Mondaq Business Briefing articles from October 2004

Mondaq Business Briefing archives from October 2004

Commercial Litigation NetLetter- 30 September 2004.
October 1, 2004... HIGHLIGHTS A plaintiff may not maintain an action seeking damages for actual bias on the part of members of a hearing panel where the plaintiff waived its right to complain by failing to allege actual bias before the panel itself....

Parliamentary Democracy.(Brief Article)
October 1, 2004... The Bahamas celebrates 275 years of Parliamentary Democracy this week, the first meeting of Parliament (General Assembly) having taken place on 29th September 1729. The Parliament of the Bahamas is bicameral, with an appointed Senate and...

A Brush is a Brush is a Brush...
October 1, 2004... The U.S. Court of Appeals for the Federal Circuit affirmed the obviousness rejection of a patent application ruling that patent claims directed to a "hairbrush" would have been obvious in view of a prior art hairbrush reference considered in...

OSHA Interpretation Regarding Commercially Sold Medical Kits.(Occupational Safety and Health Administration)
October 1, 2004... The Occupational Safety and Health Administration (OSHA) has interpreted its Bloodborne Pathogens Standard, 29 C.F.R. s. 1910.1030, to require employers to supplement a medical device kit containing a sharp lacking engineered protection with a...

Foreign Sales May Enable an Otherwise Non-Enabling Publication.
October 1, 2004... In a matter of first impression, the U.S. Court of Appeals for the Federal Circuit recently held that evidence of the foreign sale of a claimed reproducible plant selection may enable an otherwise non-enabled printed publication disclosing that...

Corporate Commercial and Litigation Bulletin - Challenges in Distribution: Terminating Dealers and Distributors.
October 1, 2004... Do you have dealers or distributors who are underperforming or who are not complying with your distributor agreement? Do you wish to change distribution for other reasons? If you do, and if you are considering terminating a dealer or...

Bankruptcy Legislation Reform.
October 1, 2004... An extensive general bankruptcy legislation reform will be implemented in Finland, which will repeal the established Bankruptcy of Act 1868. The new Bankruptcy Act (hereafter BA of 2004) will come into force on 1 September 2004. Also several...

Share Schemes - Transfer Pricing and Share Plans.
October 1, 2004... Originally published September 2004 The Finance Act 2004 extended the scope of the transfer pricing rules to transactions between UK group companies. Transfer pricing can now apply where there is no overseas involvement. This and subtle...

Proposed Amendments to the Federal Rules of Civil Procedure to Address Electronic Documents and Discovery and Other E-Discovery Developments in 2004.
October 1, 2004... Over the past several years, the Discovery Subcommittee of the Advisory Committee on Civil Rules of the U.S. Judicial Conference has been studying the impact of "electronic discovery" on litigation, as well as the adequacy of the current rules...

New Denied Boarding Regulation: The Fight Moves To Europe.
October 1, 2004... IATA and the European Low Fares Airline Association (ELFAA) have successfully negotiated round 1 in their attempt to challenge the validity of EU Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the...

Airport Service Providers Beware - The Changing Ground Handling Regime.
October 1, 2004... IATA have produced their 2004 Standard ground Handling Agreement ("SGHA") to replace the 2003 Edition and work is already underway to introduce a new edition in 2007/8. We report on the significant changes to Article 8 (liability and indemnity)...

Aerospace Regulation: Future of Financial Protection.
October 1, 2004... In July 2004, the UK Civil Aviation Authority published its advice to HM Government following a year-long consultation process relating to financial protection of air travellers and package holidaymakers. (We reported on this consultation in...

The ADA's Internal Conflict Disorder.(Americans with Disabilities Act of 1990)
October 1, 2004... Introduction The ADA prohibits employers from discriminating against individuals with disabilities. Yet, the law also makes it more difficult for us to reach out and help employees with performance problems where we suspect that the...

Distance Selling Deadline Looms for Financial Services Sector.
October 1, 2004... 15 September 2004 - Law firm Pinsents is warning businesses which market financial services to consumers that they should be geared up for the new EU laws on distance marketing. The Distance Marketing of Consumer Financial Services...

Pensions Directive - Cross-Border Aspects.
October 1, 2004... This article deals with the impact of the Pensions Directive on UK schemes with cross-border aspects. Focus on UK schemes Member states have until 23 September 2005 in which to implement the Pensions Directive into their local laws....

Nevis Financial Services Development And Marketing Department Newsletter - September - October 2004.
October 1, 2004... Financial Services Sector UpdateStaff Changes Effective September 30th 2004, Dr. Agatha Jeffers-Gooden resigned as Director of the Nevis Financial Services Development and Marketing Department. The new contact person at the Department will...

Swiss Banking Secrecy.(Swiss Finance Ministry survey)(Brief Article)
October 4, 2004... A recent survey by the Swiss Finance Ministry has found that 51 per cent of those questioned favour maintaining banking secrecy in its present form, compared with 57 per cent a year ago. Reportedly, almost a third of the 1,516 people...

