Mewburn Ellis LLP and its UK patent and trade mark attorneys and solicitors are regulated by the Intellectual Property Regulation Board (IPReg) and bound by the Rules of Conduct for Patent Attorneys, Trade Mark Attorneys and other Regulated Persons (including its solicitors) (Code of Conduct). Mewburn Ellis LLP and its German patent attorneys are regulated by the professional rules set forth in the Patentanwaltsordnung (German Patent Attorney Code), the Berufsordnung der Patentanwälte (Code of Conduct for German Patent Attorneys) and the FICPI (Fédération Internationale des Conseils en Propriété Industrielle) Code of Professional Conduct.
Mewburn Ellis LLP and its German attorneys at law (Rechtsanwälte) are bound by the Bundesrechtsanwaltsordnung (Rules & Regulations for the German Bar), Berufsordnung für Rechtsanwälte (Vocational Rules for Lawyers), Fachanwaltsordnung (Rules & Regulations for Specialized Attorneys), Rechtsanwaltsvergütungsgesetz (German Attorneys' Remuneration Law), Berufsregeln der Rechtsanwälte der Europäischen Gemeinschaft (Vocational Rules for Lawyers in the European Community), and the Gesetz über die Tätigkeit europäischer Rechtsanwälte in Deutschland (Law regulating the activity of European lawyers in Germany).
Mewburn Ellis LLP also provides contentious and non-contentious legal services in relation to intellectual property matters through solicitors qualified in England & Wales who are regulated by IPReg. Our contentious offering includes conduct of litigation in the High Court, where our solicitors and patent agent litigators have rights of representation. Although we as a firm are not regulated by the Solicitors Regulation Authority (SRA), any solicitors working for us are regulated individually by the SRA, and as such are subject to chapters 10, 12, 13, 14 and 15 of the SRA Code of Conduct 2011 and will be subject to the SRA Standards and Regulations (in place of the SRA Code of Conduct) from 25 November 2019 (or such other date as they may come into force) when undertaking work for you.
The European Patent Attorneys in this firm are also bound by the code of conduct of the Institute of Professional Representatives before the European Patent Office. In particular this requires us to avoid conflicts of interest and to keep confidential any information which you provide to us unless it becomes public.
Mewburn Ellis LLP will work for you with reasonable skill and care, and we acknowledge that if we negligently fail, we will be liable to you for loss caused.
Limited liability partnership
Mewburn Ellis LLP is an English Limited Liability Partnership. An LLP is owned by its members, to whom we refer by the traditional name of "partners", but the members are not engaged in a partnership under the Partnership Act 1890. A list of members of Mewburn Ellis LLP can be found at www.mewburn.com/our-people or at our registered office.
Mewburn Ellis LLP alone will provide services to you (subject to the instruction of any Contractors (as defined below)), and accordingly, will be liable to you for any wrongful acts or omissions of any Mewburn Ellis Individual. Accordingly:
- we shall only be liable to bear a fair share of your Losses having regard to the extent to which we, you and any other person, who is jointly and/or severally liable to you for any part of the same Losses, is in each case responsible;
- any services performed by any Mewburn Ellis Individual are performed on behalf of Mewburn Ellis LLP and that person does not assume any personal responsibility to you or any other party for those services;
- any claim of any kind you may have arising out of your engagement with us shall be brought only against Mewburn Ellis LLP; and
- you will not bring any claim against any Mewburn Ellis Individual, directly or indirectly, in connection with our services.
In the event of any claim arising, the aggregate liability of the Mewburn Ellis Group in any circumstances whatsoever, whether in contract, tort, under statute or otherwise, and howsoever caused (including our negligence or non-performance) for Losses suffered by you due to our negligence arising from or in connection with:
- Non-Renewal Services, shall be limited to the lesser of (i) your direct loss and (ii) £10 million (Liability Cap); and
- Renewal Services, shall be limited to the lesser of (i) your direct loss and (ii) £1 million (Renewal Liability Cap).
