Author Archives: Mark Anderson

About Mark Anderson

I am an English solicitor (attorney) who qualified originally as a barrister in 1983. After working as an in-house lawyer and with Bristows in London, I formed Anderson & Company in 1994. Our offices are based in Oxfordshire, on the banks of the River Thames, 50 miles west of London. Outside work, I enjoy walking and canoeing. I met my wife Sara whilst cycling from Land's End to John O'Groats (1,100 miles) in 1991.

IP Transactions course brochure 2015

ip_transactionsThe brochure for the 2015 outing of our annual course, Intellectual Property Transactions: Law and Practice, is now available. This time, the course is being run slightly later in the year, from 20-24 April.

Run by the Institute of Brand and Innovation Law at University College London, and delivered by approximately 25 experienced practitioners, this course has won two awards: (1) an English Law Society Excellence Award (Highly Commended), in the learning and development category, and (2) a UCL Provost’s Teaching Award, in the CPD course category.

The course provides 29 CPD points and is designed for newly-qualified IP lawyers. It also attracts lawyers, patent attorneys and licensing executives from the UK and overseas. Past attenders have included lawyers from South America, North America, Europe, Japan and Australasia. The course seems to be unique in providing in-depth analysis and discussion of different types of IP transaction, and in combining rigorous legal content with very practical and practice-based training. The course is followed by a voluntary exam. People who pass the exam receive a Certificate in IP Transactions.

An application form for the course can be found at the end of the brochure.

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Give me a child until he is seven and I will show you… a copyright expert?

Lenin reads Copyright Education and Awareness - he seems to be impressed!

Lenin reads ‘Copyright Education and Awareness’

Apologies to the Jesuits among you, for mangling the quotation that is attributed to St Ignatius of Loyola. Or to his mate, St Francis Xavier. He/they supposedly said  “Give me a child until he is seven and I will give you the man”. Or something similar. Presumably in Latin. Or Spanish. Or perhaps Catalan or French.

Alternatively, we could adapt the quotation attributed to Lenin: “Give me four years to teach the children and the seed I have sown will never be uprooted.”

In other words, the best way of getting your point across is to teach it to children for several years, and the lesson will stay with them during their adult lives.

The UK Prime Minister has an Intellectual Property Adviser, Mike Weatherley MP. Or rather, he did until recently. One of Mike’s last acts before he resigned from the role was to publish a Discussion Paper, Copyright Education and Awareness. Its main recommendation comprises a paragraph of text that uses too many buzz words for IP Draughts’ taste. They include: “strategic partnership”, “sharing of best practice”, “strategic outreach plan”, “various stakeholders”, “cross-industry working group”, “consult on strategic vision”, “review progress”, and “working together”. Blah blooming blah. The essence seems to be that Government should develop a plan to raise public awareness of IP, and then convene a committee every 3 months to see whether the plan is working. No harm in that, you might think. Why couldn’t they just say it simply?

More interesting, in IP Draughts’ view, are the more detailed or “additional” recommendations, which can be summarised as follows (summary followed by IP Draughts’ reaction):

  1. Measure. Develop mechanisms to measure the public understanding of IP and how they behave in relation to IP (eg do they download music illegally). [Seems sensible.]
  2. Introduce IP education into the school curriculum. [Potentially a good idea, if done well.]
  3. The BBC should create a copyright education programme using online, on-air and face-to-face channels. [Pie in the sky. BBC is not there to lecture people on IP.]
  4. Provide good information. This recommendation reverts to buzz words like “obvious synergies”, so IP Draughts can’t be bothered to summarise it. [Yawn.]
  5. Create a fund to incentivise SME digital businesses to educate citizens about IP rights – again too many buzz words for IP Draughts’ short attention span. [Yawn.]
  6. Create a new IP Education Coordinator or a broader IP Director General role. In other words, there should be an IP czar, similar to the one in the USA. [Hurrah! Or Yawn! Can’t decide which.]
  7. Produce an annual Copyright Education Evaluation Report. If this doesn’t achieve the desired results, introduce a statutory duty on the Secretary of State to “inform and educate on IP and copyright awareness”. [Yawn.]

media studiesThe most substantive and realistic of these recommendations, at least in IP Draughts’ eyes, is the proposal to increase education in schools and universities.  The report discusses some current initiatives in this area, such as the development of copyright materials for inclusion in an AS/A level course in Media Studies. It also records, with regret, the Government’s refusal to include IP law as a subject within the national curriculum.

The report recommends various steps to increase understanding of IP by school pupils, university students, and their teachers. Many of these initiatives are being led by the UK Intellectual Property Office. In general, they are at an early stage.

IP Draughts’ solution would be more radical. He would set up an IP training academy, completely independent of government, and led by experts in IP and education. But who would pay for it?

As with much of government life, successful education of the public about IP will require the expenditure of money. Is public money to be spent on developing educational materials? Who will do it and at what price? Should this be a priority at a time of economic hardship?

