Franchisors and IP Licensors Can Save State Income Taxes
March 01, 2004
On Oct. 23, the New Jersey tax court issued a decision that most tax experts expect will change the direction state income taxation has been taking for the past decade. The new direction will reopen an opportunity for franchisors and other licensors of intellectual property such as trademarks and patents to avoid paying state income taxes by using intellectual property holding companies based in tax-haven states such as Delaware and Nevada.
Federal Circuit Looks Back to the Future to Construe Terms
March 01, 2004
A standard plot element of time-travel science fiction is that those journeying to the past must first be sternly warned that anything they do to change the past — stop the car before it plunges over the cliff, warn the wagon train of the bandits lurking ahead, select paper instead of plastic at the checkout line — has unforeseeable consequences that could render the future (and hence, the present) completely unrecognizable. The idea, of course, is that what happens in the past affects the future.
FTC Proposal Could Dramatically Affect the Patent Landscape
March 01, 2004
After conducting a study on how the U.S. patent system affects competition and innovation, the Federal Trade Commission (FTC) has suggested several legislative and judicial reforms to current U.S. patent law that might change the way we litigate patents. If implemented, these reforms could make it easier to challenge the validity of patents and could provide accused infringers with additional defenses to charges of infringement and willful infringement.
Patent Enforcement Delay Now May Be Fatal Error
March 01, 2004
The Lemelson patent era may finally be over. In a decision issued on Jan. 23, a Nevada federal court ruled that a number of patents invented by Jerome H. Lemelson were invalid and unenforceable.
When to Seek Opinion Counsel in Patent Litigation
March 01, 2004
Your company is vigorously developing new devices and methods in a promising technical area. The head of the development team calls you, as general counsel, for advice. Two U.S. patents were just issued that may impact a device your company is prepared to market and the method your company uses to make the device. You also have received a letter from your most vigorous competitor — one who has a well-funded technology program and a history of pursuing infringement actions. The letter advises that there is reason to believe that your company is infringing. Your company believes that it has the right to proceed to market, but wants your guidance on what to do.
Reforming Characteristics of Maintenance Deposits to Avoid Treatment as Cash Collateral
March 01, 2004
One of the common issues facing businessmen and lawyers in the lease financing of complicated equipment such as aircraft, is how to impose an obligation upon the lessee to pay and segregate funds sufficient to assure aircraft maintenance expenses, while preventing these funds from being treated as property of a debtor and cash collateral within the meaning of Bankruptcy Code Section 363 (11 U.S.C. '363). If a lessee is asked in a written lease agreement to deposit, from time to time, contemplated amounts of cash by which to assure the lessor that certain long-term maintenance obligations will be funded and completed, or that rent will be paid, then there is a risk that these deposits might be treated as cash collateral and property of the estate. This subjects the lessor to the risk that the bargained-for cash set-aside funds, might, in a bankruptcy case context, not be available for the purposes for which they were originally intended. This article addresses a risk avoidance approach to that problem.
What Leasing Lawyers Should Know About the Rules of Evidence
March 01, 2004
It is an unfortunate consequence of the leasing business that leasing lawyers often become involved in bankruptcy matters. These attorneys, who rarely visit a courtroom, may think they don't need to worry about the rules of evidence. Yet evidentiary rules can provide critical protections. In a typical case or negotiation, lawyers create and circulate tremendous amounts of information ' much of which would be potentially damaging if obtained by other parties. To protect this information, leasing counsel need to be familiar with the rules of evidence and how courts have interpreted these rules. The case law interpreting these rules is not static; rather, it is constantly evolving in ways relevant to counsel who specialize in corporate insolvency. For example, a series of recent cases has explored the boundaries of the attorney-client privilege, examining such questions as, if counsel for a creditors' committee hires a financial expert, is the expert's work protected?
True Lease v. Disguised Security Interest: A New Dilemma
March 01, 2004
Over the past several years, courts faced with the issue of whether a lease is a "true lease" or a "disguised security interest" have been making it more and more difficult for lessors to have their leases confirmed as true leases. Through a process of focusing on economic reality instead of the intent of the parties and increasing the amount of residual value required at the end of a lease term, courts are creating a dilemma for the leasing industry. Certain segments of the equipment leasing industry are more severely effected by these changes than others.
In The Marketplace
March 01, 2004
Highlights of the latest equipment leasing news from around the country.
Attorney Fees Update
March 01, 2004
Depending on the circumstances and the law, parties on either side of an entertainment suit may ask a court for an award of attorney fees. Following are court rulings from recent months that deal with this and related concerns. In this and future issues, <i>Entertainment Law & Finance</i> will report on such relevant rulings in Attorney-Fee Updates.