Where we act for joint clients and/or in circumstances where our advice to you has been made available to a third party in accordance with the 'Our client' paragraph below (a Reliant Third Party), the aggregate liability as detailed in this paragraph shall apply to the aggregate Losses of you and each such other joint client and/or Reliant Third Party.
Save in the circumstances set out in the "Contractors" section below, if you instruct other service providers (for example, overseas attorneys, counsel, searchers, draughtsman or sequence listing providers) (either directly or through us) on any instruction we will not be responsible to you for the services, advice or information provided by, or for the fees and expenses of, those other advisers. If we become liable to you for Losses in relation to any services we provide and any other persons are also responsible for Losses you suffer, subject always to the other exclusions or limitations in this 'Liability' paragraph, you agree that:
- we shall only be liable to bear a fair share of your Losses having regard to the extent to which we, you and any other person, who is jointly and/or severally liable to you for any part of the same Losses, is in each case responsible;
- the extent to which Losses are attributable to other persons (whether or not the liability of such persons is limited or excluded by Law or agreement and whether or not such amounts can be collected) shall not be Losses for which we are liable; and
- any liability we have to you for Losses shall be subject to any limitations or exclusions agreed between us and you but shall not be subject to limitations or exclusions agreed between you or any other person.
When searching for patents, trade marks or designs (whether pending or granted), although we provide basic search services in-house, we will often use third party professional service providers who specialise in searching intellectual property rights. We endeavour to select a reputable provider in such circumstances, however we are not liable for the work product provided by that third party, or for the accuracy, extent, appropriateness or completeness of the search or work product provided by the third party.
We shall not be liable for any indirect, special or consequential loss arising in any circumstances whatsoever, whether in contract, tort, under statute or otherwise and however caused (including from our negligence and/or non-performance). We shall not be liable for any direct or indirect loss of profit, arising in any circumstances whatsoever, whether in contract or tort, under statute or otherwise, and howsoever caused (including from our negligence or non-performance).
Where you instruct us to send any warning concerning an intellectual property right on your behalf to a third party, you agree to indemnify us against any costs or other liability arising from our being sued for making an unjustified threat of infringement proceedings.
Nothing in this agreement exempts us from liability arising from our fraud; or from our negligence resulting in death or personal injury; or in any circumstance where Law prohibits the exclusion of such liability.
Our Legal Notices can be found on our website at www.mewburn.com. If you would like a hard copy, please let us know.
Please refer to the Legal Notices for information that we are required to give you under relevant Law and in order to comply with our professional regulations.
We reserve the right to contract out certain elements of our services to external attorneys, technical assistants or other professional advisers at our discretion where the work product is represented as a product of ours ("Contractors"). Where we contract out our services to Contractors:
- there shall be no contractual relationship between you and the Contractor;
- any work performed by a Contractor will be branded as a Mewburn Ellis LLP product;
- we do not have an obligation to notify you of the use of any Contractor(s); and
- we will be responsible for any advice and/or work products created by such Contractors.
Where we instruct external attorneys (e.g. in foreign jurisdictions), technical assistants or other professional advisers on your behalf (their work product not being represented as a product of ours), such external services shall not form part of our services and, unless we ask you to contract directly with such adviser, we shall instruct the adviser as agent on your behalf and will:
- not be liable for any of your Losses as a result of the default or negligence of the adviser; and
- not be liable for the fees and expenses of the adviser.
Unless some other arrangement is agreed in advance, the body or person who gives us instructions will be regarded as our client and as such will be responsible for paying us. If another body or person is to be responsible for paying us, our client will remain liable to pay our fees if that other body or person fails to do so.
No other person may use or rely upon all or any part of our advice or materials nor derive any rights or benefits from the services unless:
- we have, at our sole discretion, given our prior, express consent in writing to such use or reliance; and
Where we have agreed that a third party may benefit from our services, for example in the case of joint patent applicants, we may require confirmation from each of the parties that we are to take instructions from one party on behalf of all the parties. Unless agreed otherwise, that one party will be the only party from whom we will take instructions, and we will look to that party in the first instance for payment (but for the avoidance of doubt all parties shall be jointly and severally liable for our fees).
