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.

Dramatising science and technology: can it be done?

This week, IP Draughts has been to two performances that tried, with some success, to entertain us with true stories about the development of technology.

The first of these was a trip to see the film, The Current War. Starring Benedict Cumberbatch, it dramatises the rivalry between Thomas Edison and George Westinghouse over the development of electricity networks in the USA. Specifically, it focusses on Edison’s advocacy of direct current systems versus Westinghouse’s espousal of alternating current. Tesla has a supporting role. JP Morgan appears periodically with his chequebook. Claims of patent ownership and infringement feature at various points.

Readers with long memories will recall IP Draughts’ disappointment with the film, The Descendants, in which George Clooney played a conveyancing lawyer and grappled with the rule against perpetuities. The Draughtatrix seemed to enjoy that one. This time, she cracked first, commenting during the film  that she didn’t care what happened next.

Nor did IP Draughts by that point. The problem was the script. IP Draughts has read several books about Edison and Tesla, and feels there is a great film to be made about their rivalry. But this wasn’t it.

IP Draughts is now on his annual trip to the Edinburgh Festival, and last night saw a Fringe show, Harriet Braine, Les Admirables. It was partly about famous women scientists and inventors. She chose Hedy Lamar and Ada Lovelace, among others, to illustrate her theme. Like the caption from the Punch cartoon, it was good in parts, and IP Draughts is glad he saw it, but it needed more editing and focus.

It seems that turning science history into high-quality entertainment is hard.

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Do you understand your insurance?

This week, IP Draughts has had several conversations with insurance brokers. First, to renew his firm’s professional indemnity insurance for another 18 months – a relatively straightforward task. In the early days of Anderson & Company, this was the single, largest item of expenditure that the firm had, and negotiating a good deal was very important. It is still important, but the costs are now dwarfed by other overheads, including those involved in employing 10 people, renting premises, and managing and renewing the IT infrastructure.

His other conversations with insurance brokers were on behalf of a university client that wished to understand what cover it had for its technology transfer activities. Over many years, IP Draughts has learnt that conversations of this kind have a high risk of mutual misunderstanding. Several factors increase the risk:

  • the client doesn’t understand the insurance market or its policies
  • the insurer doesn’t understand the client’s activities
  • the broker has a partial understanding of both; they try to be helpful but they are not usually contract law specialists, and don’t always have an iron grip on the meaning of the policy
  • sometimes, communications have to be routed through a university insurance manager, whose understanding of the detail may also be partial
  • terminology used in the insurance market is not always the same as that used in contracts, e.g. with respect to terms such as indemnity, hold harmless, and warranty; this increases the scope for mutual misunderstanding when trying to have a detailed conversation
  • it is sometimes difficult to speak to the right person within the insurer – usually a “back room boy” who understands the minutiae of business risks policies but is rarely a client liaison person

If you are responsible for “signing off” on the liability terms of university TT agreements – including licence agreements and spin-out investment agreements – don’t you need to have an accurate understanding of which risks are covered by your institution’s insurance policies? Doesn’t this affect which terms are considered deal-breakers and which can be (however reluctantly) accepted?

Discussions with this client’s insurers are ongoing. IP Draughts has had these conversations before, and nothing in the present interactions is particularly surprising. This is a complex subject, where people often make wrong initial assumptions, and it takes time to dig into the detail.

A general question for you. Which of the following legal risks are covered by your institution’s insurance policies?

  1. Warranties and indemnities given in licence agreements.
  2. Warranties and indemnities given in investment agreements.
  3. Liquidated damages and penalty clauses.
  4. Negligent performance of research resulting in inaccurate “know-how” being supplied under a licence agreement.
  5. Product liability claims by an injured customer (who may not have any direct contractual relationship with your institution).
  6. Risks of claims against your employee who acts as a nominee director in a spin-out company.

