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Inclusive and elite: contradiction in terms?

Rightly, there is a focus nowadays on ensuring that the workplace is inclusive and diverse. The Law Society of England and Wales treats this issue seriously and requires its committee members and chairs to undergo training. Law firms are required to publish their diversity statistics – Anderson Law’s most recently published figures are here.

An older feature of legal practice, and of other areas of professional life, is the reverence that it has for hierarchy and competitive merit. This leads to ranking and tiering. At the top of the legal tree are members of the UK Supreme Court, who are supposed to be better lawyers than in the Court of Appeal, and they in turn are better than their brethren in High Court. QCs are supposed to be more able than junior barristers and, in the traditional view, barristers are more gifted than solicitors. Experience is respected to some extent, but some lawyers are so brilliant – so high up the intellectual pecking order – that they bypass the need for judicial experience and are promoted directly to the Supreme Court, as in the case of Lord Sumption.

This elitist philosophy suggests that if you put 3 lawyers together, one is best, one is worst and one is in the middle. It is an approach with which IP Draughts is familiar. At the boarding school that his parents sent him to in the 1970s, everyone had a clearly-designated place in the hierarchy. Each term, lists were prepared putting people in order of seniority. Age and year of admission provided a starting point, but were then adjusted when a person was selected for responsibilities, eg as form captain or prefect.

Throughout the 5 years that he spent at this school, virtually every meal was taken sitting next to people who were slightly higher or slightly lower in the hierarchy. Choice of study/bedroom in the 6th form also followed this sequence. Some teachers even applied a similar system to seating in class, putting the people who scored the highest marks in exams in the back row, and following in lines down to the class dunce in the opposite, bottom corner.

This linear approach can make people very competitive – they want to be higher up the tree – and competitiveness is not, in principle, a bad thing. But the difficulty in IP Draughts’ mind is that this approach tends to look at two people and say that one is always better than the other. Perhaps this is true if you are picking prop forwards for the first XV rugby team. But in the professional world the skill-sets required are more sophisticated and complex. And the linear approach may be at odds with an inclusive and diverse approach. It is two-dimensional rather than three-dimensional.

A better approach when it comes to professional life is to identify people who meet a threshold level of competences, across several areas, and then select a variety of qualifying people, taking advantage of their different skill sets and perspectives. In IP Draughts’ view, this three-dimensional approach has more room for diversity and inclusion than a traditional hierarchy of talent and can result in a team with greater overall skills.

IP Draughts would like to see promising candidates who reach some defined, threshold standards, but are not the “finished article”, being promoted to the Supreme Court and given training and support to help them achieve very high standards. But he fears this is a step too far for an establishment that, no matter how much it agrees in principle with inclusivity and diversity, still has some deeply-embedded values that can push decision-making in a different direction.





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Inappropriate use of indemnities

This golden oldie discusses one of IP Draughts’ hobby horses: inappropriate indemnities. He found himself teaching on this point earlier in the week, at one of his UCL courses on IP licensing.

IP Draughts

Too many contracts include indemnities.  IP Draughts has noticed a increasing trend to include indemnities in commercial contracts, in recent years.

First, we need to distinguish between two types of indemnity.  Take the example of a contract between A and B, under which A is engaged to manufacture a pharmaceutical drug for B, to B’s specification, which B will use in human clinical trials.

A third party indemnity allocates responsibility between A and B for dealing with third party claims or liability.  In the present example, a patient might be injured by the drug.  The manufacturing contract may provide that, if a patient brings a claim in respect of that injury:

(a) if the injury arose because the drug was inherently toxic or harmful, B will indemnify A against the patient’s claim; or

(b) if the injury arose because A introduced some contaminent into the drug during the manufacturing process…

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Owning and assigning data and know-how: what does it mean?

Another evergreen topic in this golden oldie- what does it mean in legal terms to own and assign know-how?

IP Draughts

First scenario: late at night in the final stages of a corporate transaction.  You are asked to produce IP-related documents for completion (closing).  The documents are to include a know-how assignment.  You look on your office computer system but can’t find a suitable template.  What do you do?  It may be tempting to use a patent assignment, deleting the word patent wherever it appears and replacing it with the word know-how.  But is this good enough?

Second scenario: negotiation of a contract to perform R&D services.  The customer requests that a clause be inserted in the contract stating that the customer owns the data produced in the course of performing those services.

In both cases, the required assignment/clause appears to be based on the premise that know-how or data is property that can be owned and transferred.  Under English law, our understanding is that know-how and data are simply…

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Mr Pettifog comes out (for Brexit)

Mr Pettifog’s partners continue to be traumatised by Brexit, so this golden oldie still has some relevance…

IP Draughts

flagLast week’s partners’ tea was stressful. Mr Pettifog couldn’t stop gloating about the result of the referendum. Soon we will be released from the shackles of a jackbooted superstate, he said, mixing his metaphors.

He has been like this ever since he was strongly advised to withdraw his application to become a judge of the Unified Patent Court. He did so, to avoid public embarrassment. But he hasn’t forgiven the Dutch member of the appointments panel who is reported to have joked that Mr Pettifog had all the judicial qualities of Mr Justice Peter Smith and all the diplomatic skills of President Benoit Battistelli.

In fact, though he refuses to admit it, much of Mr Pettifog’s income depends on the UK remaining part of the European Union. His main client is an American patent troll called Randy Duke III, trollwho regularly instructs him to write obnoxious letters to small businesses…

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