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 (now Anderson Law LLP) 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, swimming and canoeing. I met my wife Sara whilst cycling from Land's End to John O'Groats (1,100 miles) in 1991.

Spelling mistakes of intelligent people

A common task for many of us is to review and edit draft documents, written by ourselves or others. Over several decades of practice, IP Draughts has noticed that certain spelling mistakes occur surprisingly often among intelligent people.

Here are some of his favourites.

Principal – often confused with principle

Minuscule – perhaps because the u is spoken as an i.

Supersede – do people think it is somehow related to cede?

Inure – the word is so obscure (but often found in contracts) that spell checkers don’t recognise it.

Therefor – another obscure word in contracts, which  is misspelled as therefore

Effect – this verb often appears as its cousin affect.

IP Draughts is not focussing here on differences between UK and US spelling.

One that took him by surprise this week is that some people make a distinction between when it is appropriate to write judgment and judgement.

Do you have any favourite misspellings?

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Covid 19: “massive data-sharing contracts”

Making the rounds on Twitter is news of the UK government’s release of the “massive data-sharing contracts” that it has entered into with various tech companies, relating to Covid 19.

According to the OpenDemocracy website, this release occurred only after pressure from openDemocracy, and “hours before” they were due to issue legal proceedings to demand their release.

The web page linked above has on it links to what are said to be the contracts that the UK government released. The contracts are with Google, Faculty, Palantir and Microsoft, respectively. According to openDemocracy, the contracts are concerned with an:

‘unprecedented’ transfer of personal health information of millions of NHS users to these private tech firms.

IP Draughts thought it would be interesting to take a look at these contracts and consider what, if anything, they tell us about the processing of health data, and more generally what they tell us about government contracts.

IP Draughts’ first reaction, having downloaded the four contracts, is “where’s the beef”?

Google

The first contract is with Google, and is described as a “confidentiality and consultancy agreement”. It is 3 pages, plus signatures. It says that Google will:

provide technical, advisory and other support (the ‘Support’) to NHSX [two national NHS bodies and the Department of Health] regarding efforts to tackle COVID-19 (the ‘Project’).

No further details of the Support are given. Clause 5 states, inter alia:

The parties acknowledge and agree that it is not their intention to collect, access, share, use or otherwise process any personal data…

Much of the rest of the contract consists of boilerplate clauses, eg on anti-bribery , disclaimer of warranties, etc.

If there is a scandal associated with this contract, it is not evident from the text of the contract.

Faculty

Faculty is allegedly a company that has connections with Dominic Cummings, and has received several government contracts. OpenDemocracy alleges that the disclosed contract is worth £1M.

The contract is headed with the “Crown Commercial Service” name and logo, and is described as a “G-Cloud 11 Call-Off Contract (version 4)” – whatever that means. It appears to be a typically turgid form of government contract, running to 48 pages. Most of it is boilerplate language.

The “call-off contract value” is stated to be “£930,000 excluding VAT”, and the “call-off contract description” is “provision of strategic support to the NHSX AI Lab”.

The main reference to data in the service description is a phrase (the 7th bullet point of 12 that describe the services) that reads:

Modelling and simulation: using data from across the healthcare system to model scenarios to better understand that impact of the spread of CODIV-19 on healthcare resources

This may or may not involve obtaining personal data from NHS records.

A later [template?] Schedule 1 – Services includes a narrative description of the NHS AI Lab and what it will do, and states that the NHSX “are looking for a partner to help share and deliver the NHS AI Lab”.

These brief descriptions certainly raise the possibility that, in helping to develop the AI Lab, the contractor will have access to personal data, but so far the contract does not say so in terms.

Part B – Terms and Conditions, sets out detailed boilerplate terms for the contract. Clause 12.1 requires the Supplier to

comply with the Buyer’s written instructions and this Call-Off Contract when Processing Buyer Personal Data… [and to] only Process the Buyer Personal Data as necessary for the provision of the G-Cloud Services…

Schedule 6 is a glossary and defines Buyer Personal Data as:

The personal data supplied by the Buyer to the Supplier for purposes of, or in connection with, this Call-Off Contract.

Schedule 7 is headed “GDPR Information” and sets out a familiar table that sets out the parties’ legal roles and responsibilities in relation to data processing. It states that NHX is the Controller and the Supplier is the Processor. Under the heading “Type of Personal Data” it includes:

  1. Pseudonymised personal data
  2. Aggregated personal data

Under the heading “Categories of Data Subject” it includes “members of the public” and “patients”.

So, the framework contract contemplates the possibility that the supplier may have access to personal data from NHS patients, but does not explain in detail what the data is and in what circumstances it will be provided and processed.

Palantir

This contract is in a similar form to the Faculty contract. In the interests of saving a few Norwegian forests, IP Draughts printed out only the Statement of Work that appeared at the end of the contract. But he did check the contract value, in case this was evidence of a scandal. Disappointingly, the contract value is stated to be £1.

The Statement of Work is written in almost impenetrable jargon, but some phrases look as if they might refer to accessing personal data, including:

Ingestion of mutually agreed data sources and further integration into a data ontology

The Customer is required to provide:

Timely access to or provisioning of relevant data

Microsoft

The “contract” that has been disclosed appears to be a set of standard Microsoft contract terms for various types of standard service, including “Azure Services” and Office 365 Services”. The document is headed “Volume Licensing: Online Services Terms April 2020”.

The document is only 16 pages long, but this is misleading: they have reduced the font of the text to about 8 point. IP Draughts now has a headache.

IP Draughts is suprised to hear himself say this, but it was refreshing to turn to Microsoft’s turgid contract prose, after wading through the UK government’s very different turgid contract prose.

