Scenario 1: A university employs specialists to negotiate intellectual property (IP) contracts. But they tend to be relatively junior in the university hierarchy, and don’t have the ultimate decision-making authority, particularly if the academic most interested in the contract objects to their approach. Decisions are pushed upstairs to senior management who have little or no understanding of IP or contractual issues.
In some cases, the university thinks it has solved this problem by forming an IP committee to take decisions. But the members of the committee, if they have any understanding of IP, perceive it from a very high level, and tend not (in IP Draughts’ limited experience) to fill the professionalism-deficit. Alternatively, some universities appoint a senior member of the management team to be responsible for enterprise activities; however, the person who is chosen tends to be an academic rather than a professional. A Deputy Vice Chancellor for Enterprise once complained to IP Draughts that he hated looking at contracts. IP Draughts is still mentally reeling from this statement, years after it was made.
Scenario 2: A trade organisation lobbies on a wide range of issues that affect their members. An IP policy issue comes up. Somewhere deep in the organisation is a person or team who understand IP, and they make sensible suggestions. But the lobbying is fronted by people who don’t have a deep understanding of the subject. They think they can handle it with their usual toolkit of personal charm and a two-page briefing note. But they don’t understand the subject well enough to do a competent job.
Scenario 3: A commercial lawyer, who has no real experience of thinking about and negotiating IP issues, negotiates an agreement that incorporates IP ownership and licensing terms. Unless they are very careful, they are likely to do a sub-optimal job on the IP terms. They will probably modify a template that they have found that contains IP terms. In one case that is on IP Draughts’ desk at present, they have used a published precedent that IP Draughts and his colleagues drafted, and some of the original wording of the precedent lies undisturbed, surrounded by devastation.
In the business community, there have been debates about whether company boards of directors and senior management teams should include information technology (IT) specialists, given the importance of IT for many businesses and the complexity of the subject which makes it difficult for a non-specialist to understand. There are many published examples of large organisations spending millions on IT systems that don’t work. In US corporations, which sometimes appear obsessed with job titles that subtly discriminate between levels of seniority (president, vice president, executive vice president and so on), this debate has sometimes focussed on whether corporations should have chief information officers, or CIOs.
This debate has some similarities with the issue that faces IP practitioners. IP Draughts knows dozens of IP lawyers who have the necessary IP experience and commercial insight to make high-quality business and policy decisions, whether in the context of universities, commercial companies or trade organisations. But rarely does he see them in general management roles. Perhaps they are not suited to those roles. When it comes to decision-making on IP-related topics, perhaps general managers should recognise their limitations, and delegate authority to the professionals.
How this should be done is not always clear. It is probably not workable to expect external law firms to take business decisions on behalf of their clients. An alternative model might be for organisations to delegate decision-making authority on technical subjects to an individual or committee. This could work if (1) genuine professionals are appointed, who have the necessary professional skills to understand the subject and take sound decisions on behalf of the organisation, and (2) their decisions are supported by the body that appointed them.