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Sunday, 9 October 2016
Trans-Pacific Partnership Agreement Leaked by WikiLeaks

Trans-Pacific Partnership Agreement Leaked by WikiLeaks

The apparent final version of the Trans-Pacific Partnership Agreement (TPP) has been leaked by WikiLeaks.  A copy can be found, here.  While I have not reviewed the entire agreement in depth, here is the section concerning biologics that was apparently holding up the agreement, in part:

Article QQ.E.20: {Biologics}

1. With regard to protecting new biologics, a Party shall either: (a) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic62,63, provide effective market protection through the implementation of Article QQ.E.16.1 and Article QQ.E.16.3 mutatis mutandis for a period of at least 8 years from the date of first marketing approval of that product in that Party; or alternatively (b) with respect to the first marketing approval in a Party of a new pharmaceutical product that is or contains a biologic, provide effective market protection: Without Prejudice

(i) through the implementation of Articles QQ.E.16.1 and QQ.E.16.3 mutatis mutandis for a period of at least 5 years from the date of first marketing approval of that product in that Party;

(ii) through other measures; and (iii) recognizing that market circumstances also contribute to effective market protection to deliver a comparable outcome in the market.

2. For the purposes of this Section, each Party shall apply this provision to, at a minimum, a product that is, or alternatively, contains, a protein produced using biotechnology processes64, for use in human beings for the prevention, treatment, or cure of a disease or condition.

3. Recognizing that international and domestic regulation of new pharmaceutical products that are or contain a biologic is in a formative stage and that market circumstances may evolve over time, the Parties shall consult after 10 years, or as otherwise decided by the TPP Commission, to review the period of exclusivity provided in paragraph 1 and the scope of application provided in paragraph 2, with a view to providing effective incentives for the development of new pharmaceutical products that are or contain a biologic, as well as with a view to facilitating the timely availability of follow-on biosimilars, and to ensuring that the scope of application remains consistent with international developments regarding approval of additional categories of new pharmaceutical products that are or contain a biologic.

[Footnote] 62 Nothing requires a Party to extend the protection of this paragraph to:

(a) any second or subsequent marketing approval of such a pharmaceutical product; or

(b) a pharmaceutical product that is or contains a previously approved biologic.

[Footnote] 63 Each Party may provide that an applicant may request approval of a pharmaceutical product that is a biologic under the procedures set forth in Article QQ.E.16.1(a)-(b) within 5 years of entry into force of this Agreement, provided that other pharmaceutical products in the same class of products have been approved by the Party under the procedures set forth in Article QQ.E.16.1(a)-(b) before entry into force of this Agreement.

[Footnote] 64 Drafters’ note: The Parties understand that Article QQ.A.5 applies to the provisions of this Chapter, including the definition of “biotechnology process” in this paragraph. Accordingly, the Parties understand that each Party may determine the meaning of biotechnology processes in its legal system and practice.

The Pharmaceuticals Research and Manufacturing Association (PhRMA) has already expressed displeasure with the term of data protection for biologics.   PhRMA’s president stated:

“We are disappointed that the Ministers failed to secure 12 years of data protection for biologic medicines, which represent the next wave of innovation in our industry.  This term was not a random number, but the result of a long debate in Congress, which determined that this period of time captured the appropriate balance that stimulated research but gave access to biosimilars in a timely manner.”

See more at: http://phrma.org/media-releases/phrma-statement-on-the-transpacific-partnership-negotiations#sthash.hhnHaxO9.dpuf”

For more information on the Copyright provisions concerning the TPP, see the Electronic Frontier Foundation.  The TPP still must be approved by Congress, and recently Democratic Presidential Candidate Hillary Clinton stated she does not support the agreement—reversing her earlier opinion and putting her at odds with the Obama Administration.  [Hat Tip to Professor Irene Calboli at the Texas A&M University School of Law]. 


Homeowners, insurers have responsibilities in repair claims

We often hear from consumers who are concerned about their home repair or rebuild insurance claims and have questions about their insurer's role in overseeing the contractors' work.  

Your insurance company is responsible for paying the claim, as laid out in your homeowner policy. Typically, it is your responsibility to oversee the project with your contractor, and when applicable, your lender. The exception would be if your insurance company has given you assurances or if your policy contains a provision that obligates the insurer to manage a covered home repair or rebuild.

However, if you are using an insurer’s recommended (sometimes called “preferred”) contractor, you should expect assistance from the insurer in answering your questions about the contractor’s actions and performance. 

Many insurers also require the homeowner to stop the damage from getting worse--this is called loss mitigation in your policy. If you don’t mitigate the loss, you could be on the hook for paying for any resulting additional damage. For example, if you have water damage in your home, you must control it as soon as you discover it. If you let it go until you get around to calling your insurance company, you will be responsible for any resulting damage, including rot, mildew or mold. Even if you use an insurer's preferred contractor, you are still responsible for mitigating the loss prior to the contractor showing up and starting the repairs. 

More information:
Questions? You can contact our consumer advocates online or at 1-800-562-6900.

