Reflections-14-18 February

THE USE OF TECHNOLOGY FOR THE PRACTICE AND BUSINESS OF LAW

Date: 15th February 2022               

Duration: 5hours   

The conference theme The Use of Technology fir the Practice Business of Law aimed at creating an awareness and driving the adoption of technology to be leveraged on in order to increase productivity, efficiency and profitability in the legal profession in Nigeria.

The world has come to realize how much of an importance is technology in all aspects of life. Particularly, the legal Industry. Technology in the legal industry should not be seen as an option. One can almost equate technology with oxygen and without oxygen everyone knows what can happen to a person. When talking about legal tech as an enabler of the legal practice or tech law as a subject matter area, technology is as important as the air we breathe in.

Technology in the legal industry is not the future, rather it is the present. Hence, the need to incorporate its usage in legal practice. There’s no doubt that technology will change the legal landscape, having created a significant impact.

While speaking, the Chairman of Nigerian Bar Association, Mr Olumide Akpata discussed Technology as an aid to Lawyers intellectual work process and as an enabler of Lawyers physical work products. He also discussed how the use of technology is seminal. In this regard, the use of websites by law firms whereby they invest in breathtakingly user-friendly websites that can showcase their capabilities without breaking the rules of professional conduct. In another instance, for some international clients who are not familiar with the Nigerian legal practice, this is usually a good place to start when trying to choose an external counsel.

Another way in which technology has been seminal is in terms of professional networking sites such as LinkedIn which continues to serve as a means for making cross-border professional connections as an avenue to creating new opportunities.

The Chairman went further to discuss technology as Lawyers organizational aid. As it is widely known that Lawyers and diaries are historically inseparable, the importance and usage of diaries by Lawyers in their day-to-day activities cannot be over emphasized. Diaries are consulted to ensure existing appointments and potential conflicts are avoided. Now with the help of technology, Lawyers can leverage it through digital tools to record, remind them of appointments before it’s due. Appointments could be recorded on reliable virtual platforms without the Lawyer having to step out of his/her office.

Incorporating technology into legal practice can radically change and even alter intellectual aspects. Artificial intelligence is on the rise and this will pose a significant change in the outcome of judgment delivery in the court system positively. Artificial Intelligence can be used in the courtroom for court recording, transcription of oral interview from oral or audio to written format which will expedite and significantly ensure fast delivery of judgements in Courts and also prevent backlog of case hearing.

Speaking in one of the session, Ms. Khadijat Titilayo Shitta Bey, the Solicitor General and Permanent Secretary of Lagos state noted that in driving adoption of automation in the court system and ensuring it is virtually equipped, the role of the Government plays a significant one in the judiciary system in Nigeria. In discussing this, it was noted that despite the challenges bordering on finance in driving adoption of technology in legal practice, the Government is working on an ongoing process to ensure that there is a clear cut road map in yielding positive results for  the automation of court processes.

Also, an ongoing process in driving adoption of technology in legal practice in Lagos state is the digital transformation of the Courts. In its bid to ensure speedy dispensation of justice, the state government has put plans in place to ensure that courtrooms are highly digitized. The movement aims to equip the courtrooms with the latest technology to assist the Judges and Litigants during court proceedings.

Amongst the states, Lagos state had the first virtual sitting during the COVID-19 pandemic lockdown which was ruled as unconstitutional but was subsequently ruled constitutional by the Supreme Court of Nigeria. The introduction of virtual hearing of cases seems to be a welcome development that should be widely adopted by all states, nationwide.

This allows for transformation of court proceedings in the state. Equipped with screens, court recording system, transcription from oral or audio to words, this will expedite the process of getting court records. This development will enable the courts to hold conferences, virtual hearings, remote sittings, interviews, witness hearings including when witnesses are outside the country. All these processes are said to be ongoing in Lagos state.

However, the technology being capital intensive has posed a challenge in the adoption of technology in the country.

Despite Courts adoption of technology to leverage on their operations, there’s still a gap especially in respect of e-filing system, E-registry and E-payment and in the areas of virtual court hearings, technology has been sparingly used.