If your answer is “some” or “all”, a supplementary question is which of your institution’s insurance policies cover, and which exclude, these risks? Candidates include:

  • public and product liability policy
  • professional indemnity policy
  • clinical trials policy
  • directors and officers policy

Knowing the answers to these questions will depend on a close scrutiny of the wording of the policies, and will probably involve discussions with insurers. Not all policies are the same and making general assumptions is dangerous.

Answers on a postcard, please, addressed to IP Draughts at Jumping-to-Conclusions House, Muddy Waters Lane, Hazardville, Connecticut, USA.

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Which is better: being or doing?

Are you someone whose career is based on how well you interact with others – what might be called “being”? Or are you someone who gets things done – “doing”?

The two are not mutually exclusive. We probably all have elements of both characteristics. Greta Thunberg is in the news, and she is probably more on the doing side of the scale.

Perhaps this accounts for some of the antagonism towards her. Much of public life seems to be filled with people who are good at being. They are easier to get on with, and strike up a more immediate rapport. Politics is full of generalists (to give them a polite name) or self-confident windbags (to be more blunt).

Traditionally, leadership roles are given to be-ers. Experts are there to be used as a resource, not to run the place. In IP Draughts’ view, do-ers can be very effective leaders. But they aren’t always given the chance. Recruitment panels are often dominated by be-ers.

The diversity agenda forces recruiters to consider people of other genders, skin colours, class and educational backgrounds, and this is good. But it is very difficult to tackle discrimination against do-ers. How do you identify and measure them? Perhaps a do-er should be asked to tackle this difficult subject.

The IP professions are full of do-ers. They rarely seem to break through into non-specialist leadership roles. Last time IP Draughts looked, there was only one IP specialist (a patent attorney) in the House of  Lords, and none in the House of Commons. Can you name any IP specialist at the head of a large organisation? There won’t be many.

IP Draughts doesn’t dismiss being as an important quality when working with other people. But it needn’t be a leader’s dominant characteristic. If you want to get things done in a thoughtful, imaginative and competent manner, you could do much worse than put an IP specialist in charge.

 

 

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Legal training courses this Autumn

Eight or nine years ago, when IP Draughts first persuaded Professor Sir Robin Jacob to host a one-week course on IP transactions at UCL’s Institute of Brand and Innovation Law (IBIL), he (IP Draughts) struck lucky on several fronts. UCL’s Faculty of Laws is a leading law faculty, which now has excellent facilities after a multi-million-pound refurbishment. Prof Jacob continues to be very supportive. And even more important on a day-to-day basis, the law faculty has an excellent manager of professional courses in the person of Lisa Penfold. The icing on the cake was when the one-week course won two awards shortly after it started: a UCL Provost’s Teaching Award, and a Law Society Excellence Award (Highly Commended).

After 7 years of working with, or for, Lisa, we have developed a routine that works very well for both the annual, one-week course – due to run again next April – and various one-day courses that IP Draughts runs there.

We are now operating a system of having at least 2 dates to offer people for each of the one-day courses. We have a batch starting in October, and another batch starting in late January. Details can be found on the events page of UCL Laws here, or on the Eventbrite IBIL page here.

Courses are typically run in a meeting room at the law faculty, or if the numbers are large, we sometimes use the Moot Court – a rather grand room with wood panelling and plush leather chairs that started life as the council chamber of the National Union of General and Municipal Workers. UCL purchased the building from the union in the 1960s.

The courses being run in the next few months have the following titles:

  1. Introduction to Contracts
  2. Drafting Legal Clauses in Commercial Contracts
  3. Contract Drafting: Skills Workshop
  4. IP Licensing
  5. IP Terms in Research Contracts
  6. Contracts with Universities

IP Draughts also regularly runs in-house versions of his courses for a fixed fee. These can be adapted to be suitable for lawyers or commercial managers, and for complete beginners or more experienced people. Please contact him for further details at courses@andlaw.eu.

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