confirmatory assignment deed

• Ten Questions about Confirmatory Assignments

1. Depending upon the applicable IP rights and related law of contract of the jurisdiction, to what extent can an unwritten agreement validly assign IP rights? 2. Assuming that an unwritten assigment is valid, what is the evidentiary showing that is required? 3. Can one record an unwritten assignment on, e.g., the appropriate patent or trade mark registry? If so, what proof is required? 4. Is the evidentiary showing different in connection with establishing the validity of the assignment in the context of a transaction? 5. How can a purchaser receive sufficient comfort about the validity of the assignment, or is it a matter of risk allocation depending upon the positon of the parties? 6. Does the standard of evidence to establish an unwritten assignment differ once again in the context of a court proceeding? 7. Does the standard of evidence to establish an unwritten assignment differ yet again iin the context of taxation? 8. Is a confirmatory assignment a form of ratification? 9. If it not a form of ratification, what is the proper legal characterization for the agreement? 10. In light of all of the foregoing, does the confirmatory assignment confer any benefit to the parties, other evidentiary or substantive?

13 comments:

Confirmatory assignments are frequently used where a written assignment already exists, but the parties do not want to disclose that document because it contains sensitive information (e.g. payments, etc.). In addition, they are often used to confirm an 'automatic' assignment (e.g. from an employee to his/her employer). The latter may be useful, for example, when submitting a US application with UK inventors.

In the United States, this is a statutory question: "Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing." 35 USC Section 261. Your questions are far more interesting as applied to licenses or servitudes more generally. Based on hundreds of years of common law, one would imagine that all personal property, including patents, would require encumbrances to be publicly recorded for them to be enforceable on subsequent purchasers for value without actual notice. In fact, equitable servitudes on personal property were not enforceable at all at common law. As far as I can tell, patents present a unique exception to this history. For that reason I have wondered whether it is fair even to call patents property -- despite their being deemed so by statute. On my view, this is the most underappreciated obstacle to the emergence of a healthy market for patents. Lemley and Myhrvold suggested years ago a solution to the problem -- namely, of requiring the public disclosure of all assignments and licenses. That seems to have gone nowhere thanks to an incomplete understanding by current stakeholders of how such a transition would result in an entirely new market equilibrium, or at least to the general desire for incremental rather than radical changes to the status quo.

Confirmatory assignments are commonly used to record assignments in writing where the commercial terms of an assignment are to remain confidential. I cannot think of many instances where I would be happy to rely on a written confirmation of an unwritten assignment. It is my understanding that in most common law countries an assignment must be in writing for it to be legally effective, otherwise at best your unwritten assignment may only transfer an equitable interest in the relevant IP. A type of assignment document I have occasionally seen and used is the assignment that is both operative and confirmatory. In other words, "I confirm that I assigned, but if that assignment wasn't legally effective for any reason then I hereby assign". It isn't ideal, but sometimes it's the only way to fix a break in the chain of title when you really don’t think you can rely on that unwritten assignment.

3. Can one record an unwritten assignment on, e.g., the appropriate patent or trade mark registry? If so, what proof is required? Yes, that is possible in certain jurisdictions. At the most you would need a date of assignment and particulars of the assignee and the assignor. The relevant forms necessary to record the assignment are prepared by the agents and signed on behalf of the assignee. Example, Singapore

Rob hit the nail on the head. They are used to simplify matters in circumstances where the parties may have been better to have signed short-form agreemnts. A party will often not want to disclose a document with all of the juicy commercial terms, so a confirmatory assignment may be used. A final (arguably erroneous) use may be where a party has, to settle a matter, assigned a CTM under cover of a letter or unilateral agreement signed only by the owner. In the case of a CTM, the assignment has to be signed by both parties to be valid. Therefore, whilst the mark may be assigned in the head of the previous owner, something more needs to be done to validly assign. Arguably the follow-up is not confirmatory in those circumstances, but I've seen the document that followed described as confirmatory.

Associated with the issue of confirmatory assignments is the issue of assignment documents with a purported "effective date" earlier than the date of execution of the document. In jurisdictions where rights in an application can only be assigned in writing, the writing requirement was then not fulfilled as at the "effective date". This may be particularly important in relation to priority claims.

