I came across a nice article written by CS. Monika Bhardwaj and published on Goarticle.Com. The article is reproduced from the website.

CLAUSES MAKE AGREEMENTS FLAWLESS CS. Monika Bhardwaj, B.Com (Hons.), ACS

In common parlance the terms ‘Agreement’ and ‘Contract’ are used as synonyms. But in legal jargon, these two terms are not the same. Agreement is a vital element for a contract to become valid, but it’s not a contract in itself. The enforceability of an agreement makes it a Contract. It is said that, every Contract is an agreement, but every Agreement is not a contract.

In India, the entire law covering the concept of ‘Agreement’ is embodied in the Indian Contract Act, 1972. Commencing from our day-to-day life to the important decisions of the business world everybody is exposed to either one (express) or the other (implied) form of an Agreement; whether it’s an account opening form or a joint venture / technical collaboration; agreements touch life of every person.

However, in industry, drafting an Agreement is crucial task and extreme caution is required so as to protect the interest of the concerned entity. Increasing business activities makes it imperative to carefully draft or vet an agreement since this is the stage where potential disputes can be avoided and course of actions can be framed or freezed.

The art of drafting in India has developed without the aid of formalized structure of legislation; instead, it is totally based on legal traditions. Of late, India has immensely benefited by exchanging the drafting techniques with the rest of the world. Each type of agreement has some peculiar clauses, which need extra caution and care.

The purpose of this Article is to highlight the importance of drafting an agreement vis-à-vis few important clauses in an agreement. This article shall focus on drafting the general commercial agreements. Here in this article the term ‘Agreement’ is used as a synonym of the term ‘Contract’.

Indemnity

Almost all commercial agreements have an indemnity clause, wherein one party agrees to indemnify the other from the losses / damages caused by its own acts. Such clauses are inevitable and need to be capped. Further, amount of risk involved in the indemnification needs to be compared with the benefits to be derived out of the business relationship. Indemnification for exemplary, consequential, indirect and incidental damages should be avoided. In view of the risk involved, these clauses need careful drafting. Root cause analysis is required for the existence of such clauses. If not required in a particular situation, such clauses should be avoided.

Jurisdiction

‘Jurisdiction’ determines which Court should properly adjudicate a case / dispute i.e. Competent Court. Jurisdiction means the authority to govern or legislate and such authority is derived out of the subject, type or cause of action. The clause excluding one out of two competent courts should not be against the public policy. The contract ousting the jurisdiction of the Indian courts, however, the Indian courts was not without jurisdiction. It was held that the agreement ousting the jurisdiction was void as it was opposed to the public policy [Rajendra Sethia vs. Punjab National Bank (AIR 1991 Delhi 285)]. That means, if a court in India has jurisdiction to entertain the suit and in agreement it is specifically agreed that any dispute between the parties will be submitted to a Foreign Court. Being opposed to public policy, such clause would be void. The plea that party agreed to submit to the Foreign Court will not up held. This can be considered for stay of a suit but cannot be a ground for rejection of a plaint.

Arbitration

Of late, the number of disputes in the industry has increased tremendously. Initially, the principal burden was on Courts that have traditionally captured the majority of such disputes. In an attempt to control litigation costs and expediting the process of dispute resolution, many companies are looking to employ alternate dispute resolution mechanisms commonly referred to as ADR — to avoid the lengthy court procedures. Two of the most commonly used ADR mechanisms are ‘mediation and arbitration’. Mediation is a voluntary process through which the parties meet and try to negotiate a resolution to their dispute by referring to a third-party facilitator. Arbitration is a process that results in a binding decision that the parties can seek to enforce through the courts. Arbitration through a single arbitrator, mutually appointed by the parties, is a cost effective and speedy way for dispute resolution. Generally companies seek mediation and if they fail, they prefer to refer the dispute to Arbitration. Therefore Arbitration clause is very must.

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This is the article posted by me long time back

Everybody is doing the patent search by his own approach. What is the best way to carryout patent search? Is it key word search or classification code search? People prefer mainly keywords for effective searching. Some people use classification codes also along with keywords for more precise patent search. For a keyword based patent search the selection of keyword is tough task. The patents are techno-legal documents and good patent attorneys draft patents using technical jargons to beguile competitors.

