a transfer. If opposite result. the license exclusively by equipment to be used duplication as it relates to grants words, purpose pro RPC.” other states, and the project, dissent prevent Raybes hibiting a transfer was machine, is defined as the first project going into the tos or third had the then assembly selling plate clutch business The district the first machine toto. to others. The license such summary judg- correctly granted court permitted Raybestos employ de ment for and PDSI on pre signs only for its own use—-which infringement claim. copyright cisely what it did. rights comprised copyright, or copyright ownership’ in a whether is an 3. "A 'transfer effect, license, place of but assignment, mortgage, it is limited in time or exclusive or alienation, including a license.” conveyance, hypothe nonexclusive § any of exclusive U.S.C. 101. cation of a or of
759 B. Revocation license. whether Illinois’ common law allowing con unspecified tracts of duration to be termi Because did riot mate nated at will conflicted with the Copyright rially agreement, breach the license § Act’s 203 on termination which allows district court was correct in determining copyright holders to grant terminate the of that ABD revoke the license thirty-five license after years.4 Id. at agreement. breach of the at 483. The Walthal court concluded 11). that it turnWe to the consequently did not. Id. at 485. Copyright Act remaining question in this case—-whether a copyright allows holder to terminate the ABD could terminate the license at will. grant copyright of a thirty-five after years, law, Under Indiana a contract but nothing in the act prevents parties provides no termination date is ter from agreeing to a period shorter for ter by minable at will party. Rogier either mination or prevents the operation of state Am. Testing Eng’g Corp., 734 N.E.2d law allowing termination at will. Id. at (Ind.Ct.App.2000); Spe Marksill 482, 484-85. cialties, Barger, Inc. v. 428 N.E.2d Furthermore, (Ind.Ct.App.1981). points state to Walthal as defini governing law contract termination support does tive for its claim for proposi not conflict with and is therefore pre tion that any copyright license of indefinite empted by the federal Copyright Act. Wal duration can be terminated at will. Be Rusk, thal v. 172 F.3d Cir. cause upheld Walthal a copyright grant- words, In other if a contract is right or’s will, to terminate the at law, terminable will under Indiana noth even where the license holder paid had ing in the Copyright federal Act wоuld license, consideration for the the case cer prevent such a termination. tainly appears helpful to ABD’s claim. Regarding termination, consideration and According to because the contract says Walthal only: “Touch provided no termination date or fixed du- presents ration, Go two primary issues. could terminate it at The first will. In is that support Walthal, licensing agreement position cites irrevoca which upheld right ble because of a musical consideration —the 50 group percent to cancel an profits oral contract share of the unspecified paid. This con —was duration that gave a record tention is without distributor the merit.” Walthal 172 essence, nonexclusive to manufacture F.3d at and sell 483. the Walthal court certain recordings in return fifty for a assumed that the contract was terminable percent share of the sales. Id. at 485-86. will under Illinois law and instead The Walthal court’s task was to determine turned its attention nation under the ed at otherwise than any right case of a (3) (a) hire, Termination of the Conditions for author on or after transfer or license of the exclusive or nonexclusive time under a [*] work other than a during period following i|s will, copyright, Termination. —In the grant may January subject conditions: ?¡s of five executed work made be effect- to termi- 1, 1978, # years grant or of 17 U.S.C. 203. thirty-five years tion of the tion of the work under the beginning lier. from the end of if work, grant forty years date § grant, at the end of covers the of execution period begins from the date of whichever term ends ear- from the date of execu- thirty-five years at the end of publicаtion grant; or at the publica- or,
760 due guage allowed termination Copyright law Illinois or Federal whether case, (Raybestos’) at we must to default or Purchaser’s In this prevailed. parties agree as to wheth- Both that this question the threshold convenience.6 answer par- 21, document, at between the 1999 along er the contract issue with the June And at will. because agree- ties was terminable from ABD formed the offer letter precisely 6); more at this 97, this court looked at parties. ment between Piano, in Baldwin Inc. 10-11). particular Although at (Appellee’s brief GmbH, 392 881 F.3d v. Deutsche Wurlitzer print Raybestos’ fine describes (7th Cir.2004), pro- trademark case boilerplate no purchase order as it makes analysis.5 our guidance more vides binding. was contention that Cf. Bank, 1374, Prall v. Ind. Nat. 627 N.E.2d reorganization in the After a Wurlitzer (Ind.Ct.Apр.1994) (holding party 1378 kept Piano company, piano Baldwin boilerplate where he the terms of and became the new organ business not con- party was and did