Making money from patent pools: a free webinar

Alfred Chaouat (Senior Vice-President Licensing, Technicolor, and the immediate past president of LES France) is in line to deliver the next Oxfirst webinar on 22 October 2015 at 15.30 BST. The subject is "IP monetisation through patent pools". This is a topic that Alfred should know about in some depth through his own personal experience, since he represents Technicolor in some patent pools.

What's this webinar about? Oxfirst explain:
In this talk we address the pros and cons of patent pools as a licensing vehicle and look at how and to what extent patent pools allow patent owners to maximize revenues from their patents.

High-technology product manufacturing requires access to a diverse pool of technologies that are owned by different organizations all over the world. The costs of licensing these disparate rights on a bilateral basis can be so high as to ultimately make the deal unviable. As IP commercialization tactics improve, innovative licensing mechanisms emerge that can help firms avoid many of these transaction costs, while allowing them to access complementary patents. By aggregating patents according to product requirements, manufacturers are able to license and cross-licenses all the necessary patents in a single transaction. Royalty income is distributed among patent owners according to the quality of patents submitted.
For further details email Info@oxfirst.com. To register, click here. The webinar is free of charge.
Saturday, 8 October 2016
Professor Rothman's Right of Publicity Resource

Professor Rothman's Right of Publicity Resource

The likeness and name of a celebrity can be very economically valuable.  Notably, Michael Jordan recently disclosed in a trial concerning the unlicensed use of his likeness and name that he made $100 million in sponsorship deals in one year.  Jordan was successful in that suit with a jury awarding him almost $9 million in damages.  In the United States, the right of publicity is one of the legal rights used to protect one's likeness and name.  The right of publicity is also a matter of state law and the scope, duration and existence of the right varies from state to state.  So, there are potentially 50 different state laws concerning the right.  In a 2011 article titled, "Why a Federal Right of Publicity Statute is Necessary," Kevin L. Vick and Jean-Paul Jassy make convincing arguments for why a federal right of publicity law should be passed and that it should preempt state law.  Notably, one significant concern is the breadth and length of some states' right of publicity laws, particularly in light of First Amendment concerns.  The scope of the problem with patchwork state law can be seen elegantly with Loyola Law School's (Los Angeles) Professor Jennifer Rothman's new right of publicity website: Rothman's Roadmap to the Right of Publicity. The website helpfully sets forth the law impacting the right of publicity in all 50 states and includes commentary concerning the right.  Take a look for yourself, here. 
Thursday, 6 October 2016
OIC orders Fife RV & Auto Center to stop selling warranties

OIC orders Fife RV & Auto Center to stop selling warranties

OIC has ordered Fife RV & Auto Center to stop selling vehicle protection product warranties effective immediately. The company has been selling a warranty to repair any surface damage on the interior and exterior of vehicles. Since 2012, the company has sold 236 warranties to Washington consumers without being authorized to do so.    

Warranties are considered insurance under Washington state law and businesses must be authorized to sell them in Washington state.

The company has a right to demand a hearing and it must honor the terms of all warranties it sold to Washington consumers. Read more about warranties and service contracts sold in Washington.

If you feel you have been treated unfairly or have questions about insurance in Washington state, contact our consumer advocates online or by phone at 1-800-562-6900.




Monday, 3 October 2016

Consumers ask, why is my repair taking so long?

Our consumer advocates receive many calls from consumers wondering why repair work gets delayed, whether it be an auto repair or home repair that is being covered by insurance. 

Generally, if you are using the insurer’s recommended auto repair shop, building contractor, cleaning service, or any other vendor, you should expect the insurer will monitor the progress of the repair and and that you will not be responsible for any added expenses due to repair delays. We do, however, expect the insurer will communicate with your repair shop and contractors in a timely manner to be able to come to an agreed price of and timeline for a repair.

If you decide to use your own repair shop, building contractor, cleaning service, or any other vendor that is not one recommended by your insurance, it is your responsibility to monitor the repair progress and monitor the vendor. Delays created by your shop or contractor and any added expenses or inconvenience created by those delays are not the responsibility of the insurer. In those cases, the insurer will expect you to pay for extra car rental days or alternate living arrangements if a delay is caused.

If you are working with an electrician, plumber, elevator mechanic or manufactured home installer, you should protect yourself by verifying they are licensed with the state Department of Labor and Industries.

In any event, it is always a good idea for you to take an active role in the claims process--do not expect that everything will be done automatically by the insurer or the business that is doing the repair work. Being involved in a claim by its very nature is unpleasant, but you can help lessen frustration by asking questions and keeping track of the progress of your repair.
If you have questions, you can contact our consumer advocates online or at 1-800-562-6900.