These terms are very light on the subject of personal data, but they do include a link to a web page where can be found Microsoft’s “Data Protection Addendum”.

Conclusions

Nothing in the Google or Microsoft documents appears to be evidence of a scandal.

Both Faculty and Palantir appear to have been engaged to support the development of a national AI Laboratory. One may speculate that the development of machine learning techniques in relation to Covid 19 – e.g. assessing how patients with a particular genetic sequence are likely to react to infection – could well involve processing personal data. One may also speculate that the UK population would mostly be happy for their personal data to be used, in a suitably controlled way, to support this important work.

Just looking at the contracts, there is very little about the nitty-gritty of GDPR compliance, and one might hope that other documents exist that will address in more detail what information is to be disclosed and how compliance will be ensured.

Is there a public scandal, and are these contracts “massive”? IP Draughts will leave that for others to decide.

 

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Filed under Databases, Legal policy, News

Online courses from IP Draughts and UCL

UCL Laws has been advertising IP Draughts’ forthcoming one-day courses for some time. The current batch is being held via Zoom for a reduced price. Details can be found on the UCL Laws Events pages here.

We are running each of these courses as two half-days, i.e. Tuesday afternoon and Wednesday morning. Next week’s course is definitely going ahead and is one that has been popular for about 15 years: Drafting Legal Clauses in Commercial Contracts.

The following week, IP Terms in Research Contracts is scheduled (subject to numbers booking).

IP Draughts will be using the camera and microphone that the European Patent Academy sent him some years ago, when he ran a series of webinars for them on IP licensing. The experience that he gained then has been very useful in managing the current batch of training courses. One of IP Draughts’ colleagues will be on hand to manage the chat function, though we hope that you will participate by asking questions and commenting live via the video link.

We are all becoming very experienced at using Zoom, so IP Draughts expects next week’s course to run smoothly!

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Technology Transfer: The Good, the Bad and the Ugly

Book review: University Technology Transfer: What Is It And How To Do It, Tom Hockaday (Johns Hopkins University Press, 2020)

Would you like to work with leading academics, and help them to transfer their technology from the university to the market, for the benefit of society? What skills do you need for this work? How is your work environment organised? What pressures do you face? How do you measure success? These and other questions are answered in Tom Hockaday’s crisply written, compellingly argued, authoritative book.

At the time of writing, the World is rushing to develop treatments and products for Covid 19, to reduce the number of human deaths, perhaps by hundreds of thousands. Many of those treatments and products are being initiated in universities. IP Draughts knows several people, across universities and law firms, who have been working on Covid 19-related research and technology transfer (TT).

The state of TT today reflects its evolution over the last few decades. When IP Draughts started in practice, many academics were suspicious of the commercial world and its values. Commercial exploitation was, for some, a negative term; the emphasis was on the word exploitation. In 1985, the UK Government announced that universities would be free to manage their own TT activities, rather than assigning their IP to the British Technology Group (formerly the National Research and Development Corporation). Thus started the growth of TT departments in UK universities.

Tom Hockaday has been part of that growth for nearly as long as IP Draughts. Their paths have crossed many times. Tom’s first job in the sector was at University College London; although IP Draughts advised UCL at that time, he can’t remember working with Tom. Next, Tom moved to the University of Bristol, and IP Draughts worked on several projects with him during that time.

Finally, Tom moved to the University of Oxford, where he was promoted to managing director of the university’s TT company; he did this job for 10 years. The former head of Tom’s legal department,  Stephen Brett, is now a partner in Anderson Law LLP.

Tom’s book is packed with useful information, which would be of interest to anyone starting a TT function, or wanting advice on how to deal with the difficulties that a TT office faces. Reading the book, IP Draughts was reminded of how much knowledge one acquires over several decades in a professional role, and how that hard-learnt knowledge can be wasted when you retire. Writing a good book is one way of passing on the knowledge, as is building up and training a large team that will be your legacy, and providing consulting services to other TT teams. Tom has done, and is doing, all of these things.

The book is, as already mentioned, crisply written. It gets straight to the point that Tom is making. IP Draughts is drawn to the analogy of an intelligent staff officer briefing a group of impatient generals about how the battle is going. Colonel Hockaday is sensitive to his audience, has the facts at his fingertips, avoids waffle, is not afraid to express an insightful opinion, and is above all clear.

Although disciplined in his writing, Tom allows himself occasional bursts of humour, which IP Draughts greatly appreciates. One of Tom’s topics is the habit of universities to conduct periodic (and sometimes ill-informed) reviews and reorganisations of TT activities. He cites the example – genuine? apocryphal? it doesn’t really matter – of the head of the TT office who hears of his vice-chancellor’s plan to conduct a review of the office, and offers to resign immediately to save him the hassle.

One reason why Tom’s thesis is so persuasive is that it is expressed in reasonable terms, and backed up by evidence and examples. As one might expect, many of those examples are from his experience at Oxford, and sometimes IP Draughts was provoked to think that other ways of doing things were equally valid. But that in itself is useful – the book presents a point of view and implicitly challenges you to come up with a better alternative. This is what Ken Adams calls, in a different context, the marketplace of ideas.

The book is not all about Oxford, though. Tom is well informed about other leading UK universities and their approach to TT. He is not afraid to put the boot in where he thinks it is justified, as he does when describing Imperial College’s “interesting experiment” in hiving off its TT activities to a publicly-listed company.

The book provides extremely useful information to anyone who is involved in creating or developing a TT office, in the UK or overseas. It should be required reading for all presidents, vice-chancellors and senior managers of universities that have a TT office and are tempted to interfere in its activities.

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