Templates are a staple of licensing. They range from past agreements to form book illustrations to model agreements to standardized agreements for specific transactions. One starts with templates to build agreements for specific situations by versioning for local circumstances. There is a push back from this versioning by the folks on either end of the deal that have to manage it relative to their other obligations.
What we want to look at is how templates come to be used as standing offers, and what that means for negotiation, efficiency, consistency, and effectiveness. This will take some effort.
A simple question is: why does each license deal need to be different when there’s so little gained by that and so much added work to keep track of each of those little details?
Is the devil in the details, or are the details simply devils?
One way to get at this is to try to standardize complicated agreements so that whatever the details, they stay put. In this approach, one pushes negotiation toward getting the other party to accept one’s terms. Take our deal. It’s an argument on the merits, in the form of a negotiation. The give and take is the giving of reasons and taking of time rather than giving ground and taking other offered ground in its place. Sponsored projects offices have used this approach for years, sending out a template agreement and then working to explain why apart from funding dates, amounts, the investigator, and statement of work, the rest of the arrangement should stay as close to the template as possible.
Another way to get at this is to reduce the number of details one has to pay attention to and which become subject to variation. This approach is harder for administrators to deal with. Once a detail becomes known, it is difficult to pretend it isn’t there. Thus, administrative documents tend toward more detail, more complexity, rather than less. A handshake deal is almost by definition an abuse of authority, an ethics violation, and totally unacceptable.
A third approach is to improve the sophistication of managing agreements. In this approach, the important template is the license management template, not the license itself. In an information age, complexity is not a particular issue, so long as there is an ontology for the information. If things can make it into a spreadsheet, it doesn’t much matter if royalties are reported monthly, quarterly, semi-annually, or annually. It’s just a number 12, 4, 2, 1 tied to a reporting requirement. In this approach, so long as areas of variation are identified, the management template takes care of the details. What one aims for in negotiation therefore is not to defend a position but rather to get at objectives. Rather than getting an indemnification clause in exactly one way–which may not actually be so good a thing–one aims to manage the overall exposure to liability created by the licensing relationship.
One might see from these three approach rather different areas to invest one’s resources in, and what that does for negotiation. In the standardized agreement approach, the resource goes into administrative directives and training to get people to keep deals in the straight and narrow. In the simplification approach, the effort goes into establishing a minimum set of requirements and expecting that issues not addressed will be dealt with if and when they arise within the good faith expectations of an existing relationship. In the sophistication of management approach, the effort is to understand where variation in licensing is expectable and rig for it, so that it doesn’t present a problem.
Of these three approaches, the standardized agreement offers the greatest attractions to management. A stable agreement text limits the need for review, minimizes the administrative overhead, and does not rely on judgment or good faith as elements of relationship. The deal is on paper in a workable way, and that should be good enough for most everyone. If someone wants it another way, they can negotiate at their peril–meaning, they can ask but may not receive.
The standardized agreement challenges the idea that there is a need for negotiation. If the other party sees the reasoning behind the agreement, they will acquiesce in its wisdom. Whatever the urges to do things differently, they are outweighed by the likelihood that no one is willing to make changes to the standard language. In short, a template that cannot be disturbed, a standard agreement too fragile to be changed, a template in a teacup.
A standard agreement is a template made into a standing offer. The added kicker is that the offer is take-it-or-leave-it. Negotiation isn’t part of the relationship. One might ask, is that the kind of relationship one is driving for in a technology transfer arrangement? Is the deal faceless, generic, pre-determined? Or is it random, anything goes? Or something else? Just what is it, socially, that a university licensing administrator thinks is going on? And what do they project to innovation partners?