IP Draughts

IP Draughts was, at first, excited to see new guidance from the UK Competition and Markets Authority, which has just been published:

“in response to sector concerns that competition law may inhibit collaboration, strategic partnerships, or transformation activity. It also reflects priorities highlighted in the Universities UK Transformation and Efficiency Taskforce and supports the government’s wider vision for sector sustainability.”

Oh good, he thought. Some practical guidance on situations in which there are no competition law concerns. See Collaborating with other higher education providers – GOV.UK

After reading the guidance, he is disappointed. Perhaps it is useful in identifying a few situations in which competition law concerns are unlikely to arise. But most of the document does little more than recite the types of analysis that are required for any organisation, with links to other government documents that are more business-to-business focused. The advice could be summed up as “it’s complicated” and “consult a specialist lawyer”.

IP Draughts has an impression of a project that started with the best of intentions, but through cautious, lawyerly drafting has ended up no more helpful than other materials that are already available. Perhaps it is unrealistic to expect government to do more. But for non-specialists, the final product is very high level, and doesn’t provide much practical reassurance. For example, what is a senior university manager supposed to do with the following piece of guidance:

• make sure that any reduction in competition brought about by collaboration does not go beyond what is strictly necessary to achieve its beneficial goals

IP Draughts would have liked to have seen something bolder, with strong graphics, saying something like:

You are proposing to enter into a multi-party collaboration agreement with other universities and industry partners. Here are some common situations in which the terms might be considered unlawful and on which you may need to take legal advice:

(1) Obligations not to engage in any other activities in the same field as the collaboration…

[etc]

IP Draughts and his colleagues have written numerous, published template agreements, including those that appear in Knowledge Exchange UK’s Practical Guides series, and most of those that feature in Knowledge Transfer Ireland’s set of model agreements: https://www.knowledgetransferireland.com/Model-Agreements/. Other Anderson Law templates appear in various commercial publications, including a forthcoming book (to be published later this year by Bloomsbury): Drafting Agreements in Life Sciences. https://www.amazon.co.uk/Drafting-Agreements-Life-Sciences-Anderson/dp/1526532417

It was interesting to read a recent UK Supreme Court decision on the interpretation of template agreements. Providence Building Services Limited (Respondent) v Hexagon Housing Association Limited (Appellant) [2026] UKSC 1. https://supremecourt.uk/uploads/uksc_2024_0130_judgment_4957afaf10.pdf The case concerns a specific type of template agreement, namely one issued by a trade body, and in general use in the construction sector. It is called the JCT (Joint Contracts Tribunal) Design and Build Contract (2016 edition).

The case concerned the interpretation of a termination clause in the JCT contract. Specifically, the clause allowed termination if there was a repeated breach (in this case, late payment of monthly invoices by the Employer). The detailed, interpretation issue is probably not of general interest; readers can study the judgment of Lord Burrows (with whom all the other judges agreed) if they are interested. A few points that interested IP Draughts were, in brief summary:

1. Lord Burrows recited the general approach of the English courts to interpreting contracts, as set out in a series of well-known Supreme Court cases. This requires the court to identify the objective intentions of the parties. In the present case, as Lord Burrows noted, counsel for the Employer argued that, in the case of template agreements, a different approach was required, namely “the aim is to effect the intention of the person who drafted the standard form contract rather than the objective intentions of the contracting parties”. As a drafter of published template agreements, IP Draughts could see a new line of work opening up, giving evidence to courts of his drafting intentions! But Lord Burrows dismissed this argument. In the case of industry-standard template agreements, it might sometimes be appropriate to assume that the contracting parties intended a meaning consistent with that of other users of the template. And if the wording had been revised to reflect an earlier court judgment on the template, it might be appropriate to take that into account when interpreting the meaning. But these are nuances that don’t affect the fundamental task which is to identify the objective intentions of the parties, rather than the drafter’s intention.
2. In effect, the Supreme Court agreed with the judge at first instance, the deputy judge Adrian Williamson KC, and overruled a unanimous Court of Appeal.

