Why won’t industry use standard research agreements?

Sir Richard Lambert

Sir Richard Lambert

IP Draughts has been studying a report, commissioned by the UK Intellectual Property Office and published this week, that has the catchy title, Collaborative Research between Business and Universities: The Lambert Toolkit 8 Years On.

The report makes clear that a surprisingly large number of people have not heard of the Lambert toolkit, or the Lambert agreements, so a quick explanation is in order.

What are the Lambert agreements?

Some years ago, Sir Richard Lambert chaired a committee that negotiated some standard research agreements for use between UK universities and industry.  In fact, there were two committees:

  • an inner committee consisting of 4 university representatives, 4 industry representatives (including Malcolm Skingle of GlaxoSmithKline), and a solicitor to do the drafting – Christine Reid; and
  • an outer committee to oversee the process, which included IP Draughts.

toolkitThe output of these committees – the toolkit – eventually comprised:

  • a set of 5 alternative, standard research agreements (two-way agreements between a sponsoring company and a university), known as Lamberts 1 to 5;
  • another set of 4 alternative, multi-party research collaboration agreements, known as Lamberts A to D;
  • an online “decision tree” to help parties decide which of the alternatives was most suitable for their circumstances
  • guidance notes; and
  • a selection of other agreements that had not been formally negotiated by Lambert but were posted on the Lambert website as a useful resource

These materials are nowadays hosted on the UK Intellectual Property Office website here.

Number 4 haircut, sir?

Would Sir prefer a number 4 haircut?

The alternative agreement versions mostly provide different IP terms, using the same underlying document.  For example Lambert 1 is very pro-university on IP issues, while Lambert 5 is the most favourable to the company on IP issues.  From the report, it seems that Lambert 4 has become the most popular version over time.

What does the report say?

The recently-published report reviews the extent to which the Lambert agreements are used in practice, and what people think about the agreements and other materials.

Despite a sinking feeling when he saw that the report ran to 100 pages, IP Draughts persevered and speed-read most of the document.  He found much of it surprisingly interesting.  It confirms what many practitioners in this field probably know already, on the question of how parties go about drafting and negotiating research contracts.

Bucket full of puppies (limited relevance to post)

Bucket full of puppies…            (limited relevance to post)

Saying that is not to diminish its value.  Policy-makers in the IP and competition law fields are forever asking for “evidence-based research”, which is often quite difficult to find.  The assertions of IP lawyers, in the absence of such research, seem to be mistrusted as special pleading – usually quite wrongly, in IP Draughts’ view.  This report provides buckets-full of evidence-based research.  100 pages of it, to be precise.

Some points that caught IP Draughts’ attention included these:

  • People who know about the Lambert agreements mostly find them useful.
  • Very few people use them as a starting point in negotiations.  Instead, they offer them as a compromise proposal or offer a document that incorporates elements of Lambert.  This goes against the vision of the Inner Lambert Committee who wanted them to be used without changes on a take it or leave it basis.
  • They are more popular in universities than in industry.  Some industry sectors (eg pharmaceuticals, ICT) are content to use them (as a compromise) but other sectors, including engineering, energy and defence, take a more aggressive stance on IP issues and don’t like the “middle of the road” approach of the Lambert agreements.
  • The online decision guide isn’t used much
  • The fact that the agreements are on a Government website adds to their credibility

take it or leave itAll of this suggests to IP Draughts that people are not yet ready to move away from an approach in negotiations where you start off with a proposal that is better than you expect to achieve, and then compromise.  The Lambert vision was designed to remove that process and go for a more scientific approach.

IP Draughts’ personal view is that the Lambert agreements are not perfect, but for routine research agreements there may be a significant commercial advantage in using a standard document and avoiding an expensive and time-consuming negotiation process.  This is a more relaxed view than many lawyers seem to take.  Obviously in individual cases it may be important to go for a more tailor-made approach rather than use the off-the-shelf Lambert document.

2 Comments

Filed under Commercial negotiation, General Commercial, Intellectual Property

2 responses to “Why won’t industry use standard research agreements?

  1. I find the suggestion that anyone with money on the table would defer to terms that Eight Wise Men came up with, in total ignorance of the specific deal, to be faintly risible. Perhaps others do as well, which may be why Sir Richard’s handiwork has gone under-utilized.

    I suppose that if one party were at a distinct bargaining disadvantage and Lambert 4 were better than a total hosing, there might be some appeal in assenting to it. Why the advantaged party would do so, apart from a sense of noblesse oblige, eludes me.

    In the US, and I suspect in the UK as well, residential and commercial leases are often made under standard form documents, generally here prepared by organizations of real estate agents. In most cases, though, the standard terms are supplemented with a longer or shorter rider that either adds to or varies the printed terms. One size never fits all.

    • Vance, the approach you describe may be one reason why US universities were thought to need the protection they got under the Bayh-Dole Act. The result has been that all US universities, in my experience take a standard approach: we own the resulting IP, you get a non-exclusive internal use licence plus an option to negotiate an exclusive commercialisation licence. This is very protective of US universities but is driving companies away, sometimes to the more flexible approach of UK universities.

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