Monday, 23 May 2016

IP3 and lawyers' core skills revisited

Good contract drafting:
not a core skill for lawyers?
Last week, in"Would you sell your family?" (here), this weblog commented on the IP3 programme for the rapid evaluation and purchase of qualifying patent families containing at least one US granted patent. Yesterday seasoned IP transactional expert Mark Anderson added some comments of his own on the IP Draughts weblog, in this piece called "Another patent purchase programme: IP3". In short:
" ... IP Draughts revisited the terms of the Google agreement of last year [discussed by Aistemos here and analysed by IP Draughts here]. He discovered that some of the drafting mistakes that he had identified had been corrected, but many others remained.

Comparing the new agreement for IP3 with the older Google agreement, it is clear that some of the text of the older agreement has been copied and pasted into the new one. Other parts of the new agreement are very different. IP Draughts has the impression that the drafter has taken their own, favoured template, and bolted in provisions from the earlier agreement, perhaps in response to specific instructions from their client.
Anderson identifies a number of criticisms of the new document, including sloppy and inconsistent drafting, but concludes:
"Overall, IP Draughts prefers the IP3 agreement, but neither document is well drafted. In some areas, as mentioned above, the Google agreement is better. For example, both agreements refer to the possibility that the assignor may have licensed the patents, but only the Google agreement specifically asks the assignor to deliver the licence agreements (see Exhibit A); section 3.5.2 of the IP3 agreement should have included this item in its list.

IP Draughts is left with the impression that both of these agreements have been drafted by patent attorneys who are focussed on the technical process of transfer of title to patents, and who lack some of the skills required to draft contracts clearly and accurately. Perhaps their clients do not demand such clarity, and instead assume that patents (including patent transactions) are a difficult technical subject that they can’t and don’t need to understand. If so, that is a shame. We are told that a revolution is coming in the way in which law is practised. Lawyers who are inward-looking and focus only on their core skills may find they are less marketable to employers and clients in future".
The final sentence, regarding inward-looking lawyers and the need to expand beyond core skills, touches upon another issue raised on this weblog last week. In "Rating risks in intellectual property: a choice dish on the law firm menu?" (here) we reviewed Donal O'Connell's comments on the possible role of law firms in providing IP risk management. The problems encountered with venturing outside one's core competencies are many and varied, which is why core competencies are so assiduously cultivated. Failure to solve those problems, or to sell a convincing case to clients that a firm can provide services that lie well beyond the norms, is the reason why so many brave new law firm initiatives fall flat.  In this case, however, it is depressing to think that "the skills required to draft contracts clearly and accurately" are considered to lie outside a lawyer's core skills.

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