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Another outing for this review of MSCD

via Improve your contract drafting. Step 1: read MSCD, 3rd edn

Ken Adams recently published the 4th edition of his great work, Manual of Style of Contract Drafting. It seems timely to repost IP Draughts’ review of the 3rd edition, from 5 years ago. IP Draughts views on the 4th edition are largely the same as for the 3rd, except that the new edition reflects another few years of thought on the part of the author, and expansion and refinement of the text.

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One-sided contract term of the day (2): uneven litigation rights

Another golden oldie that is getting an airing. Investors often propose terms that, in another environment, would be perceived as aggressively one-sided, but which seem to be regarded as conventional in the investment world.

IP Draughts

We continue our series highlighting IP Draughts’ “favourite” one-sided provisions in contracts.  These provisions are often found in contracts where there is an imbalance of power between the parties, and where the party with the power (let us call him the “Patron”) seeks to reduce a sometimes theoretical risk by imposing it on the other party (the “Supplicant”).

Today’s one-sided term is:

Clause X does not prevent the Patron from taking proceedings relating to a Dispute (“Proceedings”) in any other court or tribunal with jurisdiction.  To the extent allowed by law, the Patron may take concurrent Proceedings in any number of jurisdictions.

Typically, Clause X states that the agreement is subject to the exclusive jurisdiction of a named court.

Thus the Patron is “having his cake and eating it”.  The Supplicant is forced to litigate in the court named in Clause X.  The Patron can litigate in that court if…

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Hell is other people’s contracts

Deal or No Deal? This golden oldie is a short story about the procurement process.

IP Draughts

camusWhile browsing in a bookshop in Montmartre recently, IP Draughts discovered what appeared to be an old play synopsis, stuck inside the front cover of a first edition of Albert Camus’ Collected Essays.

As the play synopsis seemed to be concerned with contract drafting, IP Draughts thought readers might be interested to see it.  Link here. If thought suitable by others, IP Draughts would be willing to lead a crowdfunding consortium to develop this synopsis into a Hollywood film. He suggest that suitable actors to play the lead characters might be:

John – Colin Firth

Randy – John Goodman

Simone – Scarlett Johansson

Maitre d’ – Ralph Fiennes

CEO – Meryl Streep*

Please let IP Draughts know if you think this idea has legs.

* The synopsis indicates a male CEO. If investors think it is important to respect the author’s directions on this point, Kevin Spacey would be…

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Post-expiry royalties: what’s the problem?

This golden oldie came up in the list of recently-viewed articles on this blog, and it may be worth another airing.

IP Draughts

weirdThere are some weird terms in US licence agreements. Let’s leave aside the general peculiarities of US contract wording. Examples such as “indemnify, hold harmless and defend”, “represents, warrants and undertakes”, “successors and assigns”, and a host of other excrescences, appear in many types of commercial agreement and not just IP licences. Instead, let’s focus on wording that deals with the duration of royalties in licence agreements. This issue came into sharp focus last week, with the decision of the US Supreme Court in the case of Kimble v Marvel Entertainment, LLC.

More on that case later. The general issue, in the US and internationally, is whether it is appropriate to require a licensee of IP to pay royalties after the IP has expired, been revoked, or otherwise ceased to exist. A generation or two ago, there seemed to be a consensus among legislators and the courts that it…

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