On a personal note, Adrian was in the same year as IP Draughts at bar school (the Inns of Court School of Law, in London), and was very kind to IP Draughts when he felt completely out of his depth coping with both bar school and living in a big city for the first time. IP Draughts had an impression of someone who was bright, capable and quietly self-confident, and in more recent years he was a little surprised that Adrian didn’t become a full-time judge.

This blog has previously commented on UK government plans to replace the 2014 EU Technology Transfer Block Exemption Regulation (EU TTBER) in the UK, when the EU TTBER expires in April this year.

To recap, following Brexit, the UK continued to accept that technology transfer agreements (mostly patent and know-how licence agreements) which met the requirements of the EU TTBER would be exempted from breaching domestic UK competition law, in the form of Chapter I of the Competition Act 1998. The EU TTBER is one of the “assimilated exemptions” under the Act. See section 10 of the Act.

As the EU TTBER will expire in April this year, the question arises as to what, if anything, should replace it in the UK. Back in September 2025, this blog ran a poll that asked readers this very question. The results were:

1. Continue with the 2014 TTBER: 17%
2. Adopt any new TTBER that the EU introduces: 40%
3. Introduct new guidance similar to that in the USA: 23%
4. Don’t bother with any regulation or guidance: 20%

See https://ipdraughts.wordpress.com/2024/09/07/what-shall-we-do-with-the-ttber/. IP Draughts favoured option 2, as it seems unnecessary to create rules that differ from those in the EU. The international nature of most IP licensing makes it desirable, in IP Draughts’ view, to have consistent rules across borders.

However, the relevant UK regulator, the Competition and Markets Authority, had other ideas. It is tasked with making recommendations to the UK Secretary of State on the content of any block exemptions from Chapter I of the Act. As reported by this blog at the end of September, the CMA recommended a statutory Order, mostly following the 2014 TTBER, but with a few changes described in the blog article. See https://ipdraughts.wordpress.com/2025/09/30/what-shall-we-do-with-the-block-exemption-early-in-the-new-year/

This approach raises the possibility of a gap emerging between UK and EU competition law in this area, which (as mentioned above) IP Draughts considers to be undesirable.

Today, IP Draughts received an email from the CMA indicating that the Secretary of State had accepted the CMA’s recommendation. See Draft Technology Transfer Agreements Block Exemption Order – GOV.UK

The link immediately above sets out the proposed changes and invites people to comment via email to competitionpolicy@businessandtrade.gov.uk

IP Draughts looked today for information on the European Commission’s website on what will replace the 2014 TTBER. He didn’t find anything more recent than last September, when the EC issued various documents for consultation, including this guidance note on proposed changes in a 2026 TTBER. The note appears mainly to address new types of licensing arrangement, rather than making substantive changes to the lists of hardcore and “grey” provisions in the 2014 TTBER. See https://competition-policy.ec.europa.eu/document/download/d21f5efc-eb18-4012-9b11-e040b4467605_en?filename=2025_TTBER_explanatory_note_all-EU-languages_1.zip

If you know better what is happening at the EU level, IP Draughts would be interested to hear.

This is a guest post by IP Draughts’ colleague Stephen Brett, who knows far more about IP policies in public bodies than IP Draughts does.

Amid much excitement (at least in the tech transfer world), the 2025 NHS IP Guidance has landed.  The soundbites promise that the Guidance will remove archaic red tape and streamline innovation.  This is quite an ask for a document that sets out good practice for ‘those responsible for the management of IP within or on behalf of an organisation providing or commissioning NHS services’.  By my reckoning, there are around 202 NHS Trusts, and some multiple of that number of organisations that provide or commission NHS services.  Each will have their own unique characteristics, concerns and priorities so providing guidance that is relevant across the board is a challenge. 

Even so, I think the 2025 Guidance does a good job – especially if you step away from the soundbites and consider the content and the underlying principles that it promotes.

The previous guidance, the 2002 Guidance, focussed on NHS ownership of IP and devoted most of its paragraphs to patented IP and to the possibilities of exploitation by spin out.  In those happy days, the Nokia 6310 was a thing, we were reading about Who Moved my Cheese and were being told What Not to Wear while hoping that President Bush’s White House really did work as President Bartlet’s White House in the West Wing.  This blogger was joining Isis Innovation in Oxford and taking his first tentative steps in the world of university technology transfer (!) 