I have seen such Confirmatory Assignments used as evidence supporting a transfer request before the EPO, but it wasn't my job to question them even though the whole procedure looked quite fishy to me. Once upon a time there was a nice little company A which got gobbled by company B. One year later, company B was in turn purchased lock, stock and barrel by company C. A, B and C were in three different countries. A's European representative kept prosecuting the EP cases, but only bothered to file a transfer request when a given application was just about to mature into a grant, providing in most cases a confirmatory assignment drafted by an US notary public as evidence. The document stated that A's IP was transferred to three entities Ca, Cb and Cc, which are all presumably 100% subsidiaries of C. I infer that the applications are jointly owned by all three companies. The assignment is signed by Ca, Cb and Cc's officers as well as the notary. The document couldn't have been signed by A's officers, since A did not exist anymore at that point. There is no mention whatsoever of company B either , so the document did not describe what actually happened, since A could never have dealt directly with C. The representative's cover letter only requests transfer to company Ca, leaving Cb and Cc out of the picture, and Ca is the only name entered in the EPO's register. I googled up a bit and I found out that B wrote in its ultimate annual that it now owned all of B's IP, and C later stated in its own annual report that B's IP was now located in yet another subsidiary Cd, different from Ca, Cb or Cc. In one case the Umschreibestelle questioned the confirmatory assignment in that in only bore the signature of one of the parties. The representative adamantly replied that the assignment should be taken at face value and that's it. The EPO did not insist, and took down the transfer - in Ca's name only. In one of the applications this examiner was bone-headed enough to be minded to consider a refusal, prompting the representative to file a "divisional" application in order to keep the show going. The weird thing was that the "divisional" was in A's name, even though it no longer existed for years. The new application was eventually abandoned, so all the interesting questions which arose did not need to be answered. From the preceding, I think I'd start kicking and yelling about who actually owns a patent (and thus entitled to initiate action) if I were ever dragged before court in an infringement action where a confirmatory assignment was involved. The standard for proving a transfer of rights appears to be much lower as to the right to transfer of an opposition. A confirmatory assignment may appear a practical shortcut, but it could be a false saving. As to the argument that a confirmatory assignment can keep details secret, I don't think they're worth the risk either. I've seen IP sale contracts accepted as evidence for a transfer before the EPO where more black ink was poured to obscure passages than the CIA ever used when declassifying a document. BTW, one of these contracts involved yet another of C's subsidiries transferring its IP to numbered entities conveniently located in tax flexible territories.

Thanks for all of your great comments. In one off-site communication on the topic yesterday, I suggested that confirmatory assignments are among the "dirty little secrets" of IP practice. She wrote back that in fact they are the "dity little not-so-secrets" of IP. I suspect that we are both right.

Something that does not appear to be widely appreciated is that the box for the date of agreement on EPO Form 1002 is provided for the convenience of the applicant only, there being no requirement in the EPC to provide a date. I have often filed forms with no date where the information was not available, and no objection has ever been raised. I have only seen this explicitly stated in the answer to question 80 in Dr. Günter Gall's classic book for EQE candidates "European & International patent applications: questions and answers" [ISBN 0-85121-555-6; 1989 edition]. Dr Günter Gall was a Director of the EPO and evidently wrote with authority. I have had more knowledgeable inventors query the appropriateness of signing any sort of assignment of rights that he doesn't own because the invention belongs to the employer by virtue of UK law, and have then had to explain the USA [for example] doesn't recognise this aspect of UK law. Such assignments made in respect of a first filing are certainly useful when subsequently filing in the USA if the inventor is no longer contactable or become uncooperative, eg due to imminent redundancy.