Sunday, 2 October 2016

Innovation in Latin America: the tunnel may still be there, but the light is still burning

The following report was provided by Felix Rozanski, based in Buenos Aires, who is the Coordinator at the Study Center CEDIQUIFA and Secretary of ASDIN (Intellectual Rights Association).
The Sixth Annual Latin America Seminar on “The Value of Intellectual Property for Innovation and Health” was recently held at Cayetano Heredia University in Lima, Peru. A varied group of public officials, judges and experts from throughout Latin America gathered to discuss the promotion of innovation, particularly from the perspective of the legal tools offered by patents and other rights available under the intellectual property regime. The process of awareness about the value of innovation and intellectual property can be said to have started in Latin America with the conclusion of the negotiations over the establishment of the World Trade Organization and TRIPs Agreement in 1995, this despite the fact that portions of these arrangements were (and to some extent still are) strongly resisted by many emerging economies. The bilateral trade agreements concluded with the United States after TRIPs, the educational campaign implemented by WIPO, the support provided by the lines of credit made available by the World Bank and the Inter-American Development Bank, as well as lessons learnt from the success of such countries as Israel, South Korea and Singapore, have been key contributory factors.

It is encouraging to note that a number of Latin American governments are giving explicit recognition to the crucial importance of innovation for increasing competitiveness and promoting growth at the national level. Therefore, although the proportion of investments directed to promoting innovation is still relatively low, the trajectory is positive and at an increasingly higher rate. Thus, it is currently estimated that investment in innovation in the region as a whole is 0.68% of the growth domestic product (GDP) (versus between 2% to 4% in more developed innovative economies). Only Brazil has reached a level of investment of more than 1% of GDP (albeit before its current economic crisis). In particular, the pharmaceutical sector continues being a major actor in private R&D investment. For example, in Chile, R&D in pharma and biotech is at the top of private investment in innovation (14.38%), followed by software (9.86%).

Still, Latin America continues to wrestle with the problem of how to attract private investment for R&D activities in the region. It is officially estimated that two-thirds of investments in innovation are made by the public sector, while informal estimates suggest that private investment is only about 20% of the total R&D. Regarding how innovation is promoted, each country in the region continues to set its own policies. For example, Peru has approved new tax incentives for R&D investments, effective as of January 1, 2016. Argentina also developed a scheme of providing tax benefits to promote biotech projects, but the law was not implemented. In Chile, research by the public agency CORFO has revealed that R&D-subsidized projects tend to cease as soon as the subsidies come to an end. In Ecuador, an innovative government scheme to hire retired senior experienced researchers to train and help design projects is facing strong headwinds in the face of plummeting international oil prices.

At the intra-country level, there is little coordination among the relevant national agencies in designing and implementing innovation promotion policies, and often such agencies work at cross purposes. There is even less collaboration among countries in the region; mistakes made in one country may be simply repeated in another. An independent Observer monitoring the processes of innovation in the region may be helpful. Such a proposal was made during the Seminar to the Peruvian representative of the Pacific Alliance Free Trade Agreement, comprising Colombia, Chile, Mexico and Peru. Indeed, the Pacific Alliance may be a good opportunity for more extensive collaborations, but to bring it to fruition both the academic and private sectors will need to be more actively engaged. At the enterprise level, only a few firms with activities across Latin America are involved in innovation. On the whole, private companies in the region still must still work on how to develop an innovation culture. Designing realistic long-term innovation strategies is necessary as is better training of staff to support such efforts. As mentioned, finance for innovation projects continues being scarce and while there are many startups in the region, few can be described as engaged in technology. Still, the forecast is that more Latin American companies will be investing in R&D in the future. 
As for IP, the biggest challenges are fragmentation at both the intra-national and transnational levels within the region as well inconsistent treatment of IP rights. For instance, regarding incremental inventions, such as new uses, there are substantial differences in the way that Mexico and Brazil deal with them, on the one hand, as compared with Argentina on the other, which provides thin patent protection for pharmaceutical and biotech inventions. Moreover, studies point to the fact that IP rights and the advantages that they offer for innovation and development are still poorly appreciated by public and private researchers in the region. 
At the most basic level, empirical data indicate that better IP effective protection means more foreign direct investment, which is essential for the region, even more so when growth is slowing. In this vein, the myth that patents work against access to medicines is strongly entrenched. In addition, confusion reigns between the process of patent grant and health-marketing authorization. The result is that there are far too few patents being issued. It is estimated that Latin America registers annually a total of 1,400 national patents. In contrast, a country such as South Korea, with less than 10% of the total Latin American population, registers more than 20 times the number of patents. Against this backdrop, the promotional and educational efforts made by the various national IP agencies should be expanded.

A particularly interesting panel at the Seminar dealt with compulsory licenses. The panel discussed the regime currently applied in Ecuador, where 33 applications for compulsory licenses of pharmaceutical products have been filed, out of which eight have been withdrawn by the applicants, five refer to patents that have ready already expired, ten have already been granted by the Patent Office, while the rest are in the grant process. In contrast, in other Latin American countries, such as Peru and Colombia, applications for compulsory licenses have been far less successful due to the failure by the applicants to provide sufficient supporting the request. Moreover, the regulatory regime for the compulsory licenses in place in Ecuador (Instruction 10-04 issued by IEPI, the I.P. Agency) is not consistent with international and national legislation, with the result that the granting of compulsory licenses under this provision has the perverse effect of de facto abrogating rights in pharmaceutical patents. In doing so, the end result is to send a negative message to foreign investors as to their property rights in Ecuador.