Where our client is a corporate entity, unless we are instructed to accept instructions from specified persons only, we may accept instructions from any person who appears to have the authority to give us instructions on behalf of the corporate entity.
You agree that throughout the provision of our services, you will:
- promptly provide us with all instructions and information necessary for us to perform the services;
- promptly notify us of any changes to information previously provided;
- ensure that all information provided to us is complete in all material respects and not misleading;
- ensure that the provision of information is not in breach of any Law or contractual obligation; and
- ensure that you are available to sign documents when required.
We will not be responsible for any loss of rights if you do not provide clear and complete instructions early enough for us to act within official time limits. We normally advise you of time limits and of actions or instructions that are required from you but we do not undertake to give reminders.
Please confirm all of your oral instructions in writing. We do not accept liability for any misunderstanding or misinterpretation of oral instructions.
You agree that any decision as to whether a risk is acceptable to you is a matter solely for you.
In rare cases, our e-mail filtering software may eliminate legitimate email from clients unnoticed. Therefore, if your email contains important instructions, please make sure that we acknowledge receipt of those instructions.
Please notify us promptly of any change of personnel or name or address or of any change in ownership of rights. Official registration of such changes is often desirable. We will address correspondence to the last address notified to us and this will fulfil any duty that we may have to communicate with you.
We will endeavour at all times to comply with the IPReg Code of Conduct in respect of potential conflicts of interest. We will inform you promptly if we become aware of a conflict.
When taking on a new client we perform a check to identify potential conflicts of interest that may prevent us from acting for the client.
We do not normally consider a conflict to arise because two clients operate in the same general field of business or technology, although we recognise that this may be a relevant factor in assessing a potential conflict and our disclosure and confidentiality obligations. When checking for conflict we will normally focus on the subject matter of the cases concerned.
For an existing client we may, at our discretion, also perform a conflict check when taking on a new case. If, when sending a new case, you wish us to confirm that we do not have a conflict for the subject matter of the case please clearly indicate this in writing.
From time to time a conflict may arise during the course of engagement with a client, e.g. owing to a change in circumstances of the client or new interest in a field of technology. We reserve the right to decline to act further, at least in relation to the area of conflict, for one of the clients concerned, usually the client having the shorter period of engagement with us.
Our advice and the materials we provide as part of our services are confidential, and you may not, without our prior, express consent in writing, disclose them to any person (other than to your employees, agents and professional advisors who require access and who undertake to not disclose them further) or otherwise make them public, except as required by Law.
The nature of the matters we are instructed on by our clients means that we regularly receive highly confidential information in respect of their actual and prospective intellectual property rights (including information related to their proprietary technology and inventions). We understand the need to maintain strict confidentiality in respect of such information so that our clients' intellectual property can be protected appropriately and we will only disclose such confidential information in the circumstances set out below.
We will hold in strict confidence (including after the termination or expiration of our representation), applying reasonable technical and organisational security measures, any confidential information obtained or developed regarding you and your business and we will not disclose it to others without your prior written permission except as necessary for the provision of our services or as required by Law. If we are required compulsorily to disclose your confidential information pursuant to any order of a competent court or other public body having jurisdiction over you, we will ask the court or the public body to treat the information as confidential and, unless legally prohibited to do so, we will inform you before making any disclosure in order to enable you to object, claim privilege and/or make representations in respect of the disclosure.
You agree that we are the Processor and you are the Controller in our provision of the services to you. As Processor, we agree to:
- process any Personal Data only on documented instructions from you, including with regard to transfers of Personal Data to a third country or an international organisation, unless required to do so by the Laws to which we are subject; in such a case, we shall inform you of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest. Please note that in our provision of the services, we may be required to disclose Personal Data belonging to you in order to comply with Relevant Laws;
- ensure that our employees, agents and sub-processors authorised to process your Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
- implement all organisational and technical measures required to comply with Data Protection Laws in our provision of the services;
- comply with Data Protection Laws when engaging another processor;
- taking into account the nature of any Processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising a data subject's rights, subject to our reasonable costs being covered;
- assist you in ensuring compliance with the obligations, taking into account the nature of Processing and the information available to us, subject to our reasonable costs being covered;
- at your choice delete or return all the Personal Data we process for you after the end of the services we provide you, and delete existing copies unless Data Protection Laws or Laws require storage of the Personal Data;
- make available to you all information necessary to demonstrate compliance with Data Protection Laws, and allow for and contribute to audits, including inspections, conducted by you or another auditor mandated by you, all subject to our reasonable costs being covered. We shall promptly inform you if, in our opinion, an instruction infringes any Data Protection Laws.
