The IP formula of a merger
In my current round of discussions with a client, he asked me to formulate not only a legal document but also a mathematical prescription to explain his particular boss the importance of measuring their intellectual assets. I hope it helps a few more who read it here. When two firms come together to form a single entity with special focus on merging their assets and liabilities – a business merger is born. If the two entities are equal (in their non-IP value/worth), mostly, an exchange of stocks will take place. The acquirer will issue new shares to the shareholders of the target firm at a ratio. The target’s shares get replaced by the acquirer’s shares. The combined values of the two firms after the merger should be mathematically equal to their values had they been combined before the merger. Now, since we know that because the ratio of the exchange of shares will not be in harmony (the target’s shareholders are paid premiums) with the value of the firms with respect to each other, the individual values of the firms will be different than their values before the merger. One major spin off which emerge out of a merger, I call the ‘BIPE (The benefit of IP exchange). It is the total of the benefits the new entity gains post merger when the intellectual assets have been combined. Abandoning the other ‘share value effecting’ aspects of such a transaction, lets focus on the BIPE for the purposes of this brief. The pre merger price (in relative values) of the share for all the shareholders will always be equal to the post merger prices, if the following can be equated by putting a certain value for the BIPE –
Post merger value of a share = (combined premerger value + BIPE) / post merger no. of shares = post merger value of shares.
If the firms can’t meet the BIPE value so as to make the equations work, then it is indeed a bad merger.
US Open…takes off
US open is happening. And it is happening 6.5 miles (unerringly) from my house, at Arthur Ashe. I would love to be there. I’d love to be there not only to watch my favorite players in action, but also to see how they manage to deliberate on the game with a plane taking off their heads every ten minutes (La Guardia is next block). I do not have the tickets. Neither am I expecting someone to gift one. The subject matter looks out for an elucidation. Anyone?
Humanitarian marriage
Indian marriage laws have been, for years, carrying the load of what the religious preachers advocated, in one way or the other. Even a Baha’i faith marriage has ceremonious obligations attached. One Act distinguishes itself to a great degree and is one of the most rational piece of law. That is – the Special Marriage Act 1954. It does not only promote inter-religion marriages but also clearly tells apart the legal principles from the so called ethical norms that generally govern the marriage laws in India. This law, without a doubt trashes the Overlap Legal Theory of Blackstone which says that law and moralities (of course, so called) go hand in hand, and which has attracted the Asian legislatures for long. In fact, the Act looks inspired by the approval of Max Weber’s Interactionism by the post-independent Indian society. The Act does not only give a platform to the non-religious to marry without bowing down to the stupid religious rituals but also gives them a formal and an automatic tool to denounce their religion when it says that – The marriage solemnized under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religion shall be deemed to effect his severance from such family. Bravo! Happily live the people who marry this way…or …who at least recognize, appreciate and encourage the way. The rest…nothing to worry…they have their religions to save their sacred knot ..or …knots.
Civil liberties…hmm..good joke.
This date in 1988, The Civil Liberties Act was signed. I consider this legislation to be the one of the most humane the world has seen.
Other than recognizing the wrong done during the World War II on the US citizens and the people of Japanese origin residing permanently in US, it put forward an apology, among other things it stood for. However, it categorically stated that it was intended to: ‘discourage the occurrence of similar injustices and violations of civil liberties in near future’. Many pieces of legislations, inspired by this Act of 1988 were put on paper all over. But what is needed is ‘action’. And India needs a big slice of it. The rise of Thakre, the treatment to Nasrin, the state comatose after 84 and Godhra are a few examples which confirm it has always meant nothing to us. Justice Tarkunde was just joking when he said “I believe in a country of mass poverty and ignorance, like India, humanism must take a radical form. It must be concerned with developing a movement aimed at spreading the humanist-democratic values of freedom, rationalism, and secular morality among the people so that they can take the necessary initiatives for the elimination of poverty and removal of mass ignorance”. Where is the action?
Shame
Hundreds died at Naina Devi. Crazy dash for the deity or a landslide rumor? Undeniably another managerial task gone out of line. Who all believed that the place has wonderful control systems put in place by the state? Who all believed that God lives in the stones? Who all believed that thousands of people gathering on constricted mountainous tracks can never reduce to this fate? I am not sure of the adults who passed away, however I am certain that none of the children who died believed this. As much as, they never would have believed in God, if not for their parents who, for the love of God took them to the exceptionally packed place. We are all in sorrow. But it’s time to also be in shame.