IP Draughts has some direct experience of this subject, having been commissioned a few years ago by the European Patent Academy (part of the European Patent Office) to develop “train the trainer” course materials on IP licensing. He was subsequently commissioned to deliver the course, both in a traditional meeting and in series of online, one-hour courses run from his office, using a computer, camera and microphone. Three things have stuck in IP Draughts’ mind about those experiences. First, that the Academy was a well-resourced body in its own right, with its own specialist staff, and not a secondary activity of a Patent Office. Secondly, there was a decent fee for writing the materials (after IP Draughts publicly tendered for the work). And thirdly, the materials went through an intensive peer review process, with 3 reviewers, which greatly enhanced the quality of the slides and notes.

nittyIP Draughts wishes the UK government would take a similar approach to the EPA, but fears that the focus currently is too much on the political and administrative sides – the high-level aspiration and political process – and not enough on making sure that initiatives are well-thought-out, run by professionals, and properly funded. It was ever thus.

 

 

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Trip to New Zealand and Australia

its only the hair on a gooseberry, That stops it from being a grape.

“…it’s only the hair on a gooseberry/ That stops it from being a grape.”

IP Draughts continues to plan and book his trip to the Antipodes, which will take place between 15 January and 7 February 2015.

The main purpose of the trip is social – to take his mother to visit some relatives in Wellington and South Island, New Zealand – but he is also planning to fit in some paid speaking engagements in New Zealand and Australia. He is delighted to have been engaged (by a reader of this blog and her colleagues) to run one-day, in-house courses in both Sydney and Melbourne, versions of his Advanced IP Licensing course.

There is still an opportunity to give a talk or two in New Zealand, but despite several promising leads, nothing has materialised so far.  Topics could include contract drafting, “legal” clauses in contracts, or IP transactions. Possible dates would be:

Dunedin – Monday 26 or Tuesday 27 January

Wellington – Wednesday 4th or Thursday 5th February

Auckland – Thursday 5th or Friday 6th February

Please let Mark know as soon as possible if you would like to discuss running a course on any of these dates, as final bookings are now being made of flights and hotels.

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Let’s get rid of the ratchet men

two wayLast week, IP Draughts co-presented a two-day course on clinical trial agreements. With practice-based courses, the discussion becomes interesting, at least for the presenter, when the people attending provide their own insights on the topics being discussed. This happened in abundance last week, and IP Draughts is grateful to all who contributed.

A theme that emerged in this course was whether a company’s template agreements should focus solely on providing maximum protection for the company, or instead should try to provide a balanced set of reasonable obligations on both parties.

What prompted the discussion was IP Draughts taking the class through the terms of a US biotech company’s template clinical trials agreement. The terms were excessively one-sided, giving the company maximum flexibility to tell the investigator what to do or not do.  They seemed to ignore the fact that the investigator has certain responsibilities under EU regulations to be responsible for its own actions and to seek consent from regulatory bodies (eg ethics committees), rather than just dance to the sponsoring company’s tune. It was interesting to compare these terms with the terms that are generally used in the UK, as issued by the Department of Health and negotiated between interested parties. The latter terms are much more pro-investigator, but they also try to address issues of concern to both parties including their regulatory obligations.

The wider issue is whether a company should have standard contract terms that seek to provide maximum protection to the company and largely ignore the interests of the other party. This type of approach is common in some market sectors. In M&A and some financial transactions, it seems that a buyer/investor will often wish to include in the agreement as many provisions as possible to protect its interests and minimise its risks. Or at least, they won’t tell their lawyers to minimise the use of legalistic contract terms, which may amount to the same thing.

This seems to have led to the proliferation of practices that, in other market sectors, can seem ludicrously aggressive and one-sided, eg demanding indemnities in respect of all breaches of warranty, having a party “represent and warrant” (supposedly to give additional remedies in tort as well as contract), and so on. It seems that lawyers in those sectors rarely stand up to their clients and tell them to stop being extreme and to stick to some simple, balanced terms. That just isn’t “done”. A forratchetmer colleague of IP Draughts, a corporate lawyer, called the lawyers who indulged in this type of competitive negotiation “ratchet men”, because they would squeeze out a concession, bank it, then move on to demand another, moving only in one direction like a ratchet mechanism.

In IP Draughts’ world, lawyers are usually “on tap” rather than “on top”. In other words, they are there as a resource but do not usually dictate the structure and agenda of negotiations. In this world, there is pressure to keep contract terms as simple as possible, and not to take extreme positions, because it is not efficient and does not lead to harmonious negotiations. A factor that possibly influences the negotiations is that these contract relationships tend to be long-term and require cooperation between the parties, rather than being a one-off in the way that an M&A deal tends to be.

IP Draughts suspects that some in-house lawyers, influenced perhaps by their training in large law firms, consider it to be their job simply to draft terms that protect their organisation, and that including terms to protect the other party is not part of their brief.

IP Draughts would like to encourage all lawyers to draft balanced documents, and all clients to give clear instructions that this is what they expect. By all means weight them to some extent in favour of your client or your employer, but not at the expense of seeing the other party’s point of view or addressing their legitimate concerns.

 

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