[pp.int.general] Fwd: [New post] One-sided contract term of the day (5): powers of attorney

Sun Mar 4 18:02:27 CET 2012

this series of articles on ip draughts is so very nice for understanding 
collaboration and its many pitfalls.

/a

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Subiect: 	[New post] One-sided contract term of the day (5): powers of 
attorney
Dată: 	Sun, 4 Mar 2012 14:41:35 +0000
de la: 	IP Draughts <donotreply at wordpress.com>
Către: 	teirdes at gmail.com

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    New post on *IP Draughts*

<http://ipdraughts.wordpress.com/author/markandersonlaw/> 	

    One-sided contract term of the day (5): powers of attorney
    <http://ipdraughts.wordpress.com/2012/03/04/one-sided-contract-term-of-the-day-5-powers-of-attorney/>

by Mark Anderson <http://ipdraughts.wordpress.com/author/markandersonlaw/>

<http://ipdraughts.files.wordpress.com/2012/03/unbalanced-scales.jpg>We 
continue our series highlighting IP Draughts’ “favourite” one-sided 
provisions in contracts.  These provisions are often found in contracts 
where there is an imbalance of power between the parties, and where the 
party with the power (let us call him the “Patron”) seeks to reduce a 
sometimes theoretical risk by imposing it on the other party (the 
“Supplicant”).

Today’s one-sided term is:

*The Supplicant hereby irrevocably appoints the Patron as his Attorney 
in his name to execute any document and do any act or thing which the 
Patron considers necessary or desirable to comply with the Supplicant's 
obligations under this Agreement.*

A provision of this kind sometimes appears in intellectual property 
assignments.  For example, IP Draughts has seen such a provision in many 
assignments of inventions from an academic inventor to his employing 
institution.

<http://ipdraughts.files.wordpress.com/2012/03/legal-power.jpg>The 
provision gives the Patron the legal power to sign documents in the name 
of the Supplicant and make the Supplicant be bound by those documents as 
if the Supplicant had signed them. For present purposes, we are 
considering a general power of attorney and are not considering the 
special type of power of attorney that is obtained from an elderly 
person who is becoming infirm and who wants a near relative to look 
after their affairs.

An argument that is used for including such a provision is that the 
inventor may leave the institution and be difficult to locate.  It may 
be necessary to file documents with national Patent Offices at short 
notice, and the patent application should not be delayed or prejudiced 
by the absence of an inventor's signature on a document.

<http://ipdraughts.files.wordpress.com/2012/03/student-power.jpg>This is 
a valid argument, particularly in the case of a student inventor who 
leaves a university without giving the academic department a forwarding 
address, or who uses their parent's address and collects post from the 
parental home on an infrequent basis.

On a personal level, IP Draughts would be uneasy about giving anyone a 
power of attorney and as far as he can recall (!) he has never done so.  
In the unlikely event of him becoming an inventor and assigning his 
invention, he would prefer to make reliable arrangements for ensuring 
that he can be contacted at short notice to execute documents.

<http://ipdraughts.files.wordpress.com/2012/03/hairdresser-power.jpg>Giving 
someone a power of attorney when both parties are on the same side or, 
to use the jargon, "their interests are aligned" is understandable.  
Less understandable, from IP Draughts' perspective, is giving someone a 
power of attorney so that they can force you to do something that you 
don't want to do.  Occasionally, the latter provisions appear in 
contracts.  It might say something like, in situation X you will bring 
legal proceedings against Y and if you refuse to do so we can do so in 
your name, and to that end you sign this power of attorney.  A party 
would want to think very hard before agreeing to this kind of provision.

<http://ipdraughts.files.wordpress.com/2012/03/power-cut-off.jpg>Another 
variant is the power of attorney that an overseas patent attorney 
sometimes asks a client to sign, to enable the patent attorney to 
represent the client before a national Patent Office.  That last 
sentence is confusing, in that the word attorney is used in slightly 
different senses in the phrase "power of attorney" and "patent 
attorney".  IP Draughts was tempted to substitute "patent agent" to make 
it easier to read, but that might lead us down the blind alley of 
discussing the conceptual difference between an agent and an attorney.  
That will have to wait for another day.  For a discussion of the 
difference between an attorney-at-law and an attorney-in-fact, as those 
terms are used in the US, see this Wikipedia article 
<http://en.wikipedia.org/wiki/Attorney-in-fact>.

In principle, it seems understandable that (a) a patent attorney/agent 
(let's call him a representative, to avoid confusing IP Draughts' mind 
any further) may require written authority to act on a client's behalf 
before a national Patent Office, and (b) the representative requires the 
authority to be in the form of a power of attorney (although that would 
not a conventional way of appointing a representative in the UK).

<http://ipdraughts.files.wordpress.com/2012/03/faustian-deal.png>What is 
less understandable, from IP Draughts' perspective, is the detailed 
wording of some of the powers of attorney that overseas representatives 
require to be signed.  IP Draughts has seen documents that give very 
broad authority to open bank accounts, purchase land, employ staff, 
commence and settle litigation, etc.  Sometimes, the representative is 
not willing to change wording in their template, and sometimes clients 
are not willing to spend time and money in debating the wording.  In 
those circumstances, the best you can do may be to point out the issue 
and let the client take a view on whether the risk is one they are 
willing to take.

*IP Draughts' scoring for extremeness: 7/10*

*Mark Anderson 
<http://ipdraughts.wordpress.com/author/markandersonlaw/>* | March 4, 
2012 at 2:41 pm | Categories: Contract drafting 
<http://ipdraughts.wordpress.com/?cat=6320269>, General Commercial 
<http://ipdraughts.wordpress.com/?cat=51310456> | URL: 
http://wp.me/p1q8Xf-1c0

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