Our files will not be kept for longer than necessary, and will be destroyed when we no longer need them in line with Data Protection Laws. We also use an electronic file system and cloud-based hosting system, and maintain an internal business continuity plan. We scan documents on receipt and the documents are then destroyed, although we may retain some types of original document for a legitimate purpose, for example assignments. Please therefore tell us straight away if you require the return of any papers or other materials supplied to us. We may exercise a lien over your papers and other materials until all payments due to us have been made.
If work is transferred to us from another firm (or vice versa) we reserve the right to make a charge for the work involved in the transfer. Our written file retention/destruction policy shall be made available on request.
At the outset of any client engagement, we will perform anti money-laundering checks required under Relevant Laws.
We will not engage in any activity, practice or conduct which would constitute an offence under any anti-bribery and anti-corruption Law, including but not limited to the Bribery Act 2010.
If you feel dissatisfied with our work, please initially raise your concern with the professional staff handling your work. If after that you think that there remains a problem, please ask that the case is referred to a Senior Partner or write to us, for the attention of the Senior Partner.
If you still have a complaint, you should contact IPReg, the Legal Ombudsman or the Patentanwaltskammer (Arbitration Board of the German Chamber of Patent Attorneys), depending on the nature of your complaint. If your complaint is in relation to the conduct of a solicitor, you may also complain to the Solicitors Regulation Authority.
The Legal Ombudsman investigates complaints about service issues with legal service providers. If you would like more information about this service, including the time limits for taking a case to them, please contact the Legal Ombudsman directly. You can find out more about their service by visiting www.legalombudsman.org.uk or contacting them on 0300 555 0333.
A copy of our written complaints policy is available on request, and this gives further details as to how to complain to IPReg, the SRA and the Patentanwaltskammer.
Please note Mewburn Ellis LLP is neither legally obligated nor willing to participate in a dispute resolution proceeding before a consumer mediation center pursuant to the Verbraucherstreitbeilegungsgesetz (VSBG), or the Schlichtungsstelle der Rechtsanwaltschaft (attorneys-at-law arbitration board).
Charges and payment
Our charges are based partly on the time taken to do a particular job and partly on standard charges for particular tasks. Generally the nature of the work is such that the time it will take often cannot be known before the work is begun, but we are happy to provide an estimate for a particular job. Should we provide a fee estimate, we will update you if the estimate is likely to be materially exceeded. Any estimate will be given in good faith based on our knowledge at the time but such an estimate is not binding as the time required and costs may be affected by matters beyond our control.
All work that we do is chargeable. This includes telephone calls, faxes, reminders and reporting to you on communications which we may receive on your behalf. In most instructions (such as patent, trade mark and design applications) after the initial filing, further charges will be incurred in reporting developments to you. Furthermore, on foreign cases, external overseas attorneys will make similar charges which we will then have to pass on to you. Should you decide not to proceed with any case, it is in your interest promptly to give us clear written instructions that the case is to be abandoned, so that we can where possible prevent further costs being incurred against your wishes.
Unless indicated otherwise, our charges and fee estimates will normally be given exclusive of VAT, which may be applicable to some or all of the cost.
In most cases we will send an invoice for our work at regular intervals, for example at the end of each month and/or upon completion of a particular job or part of a job.
We may require payment on account before undertaking work, particularly where large items such as fees and expenses are to be incurred or where a client is relatively new to us. Otherwise our invoices are to be paid directly to us in full by the end of the month following the month in which the invoice is dated. We reserve the right to charge interest at 4% over Barclays Bank plc base rate on any overdue account.
