Do your (commercially reasonable) best

I was happy to see, in Mark Anderson's recent post on the IP Draughts blog, a clear-eyed defense of the use of the word "hereby."

The post is titled "10 words and phrases you should use in IP contracts" and "hereby" is at the top of the list.

"It may be important to be clear on whether the agreement is granting a licence or assigning IP now, rather than merely promising to do so in the future.  For example, using the words hereby assigns rather than shall assign or agrees to assign places beyond doubt that the assignment is occurring now, under the present instrument, rather than in the future."

Just so.

Eight of the other nine words or phrases making Anderson's list are used in the US, too, but one phrase, and its variants, may have a decidely different common law pedigree in the US than in the mother country. That's the phrase, "diligent efforts," which Anderson says he likes to capitalize and make a defined term.

I use "reasonable commercial efforts" as a default, usually avoiding "best efforts" unless my client really appreciates that the phrase imposes a different standard, legally, than one might expect, using it colloquially.

Photo: Clint McMahon / Flickr.