Fast forward twenty-three years, and the 2025 Guidance is a different read.  It emphasises the not-so-sexy but crucial importance of having clarity in IP arrangements and of ensuring that the NHS can realise a return on the contribution it makes (whether financial or otherwise). 

In a little more detail, the 2025 guidance:

• Acknowledges the possibility that dissemination without commercial return is a valid approach to innovation and that ‘return’ for the NHS doesn’t automatically equate to a revenue stream;
• Emphasises the importance of having supporting IP arrangements in place such as an institutional IP Policy, appropriate employment terms and collaboration agreements.  As you might say – administratively burdensome (boring?) but critical;
• Embraces the oft-forgotten reality that there is considerably more to IP than patents.  Too great an emphasis on patent protection often obscures the possibility that ‘lesser’ IP rights exist and may be quicker to obtain, cheaper (or free) to maintain and more agile;
• Offers pragmatic help by presenting a consolidated approach and a clear ‘to do’ list, alongside a series of model agreements (on which I will say more next year);
• Recognises that many NHS Trusts do not (yet) have the internal expertise to manage their IP portfolios and encourages them to seek help from Technology Transfer Capabilities.

Is the 2025 Guidance a radical new departure?  It sets out solid, down-to-earth advice that should be useful for those NHS Trusts who are just embarking on their IP journeys.  But much of what it says is not new:

• The 2025 Guidance gives a strong steer to the NHS on how IP should be managed.  It sets out a process and (rightly) promotes the importance of back-office fundamentals like coherent IP Policies.  By setting out a common approach, it promotes consistency across the NHS.  That is a Good Thing that will only help the innovation process.  But the Guidance draws on lessons learned in the HEI field some years ago.  It consolidates and promotes what is already common practice for the academic sector, rather than setting out a novel regime.
• The 2025 Guidance shifts away from the 2002 emphasis on the NHS owning the IP and on commercialisation by spin out.  Both of those shifts are Good Things – not least because any NHS Trust that wants to spin out a company needs Secretary of State approval.  But funders of research that takes place within the NHS have taken this position for some time: the NIHR funding terms assume that the funding recipient (often an NHS Trust) will own the outputs of the funded research but allow for deviation from that position.  Similarly, the MRC funding terms assume that, unless agreed otherwise, the party that generates the IP should own it.  Neither insists that the NHS must own the IP.
• The 2025 Guidance has an explicit focus on ensuring that the NHS is recognised for its contribution to the creation or development of IP.  This is definitely a Good Thing.  But, again, this reflects growing practice – albeit that my sense is that it is a common practice and not an automatic practice.  It isn’t really new practice.  Since at least 2019, the NIHR funding agreement has assumed that commercialisation agreements should reflect the relative contribution of all parties involved.  The Goldacre Review of April 2022 welcomed the commercial use of data and wanted to ensure that benefits accrued to the NHS even where there was no revenue.  The NHS Guide to Effective NHS Data Partnerships, which dates from 2023, sets out principles that include ensuring fair terms for the NHS and safeguarding the value of the data concerned.  Both the current (ie 2025) and the previous (ie 2018) iterations of the Brunswick template collaboration agreement assume that collaborators will share a fair and reasonable revenue based on their respective contributions.

So, in my mind, the 2025 Guidance is a Good Thing. 

It is not really groundbreaking, but it sets out a pragmatic approach and emphasises the essential requirements for managing IP responsibly.  Much of its content will be familiar to universities and to those NHS Trusts that are already active in the research space.  But that does not detract from its value.  It promotes consistency.  The content provides a good grounding in the field for those NHS Trusts that do not currently engage in research or deal with IP.  In my own mind, it is those NHS Trusts that have the most to gain from this Guidance and, I suspect, it is those NHS Trusts that are intended as the 2025 Guidance’s primary audience.  How successful the 2025 Guidance is will, however, be up to those who choose to adopt it.