The first thing is for the patent search is to define the invention which is looking for. I t gives the clear view about the patents to the searcher which he is looking for. After understanding the invention the next step is the selection of search term. Selecting the right search term is the most critical part of the search strategy. The key points should remember that what term should contain the search results to define the invention. These terms should not be very common terms for patents. Selecting the common terms for patent search gives a lot of junk in search results which makes difficult to identify the relevant patents. Being very specific is also gives only limited search results; which results to miss a lot of relevant patents.

The advisable is the breakdown of the invention into elements and identification of synonyms, acronyms and related terms. The better word would be identification of analogous terms for this. Technical jargons are also compulsory while conducting keywords search. The analogous terms selection should be based on its relevancy to the invention appearing in patents. Sometimes an analogous term gives very vague search results. So it would be better to quick relevancy check of appearing patents using that analogous term. The US and British spelling variations also should be considered during selection of keywords. The abbreviations and plural forms also should be considered for better keyword search. The use of broader class is also important for effective keyword searching.

So it is useful to start a web search which gives basic idea of the invention and a clue for the selection of right key words to search the relevant keywords. You may begin a very preliminary patent search by writing down all the words you can think of that describe your invention and can refine to formulate the final search string based on from high recall to high precision.

Kumar Verma, Ramesh “Importance Of Patent Search And Focus On Key Word Based Search.” Importance Of Patent Search And Focus On Key Word Based Search. 20 Jun. 2007. EzineArticles.com. 15 Nov 2008 <http://ezinearticles.com/?Importance-Of-Patent-Search-And-Focus-On-Key-Word-Based-Search&id=613898>.

This is an assignment did by myself for an academic purpose only. I think this information can be utilized by learners, so I am posting this here.

Objective & Methodology

The patent searching is emerging as new business for outsourcing in India so the objective of the present study reveals the need, source and method of patent search. For carrying out this study, first a keyword search was performed in various free search engines like Yahoo, Google, AltaVista, Science direct, Scirus, etc. using different keywords. The articles retrieved were studied thoroughly and take out from those articles and personal patent search experiences have been presented in this study.

Need for Patent Search

Patents are acknowledged as a rich source of information for R&D and business strategy. Much of the information contained within patents is never published anywhere else, so patents are indeed a unique and essential information source for uncovering new technology information. There are over 30 million patents in the world today, and each year an average of one million new specifications is filed. This makes patents the largest single body of technological information available anywhere. Here are just a few examples of why patent intelligence is essential for every stage of a strategy to bring a technical innovation to the marketplace.

Download: patent-searching-ramesh-verma

Content of report:

·         Introduction

·         Objective & Methodology

·         Need for Patent Search

·         Types of Patent Search  

o   Bibliographic Search  

o   State of the art Search  

o   Patentability/Novelty Search  

o   Continuing Search  

o   Infringement Search  

o   Freedom to Use Search

o   Validation Search  

o   Rights Termination Search  

o   Family search  

o   Legal status search

o   Competitor search

o   Citation search

·         Patent Databases  

·         Searching Tools  

o   Boolean Operators

o   Wild Cards (Truncations)

o   Proximity operators

·         Formulation of Search Strategy

o   Pose the Question: What & Where

o   Identification of Proper Keywords

o   Broadening the Search (High Recall)

o   Synonyms, acronyms, alternate terms  

o   US and British spelling variations  

o   Abbreviation and plural form  

o   Narrowing the Search (High Precision)  

o   Defining Proximity

o   Use of classification codes

A very useful article has been published by Nanowerk Spotlight on patent strategies for nanotechnology inventors.  Following are the excerpts from the article

 At its simplest, a country’s patent system provides for the disclosure of information about inventions. To obtain a patent, an inventor must ‘teach’ the public how to make and use the invention in the best way the inventor knows. Thus, the patent system rewards only those inventors who are willing to share with the whole world by granting them exclusive ownership of their innovation. 

But complex technical and scientific issues means complex intellectual property (IP) issues. This especially is the case with nanotechnologies, which are not easy to classify (see: Nanotechnology and intellectual property issues). Taking the example of bionanotechnology and nanomedicine, the chapter “Patenting Inventions in Bionanotechnology: A Guide for Scientists and Lawyers” in the recent book Bionanotechnology: Global Prospects discusses the importance of securing valid and defensible patent protection for any player interested in bionanotechnology commercialization.   Read the full article