Category Archives: Legal practice

Rhetoric and habit in negotiations

We are creatures of habit. We like the familiar. In commercial negotiations, we hear the same argument a few times, and we think it has merit. We use the argument ourselves, and it is persuasive, because the person we use it on has heard it before. Whether the argument has any genuine merit is an entirely separate question. Here are a few:

  • I’m not paying your taxes (IP Draughts hears this from US parties, in relation to a clause that says that payments are exclusive of VAT; usually the person doesn’t understand the European VAT system).
  • “Represents and warrants” gives remedies in tort as well as contract.
  • We should not pay royalties on patent applications that are more than 5 years old.
  • Confidentiality obligations should not be perpetual, as we need to know when we can close our file. 5, or at most 10, years is conventional.
  • Your cap on liability should not apply to breach of confidence, IP obligations or data protection issues.
  • We need to own the data that comes out of the project; our business client expects to see such a clause. IP rights are a separate issue, dealt with in a separate clause.
  • The definition of each party should include its affiliates.

If IP Draughts had more time, he could think of more examples. Some of these arguments (or perhaps assertions would be a better word) have emerged as conventional wisdom during the time that he has been practising. Some are the subject of more detailed discussion in old articles on this blog.

In all cases, the arguments can be questioned on the grounds of logic, legal principle, or whether they favour one’s client’s interests. But questioning them can be a backwards step in negotiations, because one is challenging the norm. Particularly if the point seems secondary or unimportant to the deal, or if one’s commercial client really doesn’t care about the issue, it is tempting to go along with what everyone else seems to do.

An example: fairly early in IP Draughts’ career, he negotiated a confidentiality agreement and, after some discussion, persuaded the other party to increase the duration of confidentiality to 20 years (or was it 15?). Later, IP Draughts’ client relayed some feedback from the other party, that IP Draughts had been difficult over a minor agreement, and that this didn’t bode well for the more important negotiation of the “full” agreement. Even if there was logic in a longer period of confidentiality (for a biotech client’s technology), it was not considered appropriate to go above a 10-year confidentiality term.

Negotiating agreements involves a series of judgment calls about whether to accept an argument, a form of words, a compromise: when doing so, IP Draughts recommends that you keep a clear head on whether the argument is valid or just familiar. Of course, this requires you to be really on top of the technical aspects of your profession.

2 Comments

Filed under Commercial negotiation, Contract drafting, Legal practice

Farewell, Institute of Knowledge Transfer

So long, farewell!

Regular readers of this blog may recall that IP Draughts has expressed a wish to see a new national body that focuses on the public policy, networking and educational aspects of innovation. See, for example, this post from 2016, which suggested the formation of a Royal Academy of Innovation and Creativity.

Experience has taught IP Draughts that he achieves more when he sets something up himself, rather than joining someone else’s party. He has thought about how he might set up a body of this kind. One idea that passed through his mind was whether he could take over an existing, but moribund, organisation, and repurpose it.

In this context, he has occasionally looked at the Institute of Knowledge Transfer (IKT), wondering whether he should make an  offer for it. From a company law perspective, it had certain things going for it. It was set up as a company limited by guarantee, and as a membership organisation. It had permission from the relevant government department to call itself an Institute and omit the word “Limited” from its name. It had some name recognition in the university sector. And it didn’t seem to be going anywhere.

Fresh from the recent bank holiday, this morning he looked at their entry in the UK Companies Register. Too late! The company was dissolved in March of this year.

The IKT would make an interesting case study about the life cycle of a membership organisation. IP Draughts doesn’t know much about its internal workings, but he knows others who do. In a little over 15 years it passed through the seven ages of a man-made organisation. It was incorporated, grew, acquired a “big name” chairman, became part of an international network, was overtaken by other organisations (e.g. ATTP, which runs the RTTP certification), its assets were acquired, and the company was eventually dissolved.

IKT still has a Wikipedia page, which is now rather out of date.

