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

[Rjack]

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".

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=fedclaim&vol=1999/97476c

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"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."

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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?

Sincerely,
Rjack