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Exciting times for IP market makers (Market intelligence)
As most of the developed world enters difficult economic times, all those who believe that intellectual property is, or could be, an asset class will have to find an answer to the following question. If the global financial system can be brought to the brink of collapse over worries about the valuation of mortgage-backed securities, what impact does that have on prospects for the development of markets based on other kinds of intangible, such as intellectual property?
Twenty for 2012: sustainable brands for the future (Market intelligence)
Sustainability in all its forms is a prerequisite for high performance. This is especially true as companies confront one of the toughest operating environments in recent memory. This chapter identifies companies which Morgan Stanley analysts believe to be the 20 highestquality companies in their respective sectors all of them powerful brands grounded in sustainability
A new set of rules for innovation during times of economic uncertainty (Market intelligence)
The year 2008 will be remembered for many things in particular, the fact that in this year the world entered a financial crisis of unprecedented magnitude and scope. It was the year when we were struck by a global recession resulting from excess leverage in the financial markets, the unwinding of the Federal Reserve’s fiscal experiment and no-credit-necessary mortgage lending (to name but a few of the culprits). Corporate lay-offs, skyrocketing unemployment rates and declining stock prices grabbed news headlines. As we enter 2009, business executives, regardless of their industry, grapple with balance sheets in a state of flux and world leaders struggle to bring a sense of calm to their economies.
IP owners leaving big money on the table (Market intelligence)
Underreported licensing fees and misinterpreted contract terms along with insufficient compliance monitoring of licensing agreements are combining to cost IP owners millions in lost revenue.
Identifying and managing intangibles: what's in your closet? (Market intelligence)
Many organisations have a long history of successfully managing the lifecycle of both tangible and intangible intellectual assets, from creation to realisation. However, others are just getting started. This chapter outlines the intellectual asset management (IAM) process for those in the starting blocks who want to move forward.
Intellectual asset deals and decisions: are you building or destroying value? (Market intelligence)
Twenty years ago, the valuation of intellectual property and, more broadly, of intellectual assets or intangibles was looked upon as a subjective and arcane exercise, in that there was a lack of consensus on the methodologies to apply and application was limited. This has changed significantly: IP and intellectual asset valuation is now an established business tool. In today’s dynamic environment influenced by vigorous new reporting standards, IP auctions, increasing globalisation and the trend towards alliances of all types intangible assets are becoming increasingly important in boardrooms around the world.
Protecting and commercialising patentable intellectual property (Market intelligence)
According to the US Patent and Trademark Office, 97 per cent of patent holders own patents that will never make a profit and only about three per cent of all patents ever make more money than the patent cost in the first place. Assuming this is true, the overwhelming majority of inventors are left nursing their shattered dreams and depleted bank balances.
Inter-company pricing of intangibles global developments and their impact on your business (Market intelligence)
The transfer pricing of goods and services between companies and across borders is fundamental to the taxing rights of different countries. The potential for tension and conflict among countries is therefore high. To mitigate the risks this entails, the Organisation for Economic Cooperation and Development (OECD) operates a set of guidelines on the subject (the Transfer Pricing Guidelines for Tax Administrations and Multinational Enterprises), and has recently issued a series of notes regarding profit methods and comparability. Among other things, these guidelines address intangibles and their impact on the pricing of inter-company transactions. In addition, the United States one of the larger and more influential OECD member countries has also issued new rules on services transactions, including discussions on certain services that may create intangibles; as well as detailed rules in relation to qualified cost-sharing arrangements (QCSAs) that exist (for US business) separately from the OECD guidelines.
Protecting and enforcing non-traditional trademarks (Market intelligence)
Businesses work constantly to devise innovative and creative marketing strategies. The use of non-traditional trademarks by businesses may offer a new way to attract consumers to their products or services.
The future of patent exhaustion after Quanta (Market intelligence)
It has been several months since the US Supreme Court issued its unanimous opinion in Quanta Computer, Inc v LG Electronics, Inc (June 9 2008) and the implications for patent holders continue to reverberate. In Quanta, the court reiterated the principle that once a patentee has authorised the sale of goods or services, it is not entitled to obtain a second payment for the same patented items.
Fast-track enforcement of IP rights using Customs and the International Trade Commission (Market intelligence)
Most corporate counsel are well acquainted with the costs and benefits of district court litigation to enforce IP rights. Many, however, are less well versed in the administrative alternatives available to stop infringing imported goods at the border. While administrative procedures do not provide for monetary damages, they do offer relief that is faster and more reliable than district court litigation.
Written description in chemical and pharmaceutical patents (Market intelligence)
The written description requirement in the chemical and pharmaceutical industries is based on a unique, everevolving factual situation necessitating the application of what would otherwise be a technology-neutral statute. In light of the range of issues presented, drafting, prosecution and enforcement strategies have become more complicated and exacting, with the courts providing a rather ambiguous guide as to what will be sufficient. As the Federal Circuit recently warned, an issue involving written description “must be decided on its own facts” and “the precedential value of cases in this area is extremely limited” (Noelle v Lederman, 355 F 3d 1343 (Fed Cir 2004)).