As for the protection of test data, the regulations in force in those Latin American countries that do accept test data protection for the registration of pharmaceuticals by the health authorities restrict such protection to new molecules. Here again, there is a contradiction between government efforts to promote innovation while, at the same time, not providing data protection for incremental innovations, which may well make more sense for developing countries than the invention of an entirely new molecule. In this regard, it is noted that Argentina and Brazil do not grant any type of test data protection for pharmaceuticals.

Overall, the principal take-away from this year’s seminar is that there is much work to do in the region to meet the challenge of attracting more private R&DS investments for innovation.
Saturday, 1 October 2016

What is the insurance company's role in home repairs?


It’s common for consumers to call us with their concerns about their home repair or home rebuild claims and the insurer's involvement in oversight of the work. The insurer’s duty is to pay according to the terms laid out in the policy. Unless your insurance policy contains a provision, or unless your insurer has given you assurances, that obligates them to manage a covered home repair or rebuild, it is your responsibility to oversee the project with your contractor, and when applicable, your lender.


However, if you using an insurer’s recommended (sometimes called “preferred”) contractor, then you should expect assistance from the insurer in answering your questions about the contractor’s actions and performance.

Read more about homeowner insurance.

Questions? You can contact our consumer advocates online or at 1-800-562-6900.


Scientists predict another St. Helens eruption; make sure you are covered!

Scientists predict another St. Helens eruption; make sure you are covered!

Mount St. Helens, Washington’s most active volcano, is showing signs of reawakening, according to scientists, who say it’s only a matter of time until it erupts again. An eruption started 10 years ago that lasted until 2008, outlined in The Columbian newspaper. The lava dome has since rebuilt and the U.S. Geological Survey is seeing signs of magma activity under the volcano, according to the Associated Press. 

The good news is that most homeowner and auto policies will cover some degree of damage due to volcanic eruptions, but there are, of course, exceptions. The key is evaluating your home and auto policies and talking to your insurance agent before an eruption occurs.

Read more about volcano coverage for your home and auto. If you have questions or complaints about your insurance, contact our consumer advocates online or by phone at 1-800-562-6900.

Some insurance policies may cover living expenses for those displaced by wildfires

Families displaced from their homes due to wildfire evacuations may be eligible to be reimbursed for their additional living expenses if their insurance policy provides for such claims. Examples of those expenses include lodging, meals and purchasing toiletries if a consumer is displaced by the wildfire or as a result of an evacuation order.
One of several Blackhawk helicopters that is fighting wildfires in Eastern Washington. Photo courtesy of Washington state Emergency Management Division. 
Consumers in several areas in Eastern Washington have been ordered to evacuate at different points during the wildfires. We are hearing reports that some insurance companies are requiring consumers to provide a copy of the municipality’s emergency evacuation order before they will pay for additional living expenses. There is nothing in state laws or rules that prohibits an insurance company from asking for this information. If you need a copy of an evacuation order, contact the emergency management teams in your area.

If you have access to your insurance policy, read it to find specific information about what is covered, your deductibles, what kind of documentation is required and policy limitations or exclusions. If you don’t have a copy available to you, contact your insurance company, agent or broker.

Here are more resources from the Office of the Insurance Commissioner:
OIC is hiring IT Specialist 5 in Tumwater

OIC is hiring IT Specialist 5 in Tumwater

OIC is seeking a highly motivated IT Specialist 5 (IT Security/ Network/ Server Administrator) in our Tumwater headquarters. The IT Specialist 5 is the lead IT security specialist for the agency and is responsible for planning, designing, configuring and supporting the agency’s network infrastructure and servers. The ideal candidate must have strong knowledge of IT network and server infrastructure, Microsoft Active Directory, LAN/WAN administration, configuring network hardware and software and enterprise backup software.

OIC supports employees through regular training and opportunities to implement new technologies and participate on multiple projects teams. We also offer tuition reimbursement, free parking and participate in the state's commute trip reduction program.

If you are interested in joining our team, view this and other jobs at OIC.
Friday, 30 September 2016
Important change may affect business owners’ insurance

Important change may affect business owners’ insurance

Business owners carry commercial insurance policies to protect their financial interests in their property and to cover their liability arising out their business operations. One of the important liabilities that is covered is in the event that a business is sued. The typical commercial insurance policy includes a clause called “duty to defend,” which means the insurance company is required to defend the business if it is sued and it will pay the associated legal costs. However, some commercial policies are being changed to require businesses to repay legal defense costs if the insurer later determines a claim is not covered.


How will you know if your insurance company will require you to repay legal costs? Read your policy or talk to your agent , broker, or with the insurer. Insurers may be adding the clause to new policies or to renewing policies, so it’s important to know what your policy says.