While speaking in the conference, Chief Judge of Ogun state, Justice Mosunmola Dipeolu noted that in partnership with Lawpavilion, they would be launching their e-registry and e-payment platforms in Ogun state as a means to drive adoption of technology in the state’s court system.

Worthy of mention is the UK Supreme Court judgment of WM Morrison Supermarkets plc v Various claimants delivered on 1st April, 2020 during the Covid-19 pandemic lockdown. The decision was a significant one centered on vicarious liability of employers and data breach. The significant aspect of the delivery of judgment is that it was delivered and achieved without human interaction during the lockdown. The court and case manager system, registry all remotely worked to achieve the delivery of the judgment.

SUMMARY

The aim of this conference was to examine the role of judiciary ministries of justice, bar and bench in the administration of justice, ease of access to justice, automation of the court system and overall integrity of our system while leveraging technology for efficiency and productivity. Also, how legal operations, law practice, and services can be optimized and automated to drive efficiency, productivity, and profitability.

Given the challenges inhibiting the adoption of technology in legal practice, it is imperative that steps are taken to remedy this situation.

All aspects of life are getting digitized hence, the need to move along in legal practice. Furthermore, investments should be made in ensuring legal technology is advanced and adopted.

ATTENDANCE

Mr Olumide Akpata, NBA President

Hon. Justice Mosunmola Dipeolu, Chief Judge Ogun state

Yemi Candide-Johnson, SAN Senior Partner Strachan Partners

Moyosore Onigbanjo, AG Commissioner for Justice, Lagos state.

O.M Atoyebi SAN, Managing Partner, Omaplex Law Firm

Israel Aye, Founder ONEWORQ

Leah Molatseli, Head of Business Development, Legal Interact

Anthony Atata, Managing Partner at Hallback Law firm

Dolapo Kukoyi, Managing Partner, Detail Solicitors

Ade joke Ogunlewe, Partner Ogunlewe and Ogunlewe

Samson Adegunle Co-founder, NextCounsel

Dr Ayodele Oni, Partner Bloomfield Law Practice

Oyinkansola Fawehinmi, Partner Technological Partners

TOPIC: DEBT IN DISTRESS: HOW CAN CAPITAL MANAGERS REACT TO EMERGING CHALLENGES

The webinar started at 1:00PM with Jennifer who was the host and she introduced the two {2} speakers which were Ugochukwu and Michelle.

Mr. Ugochukwu’s presentation overview was based on:  Overview of the Private equity landscape, Current trends in private debt, executing an effective direct lending strategy in a competitive market and Challenges faced in the private equity space.

He explained private equity as an alternative investment class composed of investors and funds which invest directly into private companies or conduct buyouts of public companies that result in a delisting of public equity.

However, capital for private equity is raised from retail and institutional investors and be used to fund new technologies, expand working capital, make acquisitions, strengthen a balance sheet or simply buyout a shareholder. Companies like fair money, kuda, jumia etc. have taken the opportunity in the market through technology. The minimum amount of capital required for accredited investors can vary depending on the firm and fund. Some funds have $250,000 minimum entry requirement, while others can require millions more.

Private- equity {PE} firms perform two critical functions, which are:

• Deal origination/transaction execution
• Portfolio oversight

No one is willing to be a guarantor and risk a lot of money for an individual. In Africa, Nigeria has the largest private equity market. Trends in Nigeria is still growing.

There are stages of Equity Funding:

{1.} Pre-seed and seed funding: this refers to the initial capital a company brings in that comes from friends, family members, credit cards. With seed funding, you hope to grow your business and at least gain proof of concept could ranges from $100,000 to $500,00.

{2.} Post seed investment (series A & B): Series A is the term used to describe the first round of institutional funding for a venture, product development and marketing to employee salaries. Series B is the round that follows series A. in this round you can generally raise $5million to $10million, but can sometimes be raised to $20million in capital or more.

{3.} Later stage investment (series C, D, etc.): some ventures backed companies have raised over 10 rounds of financing are further rounds of venture capital funding.

