While rummaging among the innards of this blog – the ‘dashboard’ that gives statistics on what has been read, where the readers are from, and so on – IP Draughts noticed that a couple of people had downloaded an article that he had written in about 1992 – one of the first that he published, though he can’t now remember where.
The article concerns an old House of Lords case on the interpretation of a patent licence agreement: Fluflon Limited v. William Frost & Sons Limited (1966) FSR 184. Looking back over nearly 30 years since he wrote the article, the main point IP Draughts now takes from the case is the importance of precise, meticulous drafting in IP agreements, particularly on major issues such as which products are royalty-bearing.
IP Draughts comes across an argument, raised even in comments on this blog, that if business people are happy that they know what they mean by contract wording, lawyers should not interfere too much or raise ‘academic’ arguments about legal interpretation.
This is not IP Draughts’ approach. He thinks it is part of a good lawyer’s role to stress-test negotiated wording and (unless instructed otherwise, or the scale of the deal does not justify it) to raise whatever objections occur to the lawyer, to make the wording suitable in light of the client’s commercial objectives and the underlying law.
A link to the article appears on the second page of this site – not this page, which contains all the blog articles but a separate page that has links to most of IP Draughts’ articles in journals and magazines.
IP Draughts writes articles occasionally, fitting them around client work, teaching, updating books, and other roles. He thinks it is time to write another one, and would welcome suggestions for a topic.
One idea that he has had is to write an article on why the English courts should not give dual remedies in contract and tort (e.g. for misrepresentation) to a party that is suffering from a breach of contract. As well as considering cases in which the English courts seem to have been persuaded that dual remedies can exist, the article would discuss both:
- The arguments raised by Ken Adams, eg here; and
- The logic of recent English cases on solicitors’ negligence, where the courts have decided that if there are potential claims in both contract and tort, only the contractual claim (and the contractual measure of damages) can be pursued. See for example Wellesley Partners LLP v Withers LLP  EWCA Civ 1146,  All ER (D) 146 (Nov).
Where this article would be placed is less obvious to IP Draughts. It is a broader subject than articles on IP contracts, which IP Draughts has tended to place with JIPLP.
If you have any suggestions for articles, or if you know someone who might be interested in working with IP Draughts as a research assistant (perhaps someone in the early stages of an academic law career), he would be interested to hear from you.