It’s also important that you promptly report lawsuits to your insurance company. Reporting this information to the insurer too late can impede the insurer’s ability to defend your business against the lawsuit. 

More information:
Questions? Contact our consumer advocates online or at 1-800-562-6900.
Health insurers must provide transparency tools to consumers on Jan. 1

Health insurers must provide transparency tools to consumers on Jan. 1

Health insurers are required to provide transparency tools via their websites starting Jan. 1, 2016, to consumers who are enrolled in their plans. The tools provide information about treatment costs, quality of care and other patients’ experience with the medical providers. These tools have not been readily available to consumers before now. The requirement is in the Affordable Care Act and is being implemented in Washington state now.

Each insurer must provide written verification to the Washington state Office of the Insurance Commissioner by Feb. 1 of each year that the company is in compliance with this state law, which was enacted by the 2014 Legislature. The OIC provides a form for health insurers to fill out and send to us, called an attestation. We are required to post the form 60 days before it's due.

You can read more about the rules the OIC wrote to implement this requirement, which were recently adopted, or about the state law (RCW 48.43.007). The OIC also provided instructions and the attestation form for insurers to return to us by Feb. 1, 2016.
Seattle insurance producer loses license

Seattle insurance producer loses license

The OIC revoked the license of Christopher S. Gloria, 39, of Seattle effect Sept. 26. Gloria was licensed as a Washington state insurance producer and was initially licensed in July 2012. We revoked his license for misrepresentation and fraudulent activity in his dealings with a Washington couple. 
In March 2013, the couple met with Gloria to find out if they could find equal or better whole life insurance for a lower premium than they had on their existing policy. They told Gloria they didn’t want to give up their existing policy, they simply wanted some comparison quotes. Gloria gave the couple documents to sign, which he said were necessary to obtain a quote, but in fact allowed him to replace their existing policies with new ones, underwritten by a different insurance company. Gloria also requested a voided check, which the couple gave him.  
Once the couple realized that their old policies had been replaced with new ones, they instructed Gloria that they wanted their old policies restored. From March through September 2013, the couple repeatedly contacted Gloria and he repeatedly told them it was in the works, even when the old company told the couple their policies were still not reinstated. 
Gloria is not allowed to sell insurance in Washington state or to Washington consumers. He has 90 days to appeal the revocation of his license. You can read the OIC order revoking his license here. 
If you feel you have been treated unfairly or have questions about insurance in Washington state, contact our consumer advocates online or by phone at 1-800-562-6900.
 
 
Patent Trolls Have a New Competitor: Google’s Patent Purchase Promotion Program

Patent Trolls Have a New Competitor: Google’s Patent Purchase Promotion Program

In an apparent effort to “clear up the secondary market for patents,” Google has launched its Patent Purchase Promotion Program.  Google is offering to purchase your patents.  The details regarding the submission process are here.  The general timeline for the program is as follows:  

April 27, 2015 Patent Purchase Promotion is Announced

May 8 to May 22 Submission Window is Open

May 23 to June 26 Submission Review Period

By June 26 Parties notified either of our intent to move on to the next stage ( e.g ., some further diligence) or our intent to pass on the opportunity.

By July 8 Parties that are notified of Google’s tentative intent to purchase must supply further information to Google regarding encumbrances, litigation, etc. and provide a signed agreement, banking information, and relevant tax related information.

By July 22 Google will further review the additional materials provided. Assuming Google remains interested in completing the transaction upon review of the above material, Google will return a fully executed agreement within about 10 days of receipt (and no later than July 22, 2015) and payment will occur within 30 business days thereafter.

As recently discussed here, patent package sales are up.  However, Google only allows you to submit one patent at a time, but a party can make multiple submissions.  This, perhaps, allows the submitter to focus on the patents of value.  Indeed, the submitter must disclose the sales price up front and is essentially “locked in” to that price (at least, I think, as a ceiling).  If a sale is approved, the submitter retains a non-exclusive, fully paid up, non-transferable, non-assignable, non-sublicensable worldwide license to practice the invention.  The sales agreement is here.  The program currently only applies to U.S. patents.  A good idea?  Google does state that the program is an experiment--perhaps patents from other jurisdictions are next. For more commentary, see Corporate Counsel’s Lisa Shuchman’s article, “Google Wants to Outfox Trolls by Buying Up Patents” (April 28, 2015). 
Patent Package Sales Up for 1st Quarter of 2015

Patent Package Sales Up for 1st Quarter of 2015

The Richardson Oliver Law Group (ROL Group) has released statistics (April 30, 2015) on patent packaging purchases for the first quarter of 2015.  ROL Group notes that patent package purchases are up, but also notes that prices are down.  There were around 49 patent packages sold in the first quarter of 2015 compared to between 11 to 38 packages per quarter from the first quarter of 2013 to the fourth quarter of 2014.  The leading purchaser is RPX with 13.5.  Intellectual Ventures, 9051447 Canada, Apple, Rakuten, Domo and Kloninklijke Phillips purchased multiple packages.  What explains the upswing in patent package sales?  Here is a little speculation.  I wonder whether patent packages are at bargain prices because of the relatively recent U.S. Supreme Court cases concerning patent eligible subject matter, attorney fees and claim definiteness, as well as the new procedures at the USPTO.  I suppose, as one leading patent commentator has said, you really only need one good patent (like a bullet). 
Restricting the Usage of a Valuable Asset Post-Mortem: The Robin Williams Trust