sophisticated organization; parent company GmbH, boilerplate language was am- tend that the jukebox Deutsche Wurlitzer manufacturer, agreed he it under biguous firm or that spun off another duress). Piano, a license to continue to use economic Baldwin but received juke- name on the famous its court at the termination “Wurlitzer” looked contract’s Id. at 882. products. boxes and other clause and determined that the enumer later, in- years Baldwin Piano Eighteen clause rather ations in that were exclusive li- formed Deutsche Wurlitzer prohibit than and consequently illustrative immediately. was cancelled effective cеnse termination including form of ed court, looking to the contractual Id. The Piano, at will. 392 termination Baldwin and the termination economic court F.3d at 884. The Baldwin Piano situation, li- held that the realities Supreme relied an Illinois Court deci on at be terminated will. Id. cense holding that a list of sion non-exclusive at 886. the term of reasons for termination makes permits the contract indefinite and termi parties and the district court
What both nation Id. (citing Jespersen at will. parties in just like ignored, Co., Ill.2d Mining Mfg. Minn. 183 Piano, unlike the Baldwin but 1014, 233 Ill.Dec. 700 N.E.2d Walthal, between (1998)). Conversely, 1016-17 an exclusive Raybestos did indeed contain a termi- prevents list of for termination clause. June reasons nation Order, boilerplate Although we do Purchase contained lan- termination will. disputes, just this order for convenience in 5. Trademark license contract terminate part by disputes, governed are notice to Sell- like whole or in written termination, general interpretation. er. event of Sell- rules of contract In the such McCarthy, McCarthy may 4 J. Thomas on Trade- er its reasonable costs incurred claim 18:43, § Competition prior marks and Unfair at 18- to the effective date of termination (2004). plus profit, all a reasonable allowance for gen- to be determined accordance with erally accepted procedures, provided, how- ever, upon (a) payable that the local sum ter- TERMINATION: Default. Purchaser price not exceed order may mination shall any part order or terminate this by payment previously made. If it reduced thereof written notice if Seller fails appears performanсe that Seller would have sustained complete make deliveries or com- specified loss the entire order had it been of services within the time or in (b) agreed pleted, profit shall be .... accordance schedules .... no allowed with N, 3-4). pp. may Purchaser’s convenience. Purchaser *12 designed the same from the not have elucidation doctrine was to allow businesses Supreme Court the Baldtmn to part ways amicably Indiana they where had an n Supreme court had from the Illinois long-term Piano ongoing relationship re- that Court, agreement a natural reading of the quired and agreement coordination a over par- the in this case indicates that terms long period of time and where the relation- in which ties have delineated the instances ship longer profitable was no for one or anticipated they permissible termination that, parties. “Terminability more means list appears and that to be exclusive rather if goals the firms’ or diverge, methods the lan- Consequently, than illustrative. may get side out.” either Id. at 885. But an guage agreement supports the inter- where, here, parties the are not locked that the contract not termin- pretation was an together ongoing in relationship there will. able at See id. is no in presuming sense parties the Similarly, the economic realities of the intended to make their contract terminable agreement treating will, favor the license as at particularly language where the at will. perpetual rather than terminable license, agreement, the nature of the gave at 883. it According See id. to and the economic realities dictate other- a to very dupli- limited license wise. See id. 885-86. Consequently we contends, designs. license, That cate it agreement find that the was not termina- to would have allowed make not, therefore, ble at will. We need delve designs of the to use the photocopies or dispute regarding into whether parts, to maintain and but designs replace Raybestos provided separate consideration more. Even nar- nothing accepting ABD’s for the license. license, it row defies construction judgment the district court logic enter into economic to summary judgment granting and a declar- to machine agreement purchase a atory judgment fof and PDSI is repair license that to where the allowed it affirmed. or maintain machine could bе revoked time. if For ABD revoked the KANNE, Judge, Circuit dissenting. license, part then the first time a critical agreement I am in substantial with failed, have broke machine would analysis of thorough legal majority, but essentially Raybestos. become useless to procedural approach required for a are not to make compelled “Businesses summary judgment to causes me bargains, but sensible courts should a reversar is the conclude that and remand bargains demolish economic basis of proper Briefly, following course. be sound if were that would the contract my reasoning. given reading.” natural at 883-84. noted, majority likely it there As the reading natural