Administrative challenges to US patents (Market intelligence)
Sooner or later, a patent manager or patent counsel will be faced with a patent which an employee believes should never have been granted or a patent application that he or she believes should never issue. Sometimes the patent or patent application is viewed as ‘reinventing the wheel’; sometimes the technology described is deemed to be so weak as to be impractical; and sometimes the invention is believed to have been done by another perhaps even by someone in the same company. The patent manager or counsel may also have information that leads him or her to suspect that a patent application will be filed on subject matter that does not appear to be patentable. Regardless, the patent manager or counsel needs to deal with the situation.
Hiding in plain sight: avoiding damages for wilful patent infringement (Market intelligence)
Under the US patent system, the only thing worse than being found to be an infringer is being found to be a wilful infringer. A wilful infringer not only pays compensatory damages, but may also, under certain circumstances, face enhanced damages, which can be as much as three times the compensatory damages (35 USC 284). The best way to avoid this fate is to avoid a finding of infringement; in general, businesses choose to defend against a patent infringement claim only if they believe that they have a strong non-infringement, invalidity or unenforceability defence (or if the demanded damages are deemed grossly excessive). At times those careful calculations fail, however, and the court enters a judgment of infringement. This chapter considers some steps that a patent infringement target can take before trial to minimise the possibility of a finding of wilfulness.
Hatch-Waxman declaratory judgments (Market intelligence)
The Drug Price Competition and Patent Term Restoration Act 1984 (commonly referred to as ‘Hatch-Waxman’) attempts to strike a balance between the interests of innovative drug manufacturers and generic manufacturers. As part of this balance, an innovator alerts the public and generic competitors as to which patents it believes cover its Food and Drug Administration (FDA)-approved drug product or methods of the product’s use by listing the patents in the Approved Drug Products with Therapeutic Equivalence Evaluations (commonly referred to as the ‘Orange Book’). While an innovator may list several patents in the Orange Book, it may not assert all patents against the generic manufacturer (eg, if it concludes that the generic’s product does not infringe certain patents). This can lead to uncertainty for generics, since nothing in Hatch-Waxman will stop an innovator from later asserting those same patents against the generic’s product after market launch. As a result, generics often seek a declaratory judgment that an unasserted patent is invalid or not infringed, and recent Supreme Court and Court of Appeals for the Federal Circuit decisions have given more strength and structure to declaratory judgment actions in the area of Hatch-Waxman.
ArgentinaPunitive damages: coming soon to IP rights cases? (Market intelligence)
Until recently, punitive damages in civil cases were not regulated by statute. However, many scholars and practitioners argued for the inclusion of this penalty in the civil law system. Until April 2008 the general rule in civil cases was to apply Article 1109 of the Civil Code, which provides that damages are to be awarded according to the damage caused, leading to the award of compensatory damages only. This rule applied to IP rights cases. The Argentine legal system follows the principle of compensation for actual damage; many consider that the award of damages beyond the actual damage caused would constitute unjust enrichment. However, this opinion may have to change due to the entry into force in April 2008 of Law 26,361, which modifies the Consumer Law (Law 24,240).
BrazilMoving with the times: major changes to the IP framework (Market intelligence)
In 2007 the Office of the US Trade Representative moved Brazil from the Priority Watch List to the Watch List in its Special 301 Report, an annual review of the global state of IP rights protection and enforcement. This ranking was maintained in the 2008 Special 301 Report, further recognising the escalating momentum in Brazilian IP rights enforcement.
ColombiaProving the notoriety of your trademark (Market intelligence)
Common examples of well-known trademarks include COCA-COLA, MERCEDEZ BENZ, JUAN VALDEZ, MICROSOFT, WAL-MART and INTEL. Although these marks have different meanings, origins and characteristics, they all have one key factor in common: they each generate an extraordinary level of recognition among consumers. This level of knowledge is known as notoriety.
JamaicaTapping into the value of intellectual property (Market intelligence)
With its increasing prominence in global trade, intellectual property has become an inescapable issue for developing countries, several of which have reluctantly embraced the modern IP regimes mandated by the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of IP Rights (TRIPs).
MexicoWill the new IP regional court addressWill the new IP regional court address growing IP litigation concerns? (Market intelligence)
The Federal Court of Tax and Administrative Affairs (FCTAA) has competence to decide appeals filed against decisions issued in IP matters (ie, court proceedings as well as trademark or patent applications). This court is divided in 32 regional courts which hear all administrative and tax cases. Eleven regional courts are located in Mexico City, with the other 21 spread across the rest of the country
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