Restricting the Usage of a Valuable Asset Post-Mortem: The Robin Williams Trust

Under U.S. wills and trusts law, unlike other jurisdictions, the intent of the decedent is a paramount consideration in the enforcement of restrictions on the disposition and exploitation of assets after death.  In other jurisdictions, courts tend to be wary of attempts by decedents to control valuable resources after their death because of concerns with dead hand control.  Why should the dead be able to make binding decisions on the living concerning scarce and valuable resources?  Isn’t it better for the living to make those decisions in light of current considerations and needs of the beneficiaries?  In the United States, courts tend to view restrictions on alienability of property by beneficiaries not so much as dead hand control, but as essentially conditional gifts.  Absent some other overriding public policy, courts are likely to enforce those restrictions. 

Notably, as discussed recently on this blog here, the right of publicity is a very valuable right in the United States.  Under many right of publicity statutes, it is not just a right a celebrity has during life, but it is a right that can be transferred at death.  There is a viable and potentially very valuable post-mortem right.  For example, California Civil Code section 3344.1 provides in part: “The rights recognized under this section are property rights, freely transferable or descendible, in whole or in part, by contract or by means of any trust or any other testamentary instrument, executed before or after January 1, 1985. . . . An action shall not be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of 70 years after the death of the deceased personality.”  Notably, the Internal Revenue Service (tax collecting authority in the United States) is embroiled in a lawsuit concerning the valuation of Michael Jackson’s right of publicity, among other assets of the estate.  The Internal Revenue Service has claimed “a value of $434,264,000 for Jackson's ‘image and likeness,‘’ and Michael Jackson’s estate claimed a value of $2,105 (Notably, the Internal Revenue Service recently upped the amount of the tax liability!).  As you can imagine, the difference between the tax liability based on the two valuations is enormous.  The difference apparently rests on a disagreement about what post-mortem activities can be used to calculate the value of the estate at death—an apparent ambiguous question under U.S. law that this case may resolve.  

Ordinarily under U.S. trust law, a trust is not published and is usually private.  However, if there is litigation concerning a trust, a trust may be made public.  Recently, the Robin Williams trust was published as an exhibit to litigation concerning a family dispute about the disbursement of some personal property.  The Robin Williams trust attempts to address taxation concerns by leaving Robin Williams’ post mortem right of publicity with his charitable foundation.  This addresses the problem that the estate may have with a huge tax burden at the death of a celebrity that the estate may not have the liquid assets to address.  From the taxation perspective, it appears that the post mortem right is not so much a blessing, but could be a curse for beneficiaries of the estates of celebrities.  

Interestingly, the trust also includes a provision that restricts the exploitation of the right of publicity by the charitable foundation for 25 years from Robin Williams death.  Some commentators speculate that this provision was included in the trust to prevent the usage of Williams’ image in product endorsements or in movies that the William’s may have disagreed with, particularly in the age of digital media.  For example, commentators have pointed to the post-mortem usage of Paul Walker’s digital image in the recent blockbuster Fast and Furious movie.   (But, who doesn't want to see Ms. Doubtfire X?) Notably, the right of publicity in the U.S. is often justified because it provides an incentive for people to develop commercially valuable personas.  However, it is also sometimes justified because of a concern with the right to privacy.  In this particular case, Robin Williams is essentially exercising a form of dead hand control to suppress the usage of his commercially valuable right of publicity.  In the U.S., I have little doubt that courts will enforce the restriction.  However, should we enforce the restriction?  Should we allow this commercially valuable asset to lie fallow for 25 years, particularly when it could be used to benefit a charitable foundation?  Should the foundation be able to challenge the restriction?  For sure, Williams’ intent and right to privacy should weigh heavily in the analysis.  However, he is dead and the "right" trustee may be able to make decisions concerning the exploitation of his right of publicity that may be consistent with Williams' general intent.

For additional commentary and sources, see Audrey G. Young, Use of Foreseeable Post-Mortem Events in Valuing Estate, Estate Planning (April 2015); Eriq Garnder, Robin Williams Restricted Exploitation for 25 Years After His Death, Hollywood Reporter (March 30, 2015); and Natalie Robehmed, Why RobinWilliams Won’t be Making Millions Beyond the Grave, Forbes (October 27,2015). 

European patent markets, trends and consensuses: what comes next?