Anonymous' knowledgeable inventors have a point, and this has always been my rationale for obtaining confirmatory assignments. It must surely be a fundamental principle that one cannot assign what one does not own, so a written assignment from an employee to an employer that already owns the invention by terms of a contract of employment must surely be void. The problem is not solved by writing the employment contract in such a way as to place the employee under an obligation to assign, because a subsequent assignment to another party, while being a breach of contract, will not necessarily enable the invention to be reclaimed by the employer (see, eg Stanford v Roche 583 F.3d 832 (Fed. Cir. 2009). As I understand it, the US law relating to employee inventions is basically the common law. The issue is not that the USPTO will not recognise that the employer owns the invention, rather it is the specific requirement that the inventor assign the rights reflected in the particular patent application, ie that a suitable assignment cannot be completed until the inventor has the actual filed specification and claims before her. A general assignment of the invention, and all notional future rights, will not suffice for this purpose. However, an assignment of a PCT application designating the US is fine (although it may take a little effort to persuade the USPTO to accept a document that is not in its standard form). An unavailable or uncooperative inventor remains problematic even if you have a suitable assignment document, because the USPTO cannot accept the filed application until it has an inventor's declaration, or a petition has been granted to allow the application to be accepted without the signed declaration. Though not a US attorney, for my sins I have found myself with clients in this situation, and it can be a lot of work to resolve.

"This and the related topic of failure to agree or document assignment of IPRs arise all too frequently. I have been faced with the challenge of "I paid, so I own" throughout my career. Here are 10 thoughts on this topic: 1. No one should believe that the law will come to their rescue if they do not document a written assignment and have it signed by the assignor and the assignee. 2. Assignments of IPRs are a perfect example of lack of global harmonisation. There is huge discrepancy between national laws as to what formalities are required - few require more than a written assignment signed by both parties. 3. The greatest density of disputes is between consultants and the corporations who hire them. The expectation is that IPRs in the "work product" automatically transfer. Big mistake. 4. English law enjoys equity, and can be persuaded to find an intention to assign (aka an equitable assignment). Hoping for this result is a lottery. In other parts of Europe, the odds are worse. 5. The position is not as random within an employee/employer relationship, because generally the first owner is the employer. However, at the edges ("course of employment") it is well worth documenting the position. In this context, do not assume that ownership is the end of the matter. Always think about attribution issues (such as moral rights) and economic reward (for exceptional contribution). 6. Failure to document the IPR position is statistically likely to create a significant commercial issue downstream. I have personally seen IPOs delayed, joint ventures stall and tens of disputes that frustrate and delay commercial exploitation. 7. The consolation prize in an ownership dispute is typically a licence. Within this one word, is a world of pain as the parties debate scope (field of use), term (for a project to perpetual), ambit (exclusive to non-exclusive), not to mention royalty. So whilst ownership is undoubtedly first place, bottom of the class will not get much at all. 8. Banks and investors still struggle to understand and value IPRs in the same way as tangible assets such as property and stock, so they scare easily. If chain of title and ownership is not clear, expect them to have significant concerns in all other areas such as validity and infringement. 9. Joint ownership looks like a good compromise. Normally it isn't. There is no global uniformity on the rights conferred on joint owners - and even within a jurisdiction it's different between the various IPRs. 10. Which means that I'm normally just so relieved to receive a confirmatory assignment, that I seldom have the energy to think about Neil's 10 questions - but now I will!"

Many interesting comments on assignments. Here is a further related issue, perhaps basic compared to a confirmatory assignment under the original fact pattern. Assume the inventor has executed an assignment to her employer for a US provisional patent application that includes assignment of all later applications, using standard language regarding assigning international applications, US, non-US applications. The assignment properly assigns the right to claim priority. Then a PCT application is timely filed that claims priority to this provisional. The PCT application includes new disclosure in the specification, including new examples, and new claims. Is a second assignment needed or does the assignment of the provisional suffice? For all jurisdictions? If a new assignment is needed, how is it worded to avoid the issue of 're-assigning' what has already been assigned in the provisional assignment? Seems one can only assign rights one has not already assigned away.

In answer to the last comment, yes, a new assignment is needed. An assignment has to relate to an invention, and if that invention is new, it cannot have been previously assigned. Equitably, yes, but then we argue over whether the new invention is actually covered.

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The deed I need is not on your list!

There are many other types of deeds, such as warranty deed, joint tenancy deed, easement deed, trust deed, etc. In some states, these may be considered separate deed types, but in California, these are usually just customized grant deeds.

In a warranty deed, the grantor promises to pay for any lawsuits or damages due to undisclosed ownership disputes. In California, title insurance usually covers such disputes.

Other types of deeds, such as joint tenancy deeds, corporation deeds, easement deeds, or mineral rights deeds, can be created by customizing our grant deed format by downloading the RTF (word processing) version from our website. Consult an attorney or come to the Law Library to research appropriate wording.

