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What shall we discuss today?

IP Draughts’ pharmaceutical pencil collection

IP Draughts can’t decide what to write about, on this sunny Spring morning.

The UK IP world is agog with the news of the reported IP dispute between Marks & Spencer and Aldi supermarkets, concerning an alleged infringement of rights in the Colin the Caterpillar cake. Pass.

Still on IP Draughts’ desk is a copy of the Court of Appeal judgment in the TuneIn case. Try as he might, every time he tries to read the judgment he falls asleep. So a report on it will have to wait. If any reader would like to prepare a short (but accurate) article summarising the decision, and its implications for website streaming of radio stations, IP Draughts would be happy to consider posting it on this blog.

There are no juicy IP contract disputes on BAILII this week.

So, IP Draughts will have to fall back on an old favourite: AstraZeneca’s Covid supply agreements. Here is a link to a redacted text of the UK supply agreement on a CNN website. CNN were apparently directed to the text on a UK government website, following a freedom-of-information request.

IP Draughts is amused to see that the UK government gave itself the power to publish this contract in clause 17.7. It apparently did so last year, but no-one noticed the contract on the government’s website.

The contract includes a now-familiar (see the equivalent EU contract) definition of Best Reasonable Efforts, in clause 1.1.

As a reader has previously noted on this blog, the contract is with AstraZeneca UK Limited, whereas the EU version is with a Swedish AZ company. This could be viewed as a form of compartmentalisation of obligations. From a contractual perspective, it may be difficult for a customer to demand that its AZ supplier divert stock that was destined for another customer, if that stock is under the control of a different AZ company. Perhaps such niceties don’t matter too much when the pressure being applied by the European Commission and others is at a political, rather than a contractual, level.

From a quick read through the contract, its look and feel is more familiar than the EU version, perhaps because the parties negotiating it (and particularly their lawyers) were both from the same jurisdiction. Or perhaps because the UK government customer took a more pragmatic view on risk issues than the European Commission. Whatever the reason, IP Draughts’ view continues to be that extensive risk allocation terms in contracts are of marginal benefit, and that what really matters is establishing a good relationship with a reliable supplier.

Podcast of this article here.

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Abusive IP litigation – international publication

In 2019, IP Draughts was invited to participate in an international research project, organised by the International League of Competition Law, known as LIDC. The topic was abusive action in IP disputes – from threats to litigation.

IP Draughts was probably selected for this task because he had recently led the IP Law Committee of the Law Society of England and Wales in its campaign to reform UK law in this area, which culminated in the passing of the Intellectual Property (Unjustified Threats) Act 2017. He is grateful to Christopher Stothers and George Peretz QC for the opportunity.

The project involved several authors writing papers on the state of the law in their respective jurisdictions. IP Draughts’ main tasks were to set the questions that the national authors had to answer, consider the national papers, and write an “international” paper that took a high level view of the state of the law across jurisdictions. He presented his paper at the LIDC annual conference in November 2019, and this led to the conference passing a resolution on the subject.

The papers have now been collated and edited as chapters in a book, which has finally been published by Springer. IP Draughts’ chapter can be purchased here. It should apparently be cited as Anderson M. (2021) International Report. In: Kobel P., Këllezi P., Kilpatrick B. (eds) Competition Law Analysis of Price and Non-price Discrimination & Abusive IP Based Legal Proceedings. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham.

It was an interesting project, and IP Draughts learnt a great deal from it, mostly about the challenges of international academic cooperation, and the differing approaches of legal publishers to so-called “open access” publishing. This will all be useful experience if he gets his IP research centre off the ground.

Podcast of this article here.

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Pooling research IP for the common good

research pool

Research pool

As regular readers will know, IP Draughts is trying to get a new project off the ground. He has drafted a funding proposal for a research centre into IP, innovation and international commerce. In the last few weeks he has received comments from a range of people on the drafts. With some simplification, those comments fall into various categories:

  1. This is a worthwhile venture and I hope it succeeds. It is great to get these comments, mostly from people in the technology transfer community. They confirm that IP Draughts is not alone in thinking we need a research centre of this kind. But he isn’t complacent about them. There is a huge gap between some people thinking it is a good idea, and getting this unusual flying fortress into the air.
  2. You need to write a better proposal. Fair enough, this is the first time IP Draughts has written this kind of document, and he appreciates being taught how to do better. He has taken many of these comments on board, and thinks the latest draft of the proposal is much improved. A comment from several people was that the proposal should give examples of problems that arose from an imperfect legal system, and examples of other research projects tackling these problems. Giving examples is difficult, in light of client confidentiality, and probably none of the examples will sound dramatically bad to a non-specialist. But he will try to develop some. And as far as IP Draughts is aware, no-one else has made a similar proposal. In the context of trying to persuade a sceptical audience, does this amount to “first mover disadvantage”?
  3. It may be difficult to find funding. Talk to X, Y and Z. IP Draughts will try to speak to all or most of the people suggested, once has built some momentum, and ensured the proposal is good enough for public consumption. He realises he has probably wasted one or two conversations, by having them too early.
  4. Law faculties don’t do this stuff. There are two components to this comment. First, that UK law faculties are focused on generating revenue from undergraduate and postgraduate teaching. Research papers are mostly written by individual academics and tend to be quite “academic”. Law faculties don’t have a tradition of large research teams tackling big, societal problems. Secondly, that IP Draughts is not a career academic, and law faculties don’t have a tradition of allowing visiting professors to run large projects. IP Draughts doesn’t know what the answer to these problems is, but he thinks he should secure some funding first, before tackling this hurdle.

Countering these negative thoughts have been some really inspiring comments, including this one from a senior professor in a science subject:

“This is a worthwhile initiative… I know Mark and he certainly has the energy to make this happen.”

An interesting suggestion came from another reviewer. He pointed IP Draughts to the Medicines Patent Pool, which is focused on making HIV drugs available in developing countries. He thought there might well be interest in developing some standard approaches to IP licensing in collaborative research projects, and in particular:

“how to create IP-sharing ecosystems that both protect the IP-owners’ interests but in certain cases allow use of the IP for further development”

This is an important issue, and one that would benefit from practitioners’ insights. If only we had the centre up and running, we could develop a workstream to investigate this issue!

As well as this policy initiative, there is also a potential workstream to develop standard licensing terms to accompany such an initiative. Looking at the agreements that can be found at the link above, it strikes IP Draughts how many person-hours must have been spent in negotiating each of those bespoke agreements. Many of them appear to use US-style contract language but in most cases the parties have agreed English law, and a three-person ICC arbitration of disputes. All very heavyweight, perhaps unnecessarily so.

IP Draughts hopes that if he keeps plugging away, solutions will emerge. He certainly hopes so.

Podcast of this article here.

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How to write a research proposal

IP Draughts is learning a new skill. He would like to establish a research centre for IP and international commerce, with a particular focus on legal relationships in the STEM field. The centre would undertake research and policy work, develop templates, and propose new ways of working. It would also provide training in IP and contracts to scientists, lawyers and others.

The skill that he needs to learn is how to write a research funding proposal. There are two audiences. First, the proposal needs to persuade a decent university to take on the team that would undertake the research. Second, the proposal needs to persuade potential funders. The funders could be a mixture of private foundations and public bodies.

IP Draughts has circulated a first draft to some friends and colleagues. He now realises how much he has to learn. His draft was based on a successful grant proposal. That proposal had some features in common with his ideas, including the need to build a team that comprises both academics and professionals. With hindsight, he should have focused more on constructing a solid argument, rather than rely on someone else’s structure.

He is grateful to have received comments back on the draft. All were kind, most provide helpful suggestions, and a few pointed out the real difficulties. Some were all three! He is working on what he hopes will be a much stronger proposal.

There are many hurdles to overcome. Some of those hurdles are probably obvious to anyone who has spent their career in academic research. They include:

  1. Generally, the need to persuade people who don’t understand the issues why the research is important, the originality and realism of the author’s ideas, and how the objectives will be achieved. This is a completely different skill from doing good research. Much as it sticks in IP Draughts’ throat, it seems that adding a few buzzwords to the text could improve its chances of success. Would you like some inter-disciplinary, geopolitical, blockchain outcomes?
  2. Will a university take on a team led by someone who is not a career academic?
  3. Outside the sciences, is the priority of university departments on teaching undergraduates and postgraduates, and associated revenue generation, rather than employing teams to conduct research?
  4. How realistic is it to raise funding from external sources, outside scientific disciplines?
  5. How do you measure success?

IP Draughts is encouraged that no-one has said his ideas are bad, and some people have been very complimentary about this aspect. If he had inherited wealth, he might be tempted just to build a team, and do the research in a private capacity, perhaps under the umbrella of a charitable trust. As it is, he will go back to the drawing board, and prepare a better draft. It may be a long hard slog to get to base camp, but if he puts his mind to it, he is hopeful of success.

If you have a serious interest in seeing the proposal (and preferably, some insights into how to make a successful research proposal), please get in touch.

Link to podcast here.

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