{4.} Mezzanine Funding: Mezzanine capital, often provided by private equity firms is capital provided either as equity, debt, or a convertible note that is provided to a company just prior to its initial public offering. Mezzanine investors generally take less risk, since the company is generally solid and poised to “cash out” relatively quickly.

In executing an effective direct lending strategy, one of the key advantages for direct lenders is owning to their size, they can typically be more bespoke in their product. they can be nimbler and work more closely with management where a traditional bank does not necessarily have the bandwidth to do this. Also having the right risk profile on a complementary investment business case.

There aren’t a one size fits all strategy but there could be executions done by specialization. There are now both specialty funds and there are special situations funds – those are the lending strategies that typically benefit from the opportunities. So, with the shifts that are likely to take place in the corporate space in the next 12months, the challenge is exactly how capital markets practitioners execute an effective direct lending strategy in what will be a highly competitive market.

Some of the challenges facing Private Equity Landscape:

• Private Equity landscape are challenged with risk of currency devaluation that limits return to investments in investee companies as investments and returns are issued in USD.
• Investors fear political instability in Africa which leads to economic volatility affecting investments and exit windows.
• There is lack of efficient regulation and corruption by foreign investors.
• Less attractive risk/return profile due to lack of sophisticated infrastructure to

power the real sector.

The second speaker was Michelle who spoke about how policy interest rate determines the interest rate. Authorization will be looked into before the private company can invest. Although, creditors may prefer on front payment which is important to conduct due diligence with the company’s financial level, reasons they are insolvent or in debt, basis for winding up etc.

During COVID, there was CBN ‘s intervention, it enables and empowers companies to stand and generate more revenue. The scheme of arrangement under CAMA 2020 allows companies to recover their debt.

Private equity investors/ edge-funds investors view starts up investors as a red flag and risky to invest in them. It also depends on the kind of business the startup are willing to invest which must have been tested in the market, the level of the competitive land scape, the early-stage evidence, scalability in the market scope etc. if all these can be proved, the investors might be willing. The other way to get funds is from family and friends who are interested in the business.

The best way is to have your pitch ready and targeted consumers; Andela is an example. Build your personality, market strategy, track records and quality of your pitch.

Question was raised on how the investors can engage through financing the starts up businesses. The market scope and the consumers are the main target of the starts up. People are putting their money in Agro businesses to yield interest immediately. Before inventing on a business, the early-stage turnout in the market is a key note to the investors who would be willing to invest in the business.

In conclusion, as a lawyer, you must position yourself in the capital management. Either as a startup/lawyer/capital manager, you can start something strategically. Though most Nigerian are looking at what will yield profits immediately and not willing to wait for a long-term contract.

PATENT LICENSING AND FRAND

BY: ESQ TRAININGS LIMITED

HELD ON THURSDAY FEBRUARY 2022

The webinar anchored by Akintunde Idowu of ESQ Solicitors. The speakers were Prof. Mark Engelman and Mr. Olatunde Ojeladun. Prof. Engelman took the first session and he approached the topic from a case law perspective. He divided the topic into the following sub topics:

1. The History of Patent License Abuse-US Supreme Court Cases

2. Competition-EU Directive and Case Law

3. FRAND EU-Case Law

4. FRAND-UK Case Law

5. The Acceptable FRAND License Terms

6. Conclusion

THE HISTORY OF PATENT LICENSE ABUSE-US SUPREME COURT CASES

1. In the case of Adams v Burke, the US Supreme Court in 1873 held that upon the first authorized sale of a patent product by the patentee, the patentee’s rights became exhausted.

2. In Henry v. A.B Dick Co, the US Supreme Court in upheld the validity of licensing the use of tied or other related products along with the originally patented product, known as the Inherency Doctrine, the inherent right of a patent owner, in lieu of having exclusive rights over his products, to exercise the right to license the product on any terms and conditions he chooses.