Step by Step Instructions

Locate the current deed for the property.

You will need information from the current deed. If you need a copy of the current deed, contact the Recorder’s Office where the property is located. In Sacramento, call (916) 874-6334.

Determine What Type of Deed to Fill Out for Your Situation

To transfer ownership, disclaim ownership, or add someone to title, you will choose between a “grant deed” and a “quitclaim deed.” Spouses/domestic partners transferring property between each other may choose an “interspousal deed.”

Here is a flow chart to help you choose:

Determine How New Owners Will Take Title

If there is more than one new owner, you are moving the real estate into or out of a trust, or the new owner is married, the form of title can have important effects.

One, unmarried owner: leave blank

If there is only one new owner, and that person is unmarried, title can usually be left blank, although it doesn’t hurt to state something like “a single person” or “a widow” or the like.

More than one owner, owners not married: “Tenants in common” or “joint tenants”

• “Tenants in common” (When one dies, their heirs get their share; probate may be needed. Shares do not need to be equal. Any owner can sell or mortgage their portion.)
• “Joint tenants” (When one owner dies, the other(s) gets their share automatically. Shares must be equal. Any owner can sell or mortgage their portion, but it turns the title into tenants in common.)

If you leave this blank, the default is “tenants in common.”

Examples: siblings who inherit property together, business partners, couples who are not married or registered domestic partners (DP).

Owners are married couple: “Community property,” “community property WROS,” or “joint tenants”

• “Community property” (Both must agree to sell or mortgage the property. At death, a share goes to the surviving spouse/DP and another share to heirs. This will probably require at least a summary probate.)
• “Community property with rights of  survivorship  (WROS)” (Both must agree to sell or mortgage the property. At death, 100% goes to surviving spouse/DP, with no requirement of probate.)
• “Joint tenants” (When one dies, the other(s) gets 100%. Shares must be equal. Either spouse/DP can sell their portion. May receive less favorable tax treatment when first spouse/DP dies.)

If you leave the title line blank, or fill in something like “as husband and wife” or “as domestic partners,” it will be treated as “community property” and a share will go to any heirs instead of all to the surviving spouse/DP.

Owner is married, but property not shared: “as sole and separate property”

If only one spouse/DP owns the property (because that person already owned it when they got married, or it was a gift or inheritance), they can make that clear by using the phrase “a married man/woman/person as his/her/their sole and separate property.” Note : if any money earned during the marriage is spent to purchase, make mortgage payments, maintain, or improve the house, the community owns a share regardless of what it says on the deed.

Property is being transferred into or out of a trust

Many couples use trusts to hold their property. The contents of a trust are technically owned by the trustees. Therefore, when transferring property into a trust, the grantees are the “[name of trustees], as trustees of the [name of trust] dated [date trust was signed].”

When transferring property out of a trust, the grantors are the trustees, identified the same way.

See “ Forms of Title for Multiple Owners ,” below, for examples of how these are entered onto the deed.

Your choice of title can have many effects later, such as when you sell or refinance, if one owner falls into debt, if one owner dies, or if a couple divorces. Some examples of potential effects are:

• reassessment of property raising annual property taxes (since 2022, parent-child transfers are no longer always immune);
• higher capital gains taxes when an owner sells;
• how the property is divided in a divorce;
• whether the property can be liened or foreclosed on for one of the owners’ debts;
• ineligibility for benefits such as Medi-Cal;
• difficulty refinancing if one owner has bad credit;
• lack of eligibility for a reverse mortgage.

If you have questions about which form of title to use, talk to a family or estate lawyer or research your options at the law library.

Fill Out the New Deed (Do Not Sign)

You will find filled-out samples of each type of deed at the end of this guide.

The deed can be filled out online, typed, or neatly written in dark blue or black ink. You will need the following information:

• Assessor’s Parcel Number. (Find this on the current deed.)
• Document Transfer Tax amount or exemption code. (Calculate 1.1% of current market value, or enter applicable exemption.)
• Names of “grantors” (the current owner(s) signing the deed) or of the disclaiming party(ies). (Enter the name(s) as spelled on the current deed.)
• Names of “grantees.” (Enter all the intended owners, including any current owners who will still own the property). Important: If you add a name, that person legally becomes an owner. You cannot change your mind without their signature.
• Form of title the grantee(s) will use. (If no form of title is entered, this will be “tenants in common” for unmarried owners or “community property” for married couples.)
• The legal description of the property. (Find this on the current deed.)

