Three enjoyable years

Today is the last day of IP Draughts’ 3-year term as chairman of the IP Law Committee of the Law Society of England and Wales. Tomorrow, Carolyn Pepper officially takes over. He wishes her all the best in the role over the next 3 years.

It sounds like a cliché to say that people grow into a role, but the phrase resonates with IP Draughts: as he performed the role, he developed the skills and confidence to perform it better.

It has been a real pleasure to work with a talented and dedicated group of people on the committee in pursuit of a common cause. IP Draughts also enjoyed working with others, including:

  • some talented and committed people at the Law Society, including our policy adviser, and former committee secretary, Lauren Rabaiotti
  • representatives of other IP professions, including the IP Bar Association, CIPA, CITMA, the IPLA and the IP Federation
  • representatives of the UK Intellectual Property Office and other government departments and agencies, including some representatives of the Ministry of Justice.

Among many highlights were having the opportunity to give oral evidence to committees of the UK Parliament:

  1. Together with Matthew Harris of the IP Law Committee, and Vicky Salmon of CIPA, IP Draughts gave oral evidence to the House of Lords’ Public Bill Committee that considered the Bill that eventually became the Intellectual Property (Unjustified Threats) Act 2017, and negotiated changes to the text of the draft Bill with representatives of the Law Commission and the Parliamentary Draftsman’s office.
  2. Together with Daniel Nelki, then in a senior role at Wellcome Trust, he gave oral evidence to the House of Commons’ Science and Technology Committee, in relation to its inquiry into technology transfer.

Now, IP Draughts would like another public/legal role that will make use of the chairing skills that he developed with the IPLC, and the legal skills that he has developed over the last 39 years. If you hear of anything, please let him know…

 

 

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Three cheers for the manicule

This golden oldie has a timeless quality, and gives IP Draughts another excuse to use a manicule. (No, not manicure, mr predictive text.)

IP Draughts

Lord Denning MR was arguably the most important English judge of the twentieth century.  As first-year law students at university, IP Draughts and his fellow student, Andy Livesey, sent Lord Denning a telegram to congratulate him on his 81st birthday, and received a very nice letter in reply.

In the area of contract drafting, one of the more striking of Lord Denning’s judicial comments was about the need for a “red hand” in the margin of a contract, to point to a one-sided contract term.  This comment was made, obiter dictum, in the case of J Spurling Ltd v Bradshaw[1956] EWCA Civ 3.  What he actually said was:

I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of…

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Is it unethical to be a b*****d?

Confidentiality agreements have been hitting the news in recent months. If it isn’t Harvey Weinstein, it is Donald Trump. Their circumstances are different, but they both seem to have required people to sign detailed, and very one-sided, non-disclosure agreements (NDAs).

This should be good news for IP Draughts, as the author of a Law Society book on drafting confidentiality agreements. But somehow, he doesn’t think the lawyers acting for these gentlemen are likely to be purchasers. And even if they are, they won’t find any mention of the extraordinary clauses that are said to be included in their NDAs. Perhaps that is a new feature that we should include in the 4th edition.

Increasingly, IP Draughts is seeing commentary on the ethical issues for lawyers who advise on extreme NDAs. This is part of a larger issue of whether lawyers should uncritically follow their client’s instructions, however dodgy those instructions may be. Professor Richard Moorhead of UCL has been particularly prominent in this field, with a string of interesting articles about what he calls “solutions-focused but ethically neutered lawyering”.

If you think this problem is confined to a particular type of noisy, low-grade lawyer, think again. The House of Commons Women and Equalities Committee had some tough questions for partners in Allen & Overy about one of the cases in the news.

All of this prompts in IP Draughts’ mind the question of how far a lawyer should go in his or her client’s interests.  Sometimes, clients want a lawyer who is an aggressive b*****d. Some law firms in the City of London have made it part of their selling point that they are “tough but fair” in litigation or negotiations. By this, they mean that they will comply scrupulously with their ethical obligations (as they see them), but they will go right up to the boundary of what is acceptable and, staying on the right side of the line, make life as miserable as possible for their client’s opponent.

If you are dealing with hard-nosed corporate clients, perhaps such an approach is acceptable and commonplace. But if you are dealing with individuals, such as women who are pursuing claims of personal misbehaviour against rich tycoons, does the boundary of what is ethical shift? And is it appropriate to operate right at that boundary? Behaviour that may seem conventional in other circumstances, eg all-night meetings to discuss the terms of an NDA, or fielding a large team of experienced lawyers against a lone, junior associate, may become inappropriate by default, because no-one has stood back from the situation and questioned the status quo.

IP Draughts may not be the best person to comment on being tough but remaining within acceptable bounds. One of his longstanding but occasional clients, whose judgment he respects, recently told him that his trouble was that he was “too nice”. The implication seemed to be that he would have been instructed more if he had been less nice. And he still remembers the time, about 30 years ago, when as a junior associate he refused to work all night on an agreement, just because his opposite number’s boss (a partner in one of the biggest London law firms) thought it would be a good idea. His refusal was regarded as extraordinary. But the world didn’t come to an end, and everyone was much fresher mentally when they resumed work on the draft agreement the next morning. This wasn’t niceness, it was not following convention when it didn’t make sense.

If you are going to be an ethical b*****d, you have to work really hard to make sure you don’t stray over the line. And be aware that the position of the line may change, for reasons outside your control. Much better for your peace of mind to stay back from the line in ethically secure territory, and be nicer than you need to be or even, sometimes, your client wants you to be.

 

 

 

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Most interpretation clauses are a waste of time

This evergreen blog posting discusses interpretation clauses – why are they so extensive and prominent in City law firm templates?

IP Draughts

masculineMany contracts have them. The clause that informs the reader that the singular includes the plural, the masculine embraces the feminine, and similar nonsense. Some lawyers like to put these provisions ‘front and centre’ in the contract, immediately after the definitions, in clause 1.2.

It has always amazed IP Draughts that lawyers would want to make these turgid provisions so prominent. His instinct is to hide them at the back of the contract, if he includes them at all.  Putting them at the beginning  forces the reader wade through them before they get to the heart of the contract. It feels like the drafter is showing off their legal expertise, signalling that contracts need formulaic legal language, which only lawyers can fully understand.

To illustrate the point, IP Draughts has reproduced below some clauses from the first contract he found in his files. The contract was drafted by a well-known…

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