3. In Henry v. A.B. Dick Co. 1917, the US Supreme Court overruled the A.B Dick in Motion Picture Patents Co v. Universal Film Mfg. Co. It condemned the licensing of materials which formed no part of the patented invention and were merely necessary for its operation.

4. In Brulotte v. Thys Co. (1964), the US Supreme Court held that a patent holder’s attempt to collect royalties beyond the term of the patent constitutes misuse of the patent.

EU DIRECTIVE COMPETITION BLOCK EXEMPTION

EU-Technology Transfer Block Exemption Regulation (TTBER),

Article 102 Treaty on the Functioning of the European Union

“Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trace between Member States.”

Some of the points he made on this point are:

1. The combined share market of competitors must not exceed 20% on the affected relevant technology.
2. Individual market shares of non-competitors must not exceed 30% on the affected relevant technology.

Non-competitors

1. Resale price maintenance.
2. Restrictions on passive sales on the part of the licensee.

• Restrictions on sales to and users by a licensee within a selective distribution system which operates at the retail level.

• Restriction on passive sales by the licensee into an exclusive territory or to an exclusive customer group allocated to another licensee during the first two years to protect the other licensee.

FRAND EU CASE LAW

FRAND means Fair, Reasonable and Non-Discriminatory. The speaker examined some of the applications of FRAND in patents through case law which included:

1. In the Motorola case (AT.39985), Apple had offered to take the license of relevant SEPs for Germany. Motorola had argued that the offer was not FRAND because it was not worldwide. The European Commission acknowledged that there was no “one-size-fits-all” solution to identifying FRAND as it varies from sector to sector and over time. The EC held that Motorola had infringed Article 102 of the TFEU by seeking and enforcing an injunction against Apple in a German Federal Court for Apple’s infringement of one of its German SEPs.
2. In Huawei Technologies Co. v. ZTE Corp., C 182-21, Huawei and ZTE engaged in discussions on the infringement of Huawei’s patent and negotiated a patent license. ZTE proposed but did not pay a license due to Huawei. Huawei sought infringement injunction which was referred to the CJEU. ZTE sought opposition to grant of Huawei’s patent. The Court was called upon to determine the question whether the SEP-Holder infringes Article 102 of TFEU by abusing its dominant position in relation to the infringer? The Court held that the enforcement of SEPs within the context of SEPs require that the defendant has shown itself to be objectively willing and able to conclude a licensing agreement. Also, the IPR owner must offer the defendant written terms, including the royalty and the way it is calculated. Finally, the defendant must act in a diligent and serious manner and not purely tactical and/or dilatory and/or not serious.

FRAND UK CASE LAW

The speaker also examined FRAND through the following case among others:

TQ Delta LLC v. ZyXEL Communications UK ltd (2018) EWHC 2577 (Pat)

In that case, the patentee was ordered to provide disclosure of licenses granted by its predecessor, documents concerning the patents essentiality and validity, and documents concerning the calculation of reasonable and non-discriminatory offers on royalty rates. The disclosure sought was refused on the grounds of probative value, they were disproportionate and they were subject to legal privilege.

THE ACCEPTABLE FRAND LICENSE TERMS

The speaker then went on to give the key clauses of a patent license as held in the UK case of Unwired Planet International Ltd v. Huawei Technologies (UK) Co Ltd HC (2017) EWHC 1304 (Pat)

• License patents scheduled
• Average selling Price is the lowest price upon which royalty can be charged.
• Territory – Worldwide
• License – non-exclusive
• Right to grant sub-licenses
• Royalties on end user should be between 0.005-0.06
• Royalties on Infra structure equipment should be between 0.05-0.06
• Auditing
• Term 2013-2020
• Law applicable is England and Wales.

The second speaker, Mr. Ojeladun approached the topic from the aspect of definition of terms. He started by defining a patent as the territorial right granted by the State to a right holder to exclude others from commercially exploiting the invention for a limited period, in return for the disclosure of the invention, so that others may also gain benefit from it. The owner of the patent is the licensor while the receiver of the license is he licensee. Licensing involves payment for the license, which may be either a one-time payment or recurring payments known as royalty.