contract Both the in drafting was a mistake of the con- reality and the nod to economic tract, majori- disagree I however with the interpretatiоn favor an the license ty’s conclusion that the mistake is immate- will. agreement was not terminable at missing rial. Not does the addition of Looking through further of eco- lens con- Raybestos’s serve to limit that, sensibility, nomic we note like the view, has, my in rights, tractual Piano, in parties Baldwin unlike the consequence giving additional rise Walthal, in were parties these dispute. factual engaged long-term ar- interactive Raybes- As involved rangement. the Baldwin Piano deci- out, Act, to points right, Copyright sion the “terminable-at-will” tos’s under the misconception I it is a purposes stated believe designs dupli- The license was silent case determine in the contract. Raybestos’s rights to distribute carries it the cate the machine with both as works thing. make derivative do designs and to to use the the same explicit right no designs. Therе is regime prevent Patent law is the used the designs to provide machine; duplication of the as there *13 anyone. patent, engi- is no bar to reverse no there However, neering machine. the implied right there is an concedes ABD the protects designs, law the and I believe designs the to distribute ma- designs use the make repairing and purposes limited the buyer not within chines for sale end, To maintaining equipment. that the license. agent repair hire an Raybestos could provide and and maintain the case, agent In PDSI this was but, designs, with the as the agent machine, selected service states, Raybestos majority correctly a of the competitor and was also PDSI designs agent to that not “transfer” the long licensor ABD. as acted So PDSI agreement. breaching the license without agent, cоmpeti- an and as a capacity as that lan- majority concludes with- The tor of would remain does not limit the guage of contract right in its and would be no implied there right produc- implied distribution ABD. “transfer” between rather than the tion of individual majority’s opinion The draws the implicitly a But machine as whole. the license If appropriate line of demarcation: PDSI duplication only inso- granted tangible beyond did not obtain benefit — project.” far “as it relates to this The compensation agent— for its service as course, “project,” of was the first machine. possessing designs, from there nowas general, implying In caution is used when “transfer.” rights in a contract and is done inso- In with the principle consonance settled necessary. far Beraha v. Baxter agents to keep princi- are bound their 956 F.2d 1441-42 Corp., Health Care secrets, pal’s ABD and into PDSI entered (7th Cir.1992) (collecting authority). In confidentiality agreement. majority instance, Raybestos’s implied right of upon relies the existence of this contract to beyond should not extend distribution foreclose “transfer” in this manner. making spare replacement parts However, summary analysis judgment on a the first machine because has not necessary open would seem to leave such a of distribution. The admitted possibility thereby acknowledge the —and Falling nuances are irrelevant. out- well a genuine existence of issue of material implied right Raybestos’s use of side fact—of the confi- whether PDSI breached designs against ABD on a bid re- dentiality agreement by misappropriating machine, effectively permitting placement to reverse the re- designs engineer plate the clutch enter assem- placement Raybestos. machine for sale to bly Empire Corp. Gas business. Cf. indicates did benefit record PDSI Co., American 840 F.2d Bakeries plans from the and did the clutch (7th Cir.1988) enter (noting in a re- plate assembly business. PDSI would contract, may buyer quirements capi- expense by have saved a us- price on a considerable increasing talize rise his ing designs engineer ABD’s “requirements” goods in order to resell the reverse seller). profit compete against at a new rather start from machine than possession That PDSI took scratch. and submitted the low
machine’s (lower machine replacement
bid for the $250,000), a rea- supports
than ABD’s just that PDSI did that.
sonable inference addition, stood to gain bid, long kept
any low so
the dark. appropri
It to whether it is boils down
ate, judgment, summary on to determine replacement low bid PDSI’s existing
machine possession and its *14 merely coincidental
machine’s
in the of a to the face reasonable inference
contrary. contrary That inference should in a light
have been taken most favorable non-moving party Mag —ABD. Co., in v. Monsanto 420 F.3d
Cir.2005) (citation omitted). re There fact, genuine
mains a issue material summary
I the grant would reverse
judgment proceed and remand for further therefore, I,
ings. respectfully dissent. LEE, Plaintiff-Appellant,
David KEITH, capacity
John his official
Chairman of the Illinois Board State Elections, Smart, offi Jesse in his capacity
cial as Vice-Chairman Elections,
Illinois Board State Rednour, capac
Wanda in her official
ity as a State member Illinois Elections, al.,
Board of et Defendants-
Appellees. 05-4355.
No. Appeals,
United States Court of
Seventh Circuit. June
Argued 2006. Sept.
Decided