Following the IP Finance blog's extensive coverage of the IPBCGlobal 2015 conference, the weblog received the following message from Corinne Le Buhan:
"A tweet from @PatentTwit asked "where's the patent market analysis of Europe and Asia? Opening session largely covers US market trends?" This question was discussed briefly towards the end of the panel session, it being suggested that things might change in Europe once the unitary patent came into force and once China had got its act a bit more together. 
I just thought you may also be interested on the recently published report from the EU expert group on patent aggregation.
IMHO it gives an interesting snapshot of the current and anticipated trends in terms of patent markets from a diversity of primarily EU-based stakeholders perspective. I was invited to one of the hearings to bring the innovative SME point of view and we had really good debates that day. The expert group must have had a hard time to deliver a consensus report and recommendations out of the hearings, but I think they did a good job overall, and I’m now curious to see what will come next (see their recommendations in the report).
Readers' comments and prophecies are welcomed. We don't get nearly enough discussion on this blog, so please take the trouble to participate and tell us what you think.
US Securities and Exchange Commission Rules on Crowdfunding Effective

US Securities and Exchange Commission Rules on Crowdfunding Effective

The U.S. Securities and Exchange Commission (SEC) rules on crowdfunding became effective on May 16, 2016.  The rules are a hefty 685 pages long and are available, here.  The Investor Bulletin issued by the SEC Office of Investor Education and Advocacy provides an overview of the rules and the JOBS Act tailored to potential investors, here.  The Investor Bulletin explains that anyone can make a crowdfunding investment, but that there are limitations based on net worth and annual income on the amount that can be invested.  The Investor Bulletin explains: 

If either your annual income or your net worth is less than $100,000, then during any 12-month period, you can invest up to the greater of either $2,000 or 5% of the lesser of your annual income or net worth.
If both your annual income and your net worth are equal to or more than $100,000, then during any 12-month period, you can invest up to 10% of annual income or net worth, whichever is lesser, but not to exceed $100,000. 

Additionally, crowdfunding investments can only be made through a portal and not through other direct means.  "The broker-dealer or funding portal—a crowdfunding intermediary—must be registered with the SEC and be a member of the Financial Industry Regulatory Authority (FINRA)."  The Rules provide numerous requirements for intermediaries to protect investors.  The Investor Bulletin also provides numerous warnings to potential investors concerning the risks associated with crowdfunding.  The Rules provide that, "An issuer is permitted to raise a maximum aggregate amount of $1 million through crowdfunding offerings in a 12-month period." 

Notably, the Rules also state that: 

Certain companies are not eligible to use the Regulation Crowdfunding exemption. Ineligible companies include non-U.S. companies, companies that already are Exchange Act reporting companies, certain investment companies, companies that are disqualified under Regulation Crowdfunding’s disqualification rules, companies that have failed to comply with the annual reporting requirements under Regulation Crowdfunding during the two years immediately preceding the filing of the offering statement, and companies that have no specific business plan or have indicated their business plan is to engage in a merger or acquisition with an unidentified company or companies.

Offering documents must disclose: 

Information about officers and directors as well as owners of 20 percent or more of the issuer; • A description of the issuer’s business and the use of proceeds from the offering; • The price to the public of the securities or the method for determining the price, the target offering amount, the deadline to reach the target offering amount, and whether the issuer will accept investments in excess of the target offering amount; • Certain related-party transactions; • A discussion of the issuer’s financial condition; and • Financial statements of the issuer that are, depending on the amount offered and sold during a 12-month period, accompanied by information from the issuer’s tax returns, reviewed by an independent public accountant, or audited by an independent auditor. An issuer relying on these rules for the first time would be permitted to provide reviewed rather than audited financial statements, unless financial statements of the issuer are available that have been audited by an independent auditor. 

Happy investing!
 
Thursday, 29 September 2016
100+ City Bosses Declare Support for Vote Leave

100+ City Bosses Declare Support for Vote Leave

A group of prominent city leaders have joined together to voice their support for Vote Leave on June 23rd.

In a letter signed by more than a hundred signatories, including Peter Cruddas, Michael Geoghegan, Luke Johnson, Peter Hargreaves, Moorad Choudhry and Paul Marshall, the group argues that the City would:

  • prosper outside the EU,
  • strengthen its lead as the world's largest international financial centre, and
  • continue to make a major contribution to the UK economy and employment

without the threat the EU poses to our financial services industry.

The Letter reads:



Dear Sir,

We write - in our personal capacities - as individuals active in the City of London and UK financial services who share a strong personal commitment to the world’s most vibrant financial centre, and a material interest in its future success. We firmly believe that it can thrive and grow outside the European Union.

As we contemplate the upcoming referendum on UK membership of the EU, we remember that the EU had honourable origins - to heal the wounds of post war Europe, to enable free trade to return the Continent to prosperity. In 1975 there were persuasive reasons for the United Kingdom to join the European Economic Community, and we believe membership was for many years a positive for the UK and the City.

However, we do not believe that the same case can be made for continued membership in 2016.

The EU is now shackled to the Euro, a project doing damage to the social and economic fabric of member countries, including high youth unemployment. Many of us worry that the Eurozone’s problems may prove insurmountable.

