Direct comparison
Option Agreement vs. License Agreement
An option agreement grants only the exclusive right to negotiate a license. A license agreement grants actual rights to use the technology. Key differences.
Side-by-side comparison
| Dimension | Option Agreement | License Agreement |
|---|---|---|
| What it grants | Exclusive right to negotiate a license within a set period | Actual rights to make, use, sell, or sublicense the technology |
| Right to use the technology | No, unless a separate evaluation agreement or license is also in place | Yes, within the scope negotiated (field of use, territory, exclusivity) |
| Typical duration | A few months to about a year, sometimes longer with milestones | Can run for the life of the underlying patent or longer for know-how/trade secrets |
| Typical fee structure | Option fee plus reimbursement of patent prosecution costs during the option period | Upfront fee, running royalties, milestone payments, and/or equity, depending on terms |
| Exclusivity | Exclusivity applies to negotiation only -- the institution cannot shop the technology to others during the option period | Exclusivity (if any) applies to the actual commercialization rights granted, defined by field of use and territory |
| When it is used | Early-stage companies, often pre-financing, that need time before committing to full license negotiation | Once the parties are ready to commit to defined commercialization terms |
| What happens at expiration | If unexercised, the institution is generally free to market the technology to other parties | Governed by the license’s own term, termination, and diligence clauses |
| Relationship to an evaluation agreement | Often signed alongside or after an evaluation agreement, which separately grants limited testing rights | Typically the end point of the pipeline, following evaluation and/or option stages |
Common questions
FAQ
Can an option agreement include any right to use the technology?+
Not by default. An option agreement’s core grant is negotiation exclusivity, not use rights. If a prospective licensee also needs to test or benchmark the technology, that typically requires a separate evaluation agreement.
Is an option agreement the same as a right of first negotiation or first refusal?+
Related but not identical. A right of first negotiation typically requires the institution to negotiate with the option holder first, without necessarily foreclosing negotiation with a third party if those talks fail. A fully exclusive option forecloses negotiation with anyone else during the option period. The exact scope depends on the specific agreement’s language.
Do institutions charge for an option agreement?+
Most option agreements include an option fee plus reimbursement of the institution’s patent prosecution costs during the option period, since the institution is giving up the ability to shop the technology to other prospective licensees for that duration.
Going deeper
