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The Confidential Disclosure Agreement (“CDA”) is widely used in the Life Sciences Sector, and provides protection for a key asset – a party’s confidential information and trade secrets.  This post does not propose to go through the various possible provisions of a CDA or their negotiation, but instead sets out five practical considerations to take into account when preparing and implementing a CDA.

1. Absolute protection?

Each CDA will provide for certain legal remedies in the event that the other party breaches the agreement, however once an important piece of confidential information is made publicly available it can be difficult or impossible for a party to obtain adequate compensation.  It is stating the obvious to note that the best way to keep confidential information confidential is not to disclose it, however this is sometimes forgotten where a CDA is in place.  On a case by case basis, it is important to consider, prior to disclosure, whether a particular piece of information really needs to be disclosed for a given commercial deal.
Continue Reading The CDA – Five Practical Considerations

Non-disclosure or confidential disclosure agreements (“NDAs”) play an important role in the life science sector and are frequently used to allow parties to disclose information to each other as a prelude to a larger corporate or commercial transaction.  The English courts have recently given us a timely reminder of the care that needs to be taken when drafting an NDA.

In Dorchester Project Management Ltd v BNP Paribas Real Estate Advisory & Property Management UK Ltd ([2013] EWCA Civ 176) Dorchester brought the possibility of acquiring a property development site to BNP Paribas’s attention, but made BNP Paribas enter into an NDA before disclosing commercially sensitive information to it. Both parties understood when they entered into their NDA that BNP Paribas would refer the opportunity to acquire the site to one of its clients. BNP Paribas was required to enter into a back-to-back NDA with its client before passing on any confidential information about the site.
Continue Reading The Unintended Consequences of Non-Disclosure Agreements

Taking a licence from a university or other academic institution raises specific considerations in addition to those that would normally apply in a purely commercial setting.  We set out below ten key considerations for any commercial entity taking a licence from a university in the EU.

1. Continuing academic research in the field and publication rights

Commonly a university will wish to continue to carry-out research in the field within the scope of the licence for academic purposes leading to a risk of intellectual property/confidential information leakage.  Where the university is a charity, it will often have an obligation to publish results in the public interest.

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Continue Reading Ten Considerations When Taking a Licence From a University

On 11 July 2013, the ABI published the findings of its extensive review of processes for initial public offerings (IPOs) and secondary capital raisings in the UK public market.  The ABI Report follows a government-funded independent review by Professor Kay (released July 2012), which examined investment in UK equity market and its impact on the long-term competitive performance and governance of UK quoted companies.  As institutional investors with in excess of £1.8 trillion of funds under management, ABI members have a strong interest in ensuring the continued health of the UK equity market.
Continue Reading The Association of British Insurers (ABI) Publishes a Review of Capital Raising in the UK Market

Overview

A one-way jurisdiction clause (also known as “hybrid”, “asymmetrical” or “unilateral non-exclusive” jurisdiction clauses), requires that one of the parties to a contract must always submit a dispute arising from the contract to a particular country’s courts, whilst allowing the other party the flexibility to commence proceedings in the courts of any country it may choose.

One-way jurisdiction clauses are becoming more prevalent in Life Science transactions where, by way of example, licensors want the flexibility to deal with patent related disputes in the courts of the country where the patent is applied for or granted.

Recent court decisions in a number of jurisdictions have questioned the validity of one-way jurisdiction clauses.

To maximise the likelihood of a one-way jurisdiction clause being enforceable, consider taking the following steps:

  • choose as governing law the laws of a jurisdiction that recognises the validity of one-way jurisdiction clauses;
  • include in the one-way jurisdiction clause an explanation of why the unilateral right to bring proceedings in a second jurisdiction is required – many of the recent decisions on the validity of one-way jurisdiction clauses focus on the lack of fairness to one party; if there is an objective reason for making the jurisdiction clause it may give better arguments to defeat this “unfairness” defence;
  • if you know at the outset that disputes are likely to arise in certain jurisdictions, take local law advice on the enforceability of one-way jurisdiction clauses in these jurisdictions before executing the contract;
  • consider presenting a one-way jurisdiction clause as a non-exclusive jurisdiction clause.
    Continue Reading The Perils of One-Way Jurisdiction Clauses

OBR is a dynamic and energetic organisation which was founded in 2011 in Oxford, UK and now has chapters across the UK and the US.  OBR’s mission is to engage academic and industry communities on-campus to foster a conversation about the health care and life sciences industry.  OBR seeks to create a global network of academic innovators across disciplines, to connect them with each other and the industry resources necessary to move ideas forward.
Continue Reading Spotlight on Oxbridge Biotech Roundtable (OBR)

Article originally published in PLC Life Sciences Handbook 2012

M&A in the life sciences sector has remained robust, driven by factors such as:

  • „„ The need to replenish shrinking product pipelines.
  • „„ The need to maintain revenues as patents on top-selling
  • products expire.
  • „„ The strategic diversification of business lines.
  • „„ Expansion into emerging markets.

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Article originally published in The Lawyer on October 14, 2010

Despite global economic conditions, deal-making by large pharmaceutical companies has remained relatively buoyant, say Daniel Pavin, Grant Castle and Alexandra Pygall.

Acquisitions in the pharmaceuticals sector are being driven by factors such as the need to replenish shrinking product pipelines, the need to maintain revenues…

Article originally published in the Cross-border Life Sciences Handbook 2006/07

Pharmaceutical and biotech companies are turning with increasing frequency to in-licensing and collaboration agreements – pharmaceutical companies to put new products in their pipelines and biotech companies to access the resources needed for final-stage development, clinical trials, manufacturing, and distribution. One result of the increasing…