The reasons why membership organisations fail to thrive are many and varied. Some depend on the active participation of volunteers, and if there is not a constant refreshing of the volunteer cohort, the organisation may die. Some are given pump-prime funding (e.g. by a UK or EU public body) and when the money runs out there is no viable revenue stream. Some simply don’t offer enough to their members.

IP Draughts hopes he has a sufficiently good track record, from growing a law firm, public policy experience, leadership roles, teaching, and publications, to demonstrate his focus on long-term success.

An initiative of this kind will need different types of contribution, including:

  • financial sponsorship
  • networking and opening doors
  • helping to run the organisation and devise attractive offerings to participants

If you think you might be able to help him create a robust, national body to promote, debate and teach innovation – to government, to participants in academia and industry, and to the wider public – he hopes you will make contact with him.

4 Comments

Filed under Legal policy, Legal practice, universities

We need to talk

One of the issues that IP Draughts’ firm is grappling with is how to recreate the social side of work when we are all working from home. We have started to have regular social meetings by video link, using the cameras on our laptops and one of the many apps that are available. These meetings are not to discuss client work. Today we had a meeting with over a dozen participants.

IP Draughts wonders whether there would be an appetite for extending this idea to members of the communities in which he works, particularly:

  • the legal and IP sectors
  • university contracts managers and technology transfer executives
  • high-tech and life-science business

His idea is to host a regular (perhaps weekly) video conference using Zoom, to which anyone in the above sectors is invited. IP Draughts would moderate the discussion, and introduce topics to get the discussion going. But it would be an open discussion, to which anyone could contribute. The emphasis would be on light-hearted, lively conversation.

Possible topics might include:

  1. Working from home: problems and work-arounds
  2. Getting the right tone in remote conversations
  3. Building relationships when you can’t meet face-to-face
  4. Sharing work experiences when you are not in the same room
  5. Keeping up to date with professional skills and knowledge when working remotely

Looking at this list, it looks a bit serious, so perhaps we could have some lighter topics. The overall idea is to let people chat about things that affect them at work, including issues that arise from home working, rather than the nuts and bolts of the work itself.

Would you be interested in participating in conversations of this kind? They might last 30 to 60 minutes depending on how the discussion goes. We might hold the first conversation next Friday, 26 March at 2pm.

We would have a very few rules, including:

  • no sales and marketing
  • keep it nice
  • moderator reserves the right to veto topics and mute people

Please reply to this survey, or contact IP Draughts by email.

6 Comments

Filed under Legal practice

Working through the pandemic

In common with a significant part of the UK population, and apparently much of the world, members of our firm are mostly working from home, and have been for the last 10 days. Many of our clients have started to do likewise, this week.

Fortunately, our IT system makes this relatively straightforward. IP Draughts can call any of his colleagues on their internal, 3-digit phone number, and it will ring on their laptop or other device in their home office. If you need to speak to us in a multi-party phone call, we can arrange a conference call facility, or we can do 3-way calls readily on our phones or via an app.

We have also started to use Microsoft Teams, a kind of video conference call facility, which worked very well for a partners’ meeting yesterday.

None of this is ideal – face-to-face meetings are sometimes much better – but we can make it work. We are also planning to hold regular, non-work meetings with our colleagues to try to replace the usual social interaction, and reduce the sense of isolation. If you are someone with whom we regularly deal, please let us know if you have any particular requirements or wishes for interaction, e.g. as to frequency, timing, methods, etc.

We have cancelled or postponed our upcoming courses, including the one-week course on IP Transactions, due to take place at UCL in April, which has been rescheduled for November. We are aware of other conferences that are going to be run digitally rather than in person, e.g the BioTrinity conference.

Our thoughts are with people whose jobs require them to have face-to-face contact with members of the public, such as those in retail and hospitality businesses. They face both the worry of being infected, and the worry of potentially losing their jobs if their business is badly affected in the short term.

 

Leave a comment

Filed under &Law Updates, Legal practice