What shall we discuss today?

IP Draughts’ pharmaceutical pencil collection

IP Draughts can’t decide what to write about, on this sunny Spring morning.

The UK IP world is agog with the news of the reported IP dispute between Marks & Spencer and Aldi supermarkets, concerning an alleged infringement of rights in the Colin the Caterpillar cake. Pass.

Still on IP Draughts’ desk is a copy of the Court of Appeal judgment in the TuneIn case. Try as he might, every time he tries to read the judgment he falls asleep. So a report on it will have to wait. If any reader would like to prepare a short (but accurate) article summarising the decision, and its implications for website streaming of radio stations, IP Draughts would be happy to consider posting it on this blog.

There are no juicy IP contract disputes on BAILII this week.

So, IP Draughts will have to fall back on an old favourite: AstraZeneca’s Covid supply agreements. Here is a link to a redacted text of the UK supply agreement on a CNN website. CNN were apparently directed to the text on a UK government website, following a freedom-of-information request.

IP Draughts is amused to see that the UK government gave itself the power to publish this contract in clause 17.7. It apparently did so last year, but no-one noticed the contract on the government’s website.

The contract includes a now-familiar (see the equivalent EU contract) definition of Best Reasonable Efforts, in clause 1.1.

As a reader has previously noted on this blog, the contract is with AstraZeneca UK Limited, whereas the EU version is with a Swedish AZ company. This could be viewed as a form of compartmentalisation of obligations. From a contractual perspective, it may be difficult for a customer to demand that its AZ supplier divert stock that was destined for another customer, if that stock is under the control of a different AZ company. Perhaps such niceties don’t matter too much when the pressure being applied by the European Commission and others is at a political, rather than a contractual, level.

From a quick read through the contract, its look and feel is more familiar than the EU version, perhaps because the parties negotiating it (and particularly their lawyers) were both from the same jurisdiction. Or perhaps because the UK government customer took a more pragmatic view on risk issues than the European Commission. Whatever the reason, IP Draughts’ view continues to be that extensive risk allocation terms in contracts are of marginal benefit, and that what really matters is establishing a good relationship with a reliable supplier.

Podcast of this article here.

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