How do we interpret a formal commercial agreement if it is ambiguous and we have reason to believe that its draftsman did not have a deep understanding of the relevant law? I think that is what this case is about.

The secret of drafting legal documents was best described by Nicolas Boileau, who was not only a literary critic but a qualified lawyer: “Ce que l’on conçoit bien s’énonce clairement et les mots pour le dire arrivent aisément”. What one conceives well can be stated with clarity and the words to say it come easily. We should all have that framed and displayed on our desks. But too often the opposite precept is followed. Bits of legal boilerplate are bolted together so that it is the words that are allowed to shape the concept instead of the other way round. In that regard the invention of the word processor has worked wonders. Sometimes, I fear, it has dispensed with the ‘concept’ altogether. Misfortune not infrequently follows.

Those who draft intellectual property licences may learn something from the misfortune that has befallen the parties to this case. They have entered into a licence agreement that contains a crucial phrase which is exceedingly hard to interpret. I have changed my mind several times about its meaning – it is a veritable Necker cube of licence agreements. The result is business uncertainty and costly litigation.

It has the merit of being short. It has no other. Jonathan Parker J considerably understated the position, when he said ‘regrettably, the drafting of s 213 leaves much to be desired’ … It is not just a question of drafting (though words and phrases such as ‘commonplace’, ‘dependent’, ‘aspect of shape or configuration of part of an article’ and ‘design field in question’ are full of uncertainty in themselves and pose near impossible factual questions). The problem is deeper: neither the language used nor the context of the legislation give any clear idea what was intended. Time and time again one struggles but fails to ascertain a precise meaning, a meaning which men of business can reasonably use to guide their conduct. The amount of textbook writing and conjecture as to the meaning is a testament to its obscurity. … The absence of any clear policy, as to where the line of compromise was intended to run, means that brightline rules cannot be deduced.

‘This is an appeal concerning Polos, the mint with the hole in the middle. This is an appeal with a hole in the middle. It is dismissed.’