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This article focuses on the uses of the term "insolvency" in the avoidance context, including the impact of the 2004 case, <i>Heilig-Meyers Co. v. Wachovia Bank N.A. (In re Heilig-Meyers Co.)</i>, 319 B.R. 447 (Bankr. E.D. Va. 2004), which, while limiting its analysis to a preference context, sheds some light on judicial gloss on the term "insolvency" as it is used both explicitly and implicitly throughout the Code. In addition, it examines definitions of "insolvent" and the presumption of insolvency in preference actions, discusses fair valuation and going-concern valuation methodology, and looks at the standard of proof and types of evidence to establish insolvency (including retrojection and projection).
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Regardless of the route a landlord and tenant take to arrive at the mutual decision to terminate a lease, the final steps will require execution of a lease termination agreement. Sometimes, in their haste to get out quickly, landlords and tenants overlook many issues they should consider before signing. This article will help landlords and tenants continue to get out quickly, while preventing them from overlooking issues they should consider before executing such an agreement.
Highlights of the latest intellectual property news from around the country.
In a case that should serve as a warning to firms with active intellectual property development programs and that have, or aspire to have, the federal government as a customer, the U.S. Court of Appeals for the Federal Circuit recently ruled that a government contractor that failed to properly disclose an invention developed pursuant to a government contract forfeited title and all rights to the invention and its related patent. <i>See Campbell Plastics Eng'g & Mfg., Inc. v. Brownlee</i>, No. 03-1512, 2004 U.S. App. LEXIS 23502 (Fed. Cir. Nov. 10, 2004). The case demonstrated the government's willingness to seek, and ability to obtain, the particularly harsh remedy of forfeiture.
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The Hatch-Waxman Act, enacted in 1984, first permitted the marketing of generic pharmaceuticals based on a showing of bioequivalence, not safety and efficacy, through the use of an Abbreviated New Drug Application ("ANDA"). By significantly lowering the barrier to entry for generics, this change provided the impetus for rapid growth of the generic pharmaceutical industry in the United States. In exchange for this barrier lowering, Congress provided the holder of the previously approved new drug application ("NDA") with patent term extensions based on FDA regulatory delay.
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Members of Congress rely on them, and many lawyers compulsively check them, but until recently, most users did not realize that every e-mail message sent to or from their BlackBerry handheld device is routed through a Relay station in Canada, which Research in Motion, Ltd. ("RIM"), the maker of the BlackBerry, calls home. The location of this Relay was a central issue in a patent infringement dispute between NTP, Inc., the holder of patents related to mobile electronic e-mail, and RIM, with RIM claiming it did not infringe NTP's patents because a key component of its BlackBerry system, and a necessary element of NTP's patent claims, resides outside the United States. But the courts have sided with NTP. (Editor's note: The case was recently settled. See IP News for details.)
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Price fixing arrangements have been held to be clear violations of the antitrust laws for many years. <i>United States v. Socony-Vacuum Oil Co.</i>, 310 U.S. 150, 223 (1940) ("Under the Sherman Act a combination formed for the purpose and with the effect of raising, depressing, fixing, pegging, or stabilizing the price of a commodity in interstate or foreign commerce is illegal <i>per se</i>"). Whether a creative patent license agreement that impacts price constitutes a price fixing arrangement is, however, often less than clear. This article discusses the Supreme Court and Courts of Appeals cases that set the stage for the types of patent licensing arrangements that will be seen as price fixing, and provides an overview of the Department of Justice's take on patent licensing arrangements and how it will scrutinize such arrangements under the antitrust laws. Finally, this article reviews recent case law discussing the intersection of patent and antitrust law.
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As the paradigm of corporate value continues to shift from tools and machinery to ideas and innovation, there is an increasing drive to identify new and innovative ways to monetize that value. With more than two-thirds of the S&P 500 market capitalization coming from intangible assets, traditional monetization methods such as the sale, licensing, donation, and enforcement of intellectual property rights are evolving as innovative intellectual property managers and investment professionals look for ways to leverage some of that value. One such approach is the securitization of the royalty streams associated with intellectual property assets.
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For a variety of reasons, manufacturers owning patent rights may find it beneficial to assign their patents to a patent-holding company set up as a wholly owned subsidiary of the manufacturer. Using a holding company to manage a patent portfolio may permit the holding company to take advantage of favorable state tax treatment of licensing revenues. Through the use of a royalty-paying grant-back license to the manufacturer, placing patents in a holding company may help produce a tax deduction for the manufacturer. Administrative conveniences of having one corporate entity focus on maintaining and maximizing the return on patent rights may also justify transferring a manufacturer's patents to a holding company. Some also believe that having a holding company, rather than the manufacturer, enforce patent rights in litigation can make the litigation process easier on the manufacturer.
Franchise attorneys say that the new federal Class Action Fairness Act of 2005 ("CAFA") will be beneficial to franchisors, but they do not predict that the new law means the end of class action litigation between franchisors and franchisees, nor by consumers or employees against franchise systems. In fact, some attorneys suggest that CAFA might result in more litigation, as plaintiffs file lawsuits in individual states rather than seeking national class action status through a case brought before a state court.