Meanwhile there is scant evidence that the EU will foster or support the kind of innovation which is essential if Europeans are to compete with the rest of the world. Specifically, we worry that the EU’s approach to regulation now poses a genuine threat to our financial services industry and to the competitiveness of the City of London.

Assuming good political leadership and an effective regulatory environment, we believe that the City is most likely to strengthen its lead as the world's largest international financial centre, and continue to make a major contribution to the UK economy and employment, outside the EU but with continued access to its capital markets.

We will therefore be supporting the Vote Leave campaign and encouraging others to join us.

Yours faithfully,


Dominic Burke, Group Chief Executive, Jardine Lloyd Thompson PLC

Moorad Choudhry, former Chief Executive, Habib Bank AG Zurich, London

Peter Cruddas, Chief Executive, CMC Markets PLC

Michael Geoghegan, Former Group CEO HSBC Holdings PLC

Peter Hargreaves, Hargreaves Lansdown PLC

Robert Hiscox, Life President, Hiscox Group

Luke Johnson, Risk Capital Partners LLP

Paul Marshall, Chairman and Chief Investment Officer, Marshall Wace LLP

Jon Moulton, Founder and Managing Partner, Better Capital LLP

Crispin Odey, Founding Partner, Odey Asset Management LLP

Kevin Pakenham, Co-founder, Pakenham Partners Ltd

Sir Brian Williamson, Former Chairman, LIFFE

Brian Winterflood, Winterflood Securities


Full list of signatories:


  • Mr Christopher Aldous
  • Mr Andrew Allum
  • Mr David Anderson
  • Robin Archibald
  • Mr Iain Baillie
  • Mr John Barkshire CBE
  • Mr Andrew Barnie
  • Mr Andrew Beeson
  • Mr Nic Bentley
  • Mr Gilbert Bland
  • Mr Richard Boggis-Rolfe
  • Mr Roger Bootle
  • Simon Brewer
  • Mr John Bridges
  • Mr David Buik
  • Mr Dominic Burke
  • Mr Mark Cannon Brookes
  • Mr Julian Cazalet
  • Lord Charles Cecil
  • Mr Peter Chesterfield
  • Professor Moorad Choudhry
  • Mr Andrew Clowes
  • Mr Alegeron Cluff
  • Mr Edward Collins
  • Professor Tim Congdon CBE
  • Mr David Cooper
  • Mr Kevin Cooper
  • Mr Danny Corrigan
  • Dr Peter Cruddas
  • Mr Ben Davies
  • Deputy Alexander Deane
  • Mr William Drake
  • Mr Michael Faber
  • Lord Flight
  • Ms Haruko Fukuda OBE
  • Mr Rupert Gather
  • Mr Michael Geoghegan
  • Mr Richard Gilbert
  • Mr Campbell Gordon
  • Mr Roddy Graham
  • Mr Tim Guinness
  • Mr Rupert Hambro CBE
  • Ms Melanie Hampton
  • Mr Peter Hargreaves CBE
  • Mr Robert Hiscox
  • Mr Michael Hodges
  • Mr Daniel Hodson
  • Mr Sean Howlett
  • Mr Kevin Hughes
  • Mr David Hunter
  • Mr Graham Hutton
  • Mr Charles Inions
  • Mr Adrian Johnson
  • Mr Luke Johnson
  • Mr Nicholas Kirk
  • Mr Michael Langdon
  • Dr Ruth Lea CBE
  • Mr Jonathan Little
  • Mr Paul Marshall
  • Mark Martyrossian
  • Mr John May
  • Mr Steven McKeane
  • Mr Mark McLornan
  • Mr Edgar Miller
  • Mr Christopher Mills
  • Philip Milton
  • Mr Luke Morris
  • Mr Jon Moulton
  • Mr Garth Mulholland
  • Mr Paul Munday
  • Mr Andrew Murison
  • The Lord Grantley
  • Mr John O'Brien
  • Mr Crispin Odey
  • Mr Kevin Pakenham
  • Mr Robin Woodbine Parish
  • Tim Parker
  • Mr Stewart Paterson
  • Mr Richard Patient
  • Mr Simon Pearson-Miles
  • Mr Algernon Percy
  • Mr Michael Petley
  • Mr David Potter
  • Mr David Pusinelli
  • Mr Neil Record
  • Mr David Reid Scott
  • Mr Richard Royden
  • Mr Charles Russam
  • Mr John Sanders
  • Mr Savvas Savouri
  • Mr David Shipley
  • Mr Christian Siegl
  • Cllr David Sismey
  • Mr Hugh Sloane
  • Mr Andrew Smith
  • Mr Michael Stoddart
  • Mr Rhoddy Swire
  • Clive Thorne
  • The Viscount Trenchard
  • Mr Edmund Truell
  • Mr Peter Udale
  • Mr Ian van Stratum
  • Nigel Webber
  • Mr Adam Wethered
  • Mr Mark Wheatley CC
  • Mr Jack Wigglesworth
  • Sir Brian Williamson CBE
  • Mr John Winter
  • Mr Brian Winterflood