Urgent crowd sourcing request-- "ugly" clauses in IP agreements

Alexander Tsoutsanis of DLA Piper has sent the following urgent request directed to Kat readers.

“Words will be words, but sometimes words end up in litigation, quite often in connection with interpreting agreements. Recent cases in the Netherlands have dealt with nitty-gritty questions such as whether a clause imposing a penalty sum 'per product' is to be calculated 'per item' or 'per category'. Another case came to grips with the issue of what a 'reserved sector' in a patent license actually means.

In connection with a teaching project for patent attorneys, Alexander Tsoutsanis is now crowd- sourcing vague and ambiguous clauses in IP agreements, both of the contentious (i.e. cease-and-desist declarations and settlement agreements) and non-contentious (joint-ventures, licenses and the like) kinds.

All clauses will be anonymized, no reference to any contracting parties will be made and are solely to be used for teaching purposes. If such clause has been mentioned in a published judgment, a case reference would also be appreciated. Please submit any clauses immediately (before 28 October, if possible) to alexander.tsoutsanis@dlapiper.com.”
Urgent crowd sourcing request-- "ugly" clauses in IP agreements Urgent crowd sourcing request-- "ugly" clauses in IP agreements Reviewed by Neil Wilkof on Thursday, October 27, 2016 Rating: 5


  1. I have more of a problem with abusively worded Non Disclosure Agreements, which you can't really discuss intelligently when you are the supplicant...

  2. Poorly drafted contracts in omitting key definitions non-shocker. What do you expect when non-specialists simply pull down a bunch of precedents and simply fiddle around with the "important-looking" clauses?

  3. GNU GPL v.2 - need I say anything more?

  4. Legal documents that refer to themselves (as many do) can easily lead to logical paradoxes, in a Godel-esque sort of way. For example, an NDA will often exclude from its scope of protection information that is already in the public domain, or that becomes public "other than as a result of a violation of this agreement". However, if the receiving party does put some received information in the public domain, all it then has to do is assert that there was no violation because the information it published was excluded from the scope of the agreement by this clause, and this assertion is logically true.

  5. Speaking of self referential legalese, I have always been amused at the statute defining infringement of a process claim, s60(1)(b)):

    60.-(1) Subject to the provisions of this section, a
    person infringes a patent for an invention if, but
    only if, while the patent is in force, he does any of
    the following things in the United Kingdom in
    relation to the invention without the consent of the
    proprietor of the patent, that is to say -
    (a) ...
    (b) where the invention is a process, he
    uses the process or he offers it for use in
    the United Kingdom when he knows, or it
    is obvious to a reasonable person in the
    circumstances, that its use there without
    the consent of the proprietor would be an
    infringement of the patent

    So it is an infringement is it is an infringement, mkay.


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