Grantor(s) Sign in Front of a Notary

The notary will charge a fee for this service. You can find notaries at many banks, mailing services, and title companies.

The new owners do not need to sign.

Fill Out the Preliminary Change of Ownership Report (PCOR)

The PCOR is required when property changes hands, to update the tax records. Turn it in at the Recorder’s Office along with the deed. You can download a  Sacramento version of the PCOR  from Cal Assessor e-Forms. Each county has its own version; contact the assessor’s office in the county where the property is located to obtain the proper form.

Record the Deed and File the PCOR at the Recorder’s Office

The Recorder’s Office charges a recording fee (currently $20/first page plus $3 for additional pages). Current Sacramento fees are available at the County Clerk/Recorder’s website . You may also need to pay the Documentary Transfer Tax or a $75 “Building Homes and Jobs Act” fee.

File Reassessment Exclusion Claim, if any, at the Assessor’s Office

When property changes hands, it is reassessed for tax purposes, often causing a sizeable increase in property tax for the new owner.

Certain transfers are excluded from reassessment, including:

• Parent to child or child to parent (“Prop 58 Exclusion” for deaths before 2/15/2022, “Prop 19 Exclusion” for deaths after 2/15/2022)
• Grandparent to grandchild (but not vice versa) (“Prop 58 Exclusion” for deaths before 2/15/2022, “Prop 19 Exclusion” for deaths after 2/15/2022)
• Transfers between spouses or registered domestic partners during marriage or as part of a property settlement or divorce
• Changes in method of holding title that do not change ownership interests (for instance, changing joint tenants into tenants in common)

If your transfer is excluded from reassessment, you may need to file a claim with the County Assessor. For more information in Sacramento, call the Assessor’s office (916‑875-0750) or visit the  Sacramento Assessor’s office website .

Common questions when filling out deeds

Some parts of deeds often need more explanation.

When property changes hands, the county charges a one-time tax of $.55 per $500 of the value of the real estate (1.1%). Some kinds of transfers are exempt. If yours is exempt, enter the Revenue and Taxation code that provides the exemption, and an explanation, then sign. If yours is not exempt, calculate the dollar amount and write it in.

Common exemption codes and explanations:

• Gift  (transferring property, or adding name to property, without compensation) : Code: “R&T 11911” Explanation:“Gift.”
• Living Trust  (transfer into or out of revocable living trust): Code: “R&T 11930” Explanation: “Transfer into or out of a trust”
• Name Change  (confirming name change after marriage or court-ordered name change): Code: “R&T 11925” Explanation: “Confirming change of name, the grantor and grantee are the same party.”
• Conveyances in dissolution of marriage: Code: “R&T 11927” Explanation: “Dissolution of marriage.”

Other exemptions may be available. See the list of  “Transfer Tax Exemptions”  on the Sacramento Recorder’s website.

Building Homes and Jobs Act Fee (SB 2)

There is an additional $75 fee on mortgage refinances and other real estate transactions that are exempt from Documentary Transfer Tax. Some exceptions apply. Contact your county recorder’s office to determine the total amount you will need to pay.

Grantor(s): The current owner or person transferring the property rights or part of the property rights. This is the person or people who will sign this deed.

Grantee(s) : List all people who are receiving property rights from the grantor(s). If the grantor is staying on title, be sure to list the grantor’s name as one of the grantees also.

It’s often helpful to include the grantors’ and grantees’ marital status.

Forms of Title for Multiple Owners

When there is more than one grantee, you will need to specify the form of title. It can also be helpful to do that if a grantee is a married person or domestic partner.