Biotech patents’ new principles
That the state of the art when the legality of the patent comes for examination cannot be used with hindsight in order to correct shortages in the patent at the point when it was filed has stood the test in the courts once again. In Eli Lilly v Human Genome Sciences Inc, Hon’ble Justice Kitchen put down a body of principles which he held the UK courts should address when deciding if or not a given patent possessed industrial applicability. The rundown is lordly and commanding. Here is a copy:
-the court to construe the “indutrial applicability” provision of the Patents Act 1977 so that, so far as possible, it had the same effect as Article 52 of the European Patent Convention (EPC).
-in the context of indutrial applicability, “industry” to be construed broadly. It included all manufacturing, extracting and processing activities of enterprises that were carried out continuously, independently and for commercial gain. “Industry” need not however have been conducted for profit — and a product which was shown to be useful to cure a rare disease could be considered capable of industrial application even if it had never been intended for use in trade at all.
- the skilled person had to be able to derive an invention’s industrial application from its description in the patent, read with the benefit of common general knowledge. Accordingly that description had to disclose a practical way of exploiting the invention in at least one field of industrial activity. This requirement had recently been re-formulated as an enquiry as to whether there was a sound and concrete basis for recognising that the contribution was (or was not) capable of leading to practical application in industry. Even so, it was still necessary to disclose, in definite technical terms, the purpose of the invention and the manner in which it was to be used to solve the given technical problem.
- there also had to be a real prospect of exploitation of the invention that could be derived directly from the specification, if it was not already obvious from the nature of the invention or the background art. This requirement could not be satisfied it what was described was merely an interesting research result that could yield an as-yet unidentified industrial application.
-the purpose of granting a patent was not to reserve an unexplored field of research for the applicant — nor was it to give the patentee unjustified control over others who were actively investigating in that area and who might eventually have found ways actually to exploit it.
-if a substance was disclosed and its function was essential for human health, its identification as having that function immediately suggested a practical application — but if its function was not known, or was incompletely understood, and no disease had been identified that was attributable to an excess or deficiency of it, and no other practical use was suggested for it, the requirement of industrial applicability was not satisfied.
-the use of a claimed invention in order to discover more about its own properties was not of itself an industrial application for the purposes of patentabiity.
-appliying all of these principles, HGS’s patent — however meritorious its discovery might have been — was invalid for lack of industrial applicability.
Where do they go?
A few of us know Indian governmental hospitals. And fewer know how they work. What we doubtlessly don’t know is where the majority of the patients go when they have been released before they are well enough to take care of themselves, for they have a house to go… is not certain. Shelters in India – they don’t exist. A latest L.A ordinance makes it an offense for hospitals to transfer a patient to anywhere other than his or her home without a sanction in black and white. The whole world needs this law. India needs this without delay. We don’t want sick on our roads. We want them under roofs and that too within law.
Corn and charred oaks
Alcohol history owes Evan Williams a squarer jiggle. In the allegorical dine tables where the posh cerebral suits decide what is and what isn’t a first-water whiskey, it always gets this thwack: It is not a scotch. Though the bourbon harmlessly beams at you with a youth’s blissful jollity, the two of them will want you to hum your favorite song, watch your pet movie, or suchlike. Even a three or four of them will not send your tongue and brains working separately of each other. Try it. Like a rich single malt, it has its own smack.
좋은 날
I am a poor food explorer and a worse food researcher. So when one of my clients mentioned that he wanted to taste some Korean food, my mind could not dig up any restaurant names. My office block on Broadway and 32nd is believed to be the Mecca of Korean food. So, off we went, down for lunch. I took him to a fine-looking place right next to my building. No sooner did we place our order of Dak-gui, ( my brain had an option of either remembering the restaurant’s name or the dishes’- it chose the latter), a sort of charred chicken, and Saengsoeun gui, a kind of grilled fish, we were presented with an enormous range of complimentary hors d’oeuvres. There were pickles, pickly vegetables, vegetable pickles and the likes. Then there was some soup, which was tasty but was deceiving – could’nt tell the ribs from the intestines. In the end came some cinnamon syrup to freshen up our breath. Ok, the overall experience was good but it will take some time for me to forget the face of our waitress who knew that we knew nothing about what we had been doing there. I am not sure if everything that we ate from the table was for eating. I am not sure if we ate the right way or even that we had the right drink at the right hour – the dong dong ju, which ding-donged us. But I am sure I saw the waitress and the server boyfriend (it’s an assumption but I am an expert at this) smirk whenever their eyes met after meeting mine. We had good food. They had good fun. Everyone went home happy.
Pollute but sign
India, China and a few other developing nations cold-shouldered the G-8 Summit. The post-Kyoto showdown stands shatterproof. After the Hokkaido summit, this was a big opening. Except, we didn’t even inched. There seems only one leeway now – make a legal agreement without obligatory emission objectives. Besides?
