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Licence grant wording: take care over the details

This golden oldie looks in detail at licence grant wording. Over time, IP Draughts is becoming less tolerant of long lists of adjectives before the word “licence”, as these provide an overly-concise shorthand. Better to spell out some of the issues in separate clauses.

IP Draughts

Ken demonstrates the ancient art of invisible cat's cradle Ken demonstrates the ancient art of cat’s cradle, conceptually, and without the wool

IP Draughts’ favourite commentator on contract drafting issues, Ken Adams, has written an article, Granting Language in Patent License Agreements: An Analysis of Usages. The article has recently been published by Landslide, the magazine of the American Bar Association’s Section of Intellectual Property Law.

It is always interesting to read Ken’s views, particularly when his accompanying blog article issues a challenge to IP lawyers, expressed in Donnesque terms:

IP guys, you are not an island: it’s best to base your contract usages on general guidelines for clear and modern contract prose.

IP Draughts agrees with the sentiment, and with much of what Ken says in the article. That is not entirely surprising: he saw a draft of the article and commented on it. There are, though, a few more IP factors to take into account before reaching…

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Gross negligence = ordinary negligence + vituperative epithet?

Vituperative epithets feature strongly in this golden oldie about references to “gross negligence” in contracts.

IP Draughts

grossIP Draughts first encountered references to gross negligence in contracts in about 1984.  Working as an in-house lawyer for a UK-based research and engineering consultancy, he negotiated some contracts that were based on US templates.  Often, those US-style contracts would include clauses that limited liability or provided for indemnities, yet made an exception in the case of liability caused by a party’s gross negligence or wilful misconduct.

In his callow youth, IP Draughts’ reaction to such an exception in negotiations was to point out that gross negligence did not feature as a well-understood concept in English contract law.  Sometimes, he would negotiate to remove the exception.  On other occasions, he would propose alternative wording, such as “reckless or wilful misconduct”.

Nowadays, in his near dotage, IP Draughts has seen references to gross negligence so many times in contracts that he is inured to them. (Inure: there is…

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Shall or will in contracts?

This golden oldie discusses an evergreen theme. Since writing it, IP Draughts has become aware that vestiges of contracts under seal do exist in some US state laws, sometimes known as “specialties”, but they rarely seem to be used for commercial contracts

IP Draughts

This posting is prompted by seeing this recent article, on a non-legal, grammar blog, about the distinction between shall and will, including the use of these words in contractual obligations.

To focus the discussion, here are some examples of contractual obligations:

  1. The Consultant shall provide the Services to the Client.
  2. The Consultant will provide the Services to the Client.
  3. The Consultant [undertakes / agrees] to provide the Services to the Client.
  4. The Consultant covenants to provide the Services to the Client.

Conventional practice among most English commercial solicitors is to use version 1 above.  Shall is almost always used (in preference to will) to express contractual obligations in the template agreements of City [of London] law firms.

Sometimes, variants on version 3 appear, but they take up more words than version 1 and add nothing to the legal effect under English law, so should probably be…

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His Honour Judge Pettifog

We haven’t heard much from Mr Pettifog recently. His schemings have come to nought, and he is often to be found in the saloon bar of the Freemason’s Arms, regaling the assembled throng with tales of yore. Here is one of those tales, of the time when he nearly became a judge in the Caribbean…

IP Draughts

bourbonI am going to become a judge, announced Mr Pettifog at partners’ tea last week. There was a brief silence. Who is going to make you a judge?, asked Alice sharply. Alice serves the tea on these occasions. She is even older than Mr Pettifog, and knew him when he was young, so he accepts her direct questioning.

The Attorney General, Mr Pettifog replied. He looked pleased with the reaction that his announcement had made. In truth, his listeners were feeling a mixture of disbelief that anyone would make him a judge, relief that they might finally be rid of him, and irritation that Alice was not serving the tea.

The Attorney General of England and Wales?, asked Bright Sparkette, displaying the attention to detail that illuminates all of her work.

Mr Pettifog chewed thoughtfully on a bourbon cream biscuit. Not exactly, he said eventually.

lincolns innWith some prompting, he admitted…

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