tag:blogger.com,1999:blog-5574479.post618138844614479772..comments2024-03-28T13:23:33.281+00:00Comments on The IPKat: Trial judge says "Boileau" to patent licence; appeal court agreesVerónica RodrÃguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-17063889971516532212009-07-15T14:29:59.779+01:002009-07-15T14:29:59.779+01:00"The IPKat has complained about bad drafting ..."<i>The IPKat has complained about bad drafting on numerous occasions</i>"<br /><br />An incredible amount of bad drafting comes from ignorant arrogant business types who crib together agreements from every contract they've ever seen.<br /><br />Subsequent attempts to negotiate arouse suspicion and antagonism.<br /><br />Subsequent attempts to seek clarification arouse resentment (for example, references to non-existent paragraphs).<br /><br />This is the sort of environment (factual matrix, if you will) that gives rise to these contracts. I think that this is the world that Justin sees, as do I.gygeshttp://nodeinthenoosphere.blogspot.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45745243201436854172009-07-15T10:07:45.675+01:002009-07-15T10:07:45.675+01:00Justin, nice try, but I don't think bad drafti...Justin, nice try, but I don't think bad drafting can be justified on the basis that the parties didn't have the time or energy to get it right in negotiations. It may be a plea in mitigation of sentence, but it is not a good defence.<br /><br />I wondered whether you were referring, in part, to what is sometimes called "constructive ambiguity", ie where the parties reach an effective stalemate in their negotiation of a point, and leave the wording ambiguous, each party hoping that the court will interpret it in their favour (notwithstanding the contra proferentem rule). Commercial pressures may lead to this outcome, but I think the draftsman should try to minimise its occurrence.<br /><br />There is another type of bad drafting, which (according to Prescott) is illustrated by the Oxonica case, namely that cutting and pasting wording from old agreements, without careful thought, can lead to disaster. This issue has little to do with negotiating pressures, particularly where we are talking about the first draft that is presented for negotiation.<br /><br />Having said this, some of the judicial comments about bad drafting stick in my throat, particularly when they come from judges who, one suspects, have little experience of contract drafting. Lewison J is an honourable exception to this (I keep his book under my pillow), and I wish he were given all the cases concerning the construction of IP agreements, even if they do concern complex technology.Mark Andersonhttps://www.blogger.com/profile/14407839707461689152noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-37788487062015126682009-07-13T15:29:30.761+01:002009-07-13T15:29:30.761+01:00Justin: I stand by my comments. At the point at wh...Justin: I stand by my comments. At the point at which commercial deals are concluded, the 'big arguments' are obviously the drivers. But down the line, when one party is unhappy with (i) the deal itself or (ii) the other party, the 'small arguments' are often the fulcrum upon which leverage into variation of the terms, or a completely new deal, turns. To say that "it is rare that these things ... cannot be sorted out commercially" seems to miss the point, which is that they have to be sorted out at all -- which can be at the cost of inconvenience and uncertainty to one or both parties even if, as is fortunately usually the case, there ends up being nothing to litigate.<br /><br />The ex ante issue can be addressed in much the same way. Clauses can get litigated not because they're bad clauses per se but because one or possibly both parties are unhappy with what the 'big argument' has left them with. <br /><br />I agree with you that, where an ambiguity is not entered into with eyes wide open, it's bad drafting and there's no excuse -- but I'm reluctant to agree that the fact that a party enters into a contract fully conscious of the ambiguity of a provision suddenly cures it of being bad drafting.Jeremyhttps://www.blogger.com/profile/01123244020588707776noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-78842085466182565972009-07-13T15:15:04.346+01:002009-07-13T15:15:04.346+01:00I can't agree with equating "ambiguous&qu...I can't agree with equating "ambiguous" and "bad". Commercial deals work because (to paraphrase Robin) what matters are the big arguments. In many - perhaps most or even all - deals, there are possible future issues on which the parties would not agree. But it is rare that these things materialise and cannot be sorted out commercially - I doubt more than 0.001% of contractual clauses end up litigated. <br /> <br />The complaints from the courts about poor drafting arise because the courts deal ex post with individual agreements, and are not concerned ex ante with efficiency of expenditure or with maximising benefit from the statistical mass. Ex ante, there are many issues where the investment in sorting them out is outweighed by the remoteness of the chance the issue will materialise, the consequences if it does, and the potential of the discussion to undermine the parties' trust and confidence in each other. It's often the case that both parties know there is a botch, and don't want to touch it. A botch job that both sides can live with, to sort out in court if and when things go sour, is often preferable to negotiations on a theoretical point. Even if the theoretical point later turns out to be realised. <br /> <br />Then again, if the ambiguity is not entered into with eyes wide open, it's bad drafting and there's no excuse.Justin Wattshttp://www.freshfields.com/people/profile/11/58844noreply@blogger.com