Any money belonging to our clients that we hold on their behalf will be held, in trust, in specifically designated client accounts. These accounts will not be interest bearing. If payment is not made in due time, we reserve the right to decline to undertake any further work. Your rights may be lost if this happens. Regardless of any such suspension of work, payment of our invoices is still required.
When we pay a disbursement on behalf of a client, if that disbursement is incurred in the same currency as the billing currency, the disbursement is recharged at par. When the disbursement is in a different currency, the cost passed on to the client is the disbursement cost converted into the billing currency using the exchange rate at the time of billing.
To cover our costs in paying disbursements on behalf of our clients, and to provide a level of security against exchange rate fluctuations, our service charge for paying all disbursements (except official fees) is 10% of the disbursement cost.
When making a payment by cheque please make the cheque payable to MEWBURN ELLIS LLP and send it to your usual Mewburn Ellis LLP correspondence address. Alternatively, if the cheque is drawn on a US bank, we would prefer you to send it (by post, not courier) to our Lockbox facility in Boston at the following address: Mewburn Ellis LLP, P.O. Box 845750, Boston, MA 02284-5750, USA (Please DO NOT use this address for correspondence - it is ONLY for US cheques).
These T&Cs, and any contractual or non-contractual obligations arising out of or in connection with the services we provide, shall be governed by and construed in accordance with English law.
All disputes (including non-contractual disputes) arising out of or in connection with the services we provide shall be submitted to the exclusive jurisdiction of the courts of England and Wales.
Third party rights
The provisions of the Contracts (Rights of Third Parties) Act 1999 are excluded and no person who is not a party to these T&Cs contract shall be entitled to enforce any of its terms, save that each Mewburn Ellis Individual shall have the right to rely on and enforce the provisions set out in the "Limited Liability Partnership" section and any other terms of these T&Cs drafted for the benefit of Mewburn Ellis Individuals as if they were a party to these T&Cs.
Defined Terms and Interpretation
Controller means the entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.
Data Protection Laws means all laws and regulations applicable to the Processing of Personal Data in connection with the services, including the GDPR and other laws and regulations of the European Union, the European Economic Area and their member states and the UK relating to data protection.
GDPR means the General Data Protection Regulation ((EU) 2016/679))
In writing means a communication (sent as hard copy, by fax or electronically) and, if such communication is required to be sent by us, by or on behalf of a member of Mewburn Ellis LLP.
Including and for example shall be interpreted as referring to a non-exhaustive list of examples.
Law means common law, case law, legislation (including enactments, statutes, statutory instruments, regulations, by-laws, ordinance or subordinate legislation), applicable statutory, industry or other professional rules, codes, guidance, regulations, instruments and provisions and Relevant Law means the law which applies to a particular instruction at the time our services are being provided in relation to such instruction.
Legal Notices means the additional information described as such on our website at www.mewburn.com .
Losses means all losses, liabilities, fines, damages, costs and expenses including legal fees on an attorney/client basis and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties.
Mewburn Ellis Group means Mewburn Ellis LLP and each Mewburn Ellis Individual.
Mewburn Ellis Individual means any member, employee or agent of, or any consultant or other advisor to Mewburn Ellis LLP.
Mewburn Ellis LLP means Mewburn Ellis LLP, a limited liability partnership incorporated in England and Wales with registered number OC306749 and with registered office 20th Floor City Tower, 40 Basinghall Street, London, England, EC2V5DE.
Non-Renewal Services means services provided directly to you by Mewburn Ellis LLP other than Renewal Services.
Personal Data means the meaning given in Article 4(1) of the GDPR.
Processing means any operation or set of operations which is performed in relation to any Personal Data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Processor means the entity which Processes any Personal Data on behalf of the Controller.
Renewal Services means renewal services provided directly to you by Mewburn Ellis LLP in respect of registered intellectual property rights.
we, us and our means Mewburn Ellis LLP.
you means the person or persons identified by us as having provided our instructions and to whom we are providing the services and your shall be construed accordingly.