FRAND

FRAND is an acronym for FAIR, REASONABLE AND NON-DISCRIMINATORY.

FRAND terms are implemented to ensure that intellectual property right owners provide licenses to organizations requiring use of a Standard Essential Patent (SEP). A SEP is a patent claiming technology that is essential to an industry’s standard use.

NATURE OF FRAND IN THE US

At present, the US Court of Appeal for the Ninth Circuit has held that a SEP holder’s FRAND commitment to a Standard Setting Organization (SSO) creates a legally binding contract that the standard implementers can seek to enforce as third-party beneficiaries. See the case of Microsoft v. Motorola 696 F.3d 872 (9th Cir. 2015).

In most cases, resolution of a FRAND dispute between a SEP holder and a standard implementer involves the Court ordering the parties to enter into a license on terms judged to be Fair, Reasonable and Non-Discriminatory. There is no formal definition of what constitutes FRAND terms but at least one Court has stated that a licensee must be offered a license on the same terms as similarly situated prior licensees.

After the conclusion of Mr. Ojeladun’s session, the anchor took some questions which were answered by the speakers. An attendee asked what problems are associated with SEPs and their licensing. Mr. Engelman answered that one of the problems is pricing and fairness which can be arbitrary due to monopoly. This, however, is what FRAND seeks to solve. Mr. Olatunde commenting on the same question said that a company may not want to disclose their invention so that they can have a monopoly on that invention, since patents essentially deals with disclosure.

Another attendee asked what steps can be taken to protect an invention where one does not have a patent? The speakers answered that where a patent is not registered for the invention, such infringement cannot be remedied by the instrumentality of patents. Also, that is someone else registers a patent before him for that invention, that person has acquired the right to enforce the patent and protect it from infringements. However, the invention can still be protected even where another person registers a patent claiming that invention if the original owner of the invention can prove ownership of the invention by showing, for example, usage of the invention before even the patent was registered by the other person. The invention can also be protected through other intellectual property areas like copyright, branding. Once you can identify what particular aspect of your intellectual property has been infringed, you can protect against such infringement even without a patent.

A third attendee asked for the full meaning of TFEU? Mr. Engelman answered that it means Treaty on the Function of the European Union.

The webinar came to an end by about 1:56pm.

REPORT ON – SPOTLIGHT ON ANIMAL LAW

CHAIR-PERSON: TIFFANY

Guest Speakers:

Hannah

Paula Sparks

Kerri

INTRODUCTION

The webinar started at 19:04pm (GMT) with the welcoming of guests by the Chairperson. In her welcome address, she gave a brief introduction of herself and the topic in issue. Explaining its necessity in the UK and Scottish Law. She also thanked her guest speakers and participants for creating out time irrespective of their busy schedules in making the meeting a reality. No disputing their interest in Animal Law, she assured them of a great session. She then thanked the guest speakers for their outstanding contribution to animal welfare in the UK. In a bid to reserve further comments and explanations for the speakers, she quickly handed over to the first speaker Hannah. Hannah who as a Scottish lecturer on Private Law gave a foundation in connection to her upbringing. Although she admonished lawyers out there that even as a private lawyer one can still be interested in Animal Law. This interest in context is not disconnected to the fact that she loved animals from childhood.

MAIN SESSION

WHAT IS ANIMAL LAW

The main session began with Hannah; she also gave an introduction to the topic taking into cognizance the Scottish Animal Lawyers Association. In her words “there is no strict definition to Animal Law in the UK however, there are definition of different animal species in relevant legislative governing the welfare or protection of animals. In relationship of the aforementioned, she safely defined Animal Law as the combination of legislation and case law that relates to or has an impact on non-human; it encompasses companion animals, wildlife, animals used in entertainment, research, etc. Hannah further established the relationship of Animal Law to other branches of law to include:

• Environment Law
• Constitutional Law
• International Law
• Human Rights Law
• Family Law
• Criminal Law, few to mention.