Here are examples of common title phrases:

• One owner, not married: generally no form of title is needed.
• John Doe, A 50% interest, Jeffrey Doe, a 25% interest, and Paula Smith, a 25% interest, as tenants in common
• John Doe, Jeffrey Doe, and Paula Smith, as joint tenants
• Pat Jones-Larsen and Jan Jones-Larsen, as community property
• Pat Jones-Larsen and Jan Jones-Larsen, as community property with right of survivorship (WROS)
• Pat Jones-Larsen, a married person, as their sole and separate property
• Janet and Lewis Campbell, as trustees of the Campbell Family Living Trust, dated January 3, 2017
• Elm Street Books, a partnership
• Janet Smith and Mark Baker, a partnership
• Acme, Inc., a Delaware corporation 
• Initech, LLC, a California Limited Liability Company

Here is a quick reference chart comparing common forms of title.

Name Changes: Updating Title after Changing Your Name

If you change your name (by court-ordered name change, marriage, or divorce), deeds made out to your old name should be updated. Make out a new grant deed from yourself ([new name], who acquired title under the former name [old name]) as Grantor to yourself ([new name]) as Grantee. For example:

Recording a Grant Deed after inheriting property by affidavit

In some situations, after a property owner dies, a new owner receives the property without having to go through probate, just by recording an affidavit. Common examples include people who own the property together as joint tenants or community property with right of survivorship, and people who inherit property via a transfer on death (TOD) deed. For more information, see our guide on Affidavits of Death: Transferring Property without Probate.

The new owner removes the prior owner from the deed by filing an Affidavit of Death of Joint Tenant, Affidavit of Surviving Spouse, or Affidavit of Death of Transferor under TOD Deed.

This is legally sufficient to change ownership, but the lack of a deed showing the new owner’s name can be confusing and lead to problems when selling or refinancing the property. The new owners can make the chain of title (history of ownership) clearer by recording a Grant Deed showing themselves as the Grantee. Here’s how:

Fill out a standard Grant Deed for the property. The new owner will list themselves as both the Grantor and the Grantee. For example, if Chris Jones was a surviving joint tenant on property, after they recorded an Affidavit of Death of Joint Tenant, they could fill out a grant deed like this:

Legal Description

This is the full description of the property, not just the address. It may be brief or very long and full of legalese. It must match the current deed  exactly .

You may want to photocopy the legal description and attach it to the new deed as an exhibit, especially if it is too long to fit on the page.

Transfers after probate proceeding (executor’s deed)

If a piece of real estate is part of a probate case, once the case is resolved the personal representative (executor or administrator) must record documentation showing that it is now owned by the heir or heirs. They can either:

• record a certified copy of the judge’s Order for Final Distribution, or
• record a deed from the personal representative to the beneficiary.

Because the Order is bulky and may have personal and financial information, recording a deed is often preferred. The deed must reference the legal description of the property, the county and case number of the probate case, and the date and title of the order authorizing distribution, state that there is no representation, warranty, or covenant of any kind, and be signed by the personal representative “as executor or administrator of the Estate of ________.”

Here is example wording of a Deed to Real Property that can be customized to fit your needs. The sample is worded for a probate that includes a will. If your situation does not include a will, you would state that you are “administrator of the estate” instead of “executor of the will.”

For More Information

Sacramento County Clerk-Recorder’s Office Sacramento County Assessor’s Office :

• Change in Ownership Reassessment Exclusions
• Proposition 19 (Changes to Parent/Child and Grandparent/Grandchild Exclusions)

DivorceNet: “ Interspousal Transfers vs Quitclaim Deed ” Self-help information about the differences between these two deeds.

At the Law Library

Deeds for California Real Estate ( KFC 170 .Z9 R36, Self-Help) This book, published by Nolo Press, a respected publisher of self-help legal books, is a guide to choosing the right kind of deed, completing the required forms, and filing them. It also discusses related legal issues such as disclosure requirements, community property issues, and tax and estate planning. It contains forms for most transfers of property.

Miller & Starr California Real Estate Forms (KFC 140 .M53) Sections 1:133-1:137 offer language for grant, interspousal, quitclaim, and easement deeds.

California Real Property Practice Forms Manual (KFC140 .A65 C34) A range of sample forms for specific situations such as easements, mineral rights, and more.

PCOR Instructions and Tips In addition to your deed, you will also need to turn in a PCOR (Preliminary Change of Ownership Report). Download the Sacramento PCOR or obtain it from the county assessor where the property is located (the form is different in each county).

Below are samples of the deeds discussed in this guide.

Quitclaim Deed

Interspousal Deed

This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.