She acknowledged the fact that Animal Rights are important as animals are a big part of our culture, and infringement of their right can bring consequences and hold offender to account. She noted their rights in one word “sentience“. Referencing the University of Bristol, John Webster and Professor Emeritus, Hannah defined Sentient Animal as one whom feelings matters. Hannah continued further explaining the establishment of sentience to law. In her view when the UK was a member of the European Union, Article 13 of the Treaty on the functioning of the EU recognized Animal sentience and imposed a duty on members’ state to pay regard to their welfare requirements in formulating and implementing policy. It was when the Brexit transition period ended on 1^st January 2021; the recognition of animal sentience fell out of the UK law. For its revolution, the UK Government then introduced the Animal Welfare (Sentience) Bill to the House of Lords on 13^th May, 2021 to remedy the Brexit transition. The Bill recognizes the sentience at animals and establishes a new committee to scrutinize Government policies which have an adverse impact on welfare of animals. It covers England and Wales, Scotland and Northern Ireland. The Bill is currently at Committee Stage in the House of Commons.

THE UK CENTRE FOR ANIMAL LAW’S INVOLVEMENT AND ITS POSITION IN SCOTLAND

Hannah while concluding stated that the Scottish Government set up the Scottish Animal Welfare Commission through regulation in 2022. Its remit includes considering how the welfare needs of sentient animals are being met by devolved policy; and possible legislative and non-legislative route to further protect the welfare of sentient animals. The Act responsible for the regulatory body is Animal Health & Welfare (Scotland) Act 2006.

In other to fuse the functions/missions, visions and works, Hannah handed over to the second speaker (Paula Sparks).

PAULA SPARKS’S TAKE ON THE SCOTTISH ANIMAL WELFARE COMMISSION

Thanking the first speaker, Paula explained how important it is for everyone to be involved in Animal Law irrespective of whatever jurisdiction one is practicing. She re-emphasized that it doesn’t necessary have to be lawyers involved as non-lawyers can also be directly involved as well. She quoted the vision of the Commission as “a world where animal interests are fully protected by law”.

The missions of the other hand are;

• promote knowledge and education about the law relating to Animal Law
• achieve a better legal framework for animals
• see existing laws being applied properly

The work of the commission includes;

• Help animal advocacy group access legal assistance to bring cases which raise imputed points of principle.
• Develop resources to increase knowledge about criminal law.
• Provide legal expert input on public policy issues.
• Provides forum for discussion about animal law, ethics and policy.

QUESTIONS & ANSWERS

Paula handed to the chairperson who thanked her immensely for her contribution to the topic. She (Tiffany) then opened the floor for questions. Giving the first question on the issues of funding in relationship to animal welfare. Answering the questions Hannah explained that it can be difficult but not impossible. An observation from numerous questions arising from the issue of funding, Hannah gave a personal experience on the fact that she wasn’t really focused on Animal Law at a point but in one way and the other used her skills, resources to make a difference. Paula Sparks then added few words in support of Hannah’s contribution ending her speech in the narrative “make a difference for animals”.

In light of the above question, Tiffany further requested for an advice for young lawyer who wishes to pursue Animal Law in various institutions. Hannah stepped up again saying the enthusiasm should stay, it develops day in day out. It does not fail. She further re-assures them to go for it as it promises to be educative, efficiently and connectivity relating to Animals which we are no exception. Humans are only larger animals.

In contribution, Danielle Gallo, a participant at the meeting through the comment section portrayed his grievances stating that animals do suffer from slaughter; he would love to see it stop. Richie who is also a participant asked if there were any legal protection put in place to checkmate/avoid animals being killed on the road. Answering his question, Hannah stated that:

“Statistics show that over 15,000 animals are killed on the road on a yearly basis”.

She further stated that there should be some principles in place to stop animals being killed on the road, and concluded it is a work in progress.

CONCLUSION

In conclusion Tiffany handed over to Kerri who in few sentences had little to say as the topic cannot be complete exhausted. She again thanked all panels at the meeting and Tiffany for a beautiful set up. The meeting ended at about 19:58pm (GMT).