New USPTO Equation, Length of Time + Expertise of Target Audience + Copying = Printed Publication?
October 4, 2004... The U.S. Court of Appeals for the Federal Circuit recently held that a slide show that was printed and then displayed on a poster board for approximately three days at a meeting of chemists and at a university was a "printed publication" under...

Patentee Must Present Evidence of Doctrine of Equivalents.
October 4, 2004... Addressing whether a failure to present evidence of doctrine of equivalents would compel a new trial in light of a district court's post-trial modifications to its claim construction, the U.S. Court of Appeals for the Federal Circuit held that...

Substantial Evidence Basis For Reinstating Jury Verdict.
October 4, 2004... The U.S. Court of Appeals for the Federal Circuit recently reversed a Judgment as a Matter of Law (JMOL) order and reinstated the jury verdict in a case involving a battle of experts on the issue of validity during the trial. Cardiac...

The Beauty of Those Three Little Words: "No, Thank You".
October 4, 2004... By Tamara Kolz (Boston)Originally published Fall 2004 A disclaimer is a tool that can help meet the changing needs and objectives of families. Disclaimers have been in favor for centuries. Historically, the purpose of a disclaimer was...

Sherlock Holmes: The Invisible Asset in Corporate Finance Deals.
October 4, 2004... Detective work used to be restricted to eccentrics based in Baker Street or to the local CID. Today, a forensic investigation approach is increasingly used when businesses change hands, not because companies are typically out to defraud, but...

Charitable Trusts Allow You to Be a Benefactor and Take Care of Your Family.
October 4, 2004... By Nichole Denise Fitzgerald (Miami) Originally published Fall 2004 Achieve your own financial and tax planning objectives through generosity. According to a recent survey conducted by the Brookings Institution, donor confidence...

Ohio Franchise Tax Investment Credit Declared Unconstitutional.
October 4, 2004... The United States Court of Appeals for the Sixth Circuit found the franchise tax credit granted by R.C. 5733.33(B)(1) unconstitutional because it violated the Commerce Clause of the United States Constitution, Art. I, s. 8, cl. 3. At the same...

Confirming the Written-Description Requirement as a Separate Test of Validity.(Reprint)
October 5, 2004... Reprinted with permission from the IP Litigator, July/August 2004 Published by Aspen Law & Business Under the 1952 Patent Act, every patent specification must "contain a written description of the invention, and of the manner and...

Intellectual Property Strategies for the Software Seller.(Reprint)
October 5, 2004... Originally published September 30, 2004 Article by Robert J. Crohan (Providence) For many software companies, intellectual property just happens. Programmers write code. Sales staff find customers. Executives book revenues. The company...

Structured Settlements - the Tax and Planning Considerations for Injured and Disabled Clients.(Reprint)
October 5, 2004... By David J. Correira (Providence), Joshua Husbands (Portland), J. Alan Jensen (Portland) and Sandra G. Sheets (Lakeland) Originally published Fall 2004 Engage a special needs planning expert early to preserve eligibility for government...

Broadcasting in the Crosshairs.
October 5, 2004... Originally published 3rd Quarter 2004 Article by Charles R. Naftalin (Washington, D.C.) During the past year or so, federal regulators and legislators have subjected the broadcast industry to unprecedented threats of punishment. This...

United Kingdom: The Importance of having an Intellectual Property Business Strategy: A Tale of Two Beers.
October 5, 2004... In South Bohemia (Czech Republic) there is a town called Ceske Budejovice - Budweis in German. This town is situated near the Austrian and German borders and is well known as Budweis in both neighbouring countries because of the lager which has...

The Paris Court of First Instance to Decide Important Cases on Trademark Parody.(Reprint)
October 5, 2004... By Emmanuel Baud and Sandra Strittmatter (Paris) Originally published October 3, 2004 The Paris Court of First Instance recently rendered two decisions in similar cases involving the non-profit organization Greenpeace and the petroleum...

Enjoining The Competing Ex-Employee: Another Arrow for the Employer's Quiver.
October 5, 2004... You know the scenario all too well. Years ago, your valued, long-suffering employee signed a covenant not to compete and a non-disclosure agreement at the same time he signed up for dental benefits through the company's carrier. Years later,...

IRS Provides Tax Relief For Storm Victims.(Internal Revenue Service, Florida)
October 5, 2004... Question: Is there any federal tax relief available to victims of the recent hurricanes? Answer: The Internal Revenue Service recently announced special tax relief for Florida taxpayers in designated areas that were struck by Hurricane...

The Orlando Sentinel, Fla., Idea Bank Column.(Florida Department of State initiates electronic procedure for filing of annual reports)
October 5, 2004... STATE NO LONGER MAILS ANNUAL-REPORT FORM: QUESTION: What options are available for filing my Florida Uniform Business Report (annual report), and why wouldn't I have received it yet for 2004? ANSWER: The Florida Department of State has made...

Bahamas Assists Cayman Institutions.(Brief Article)
October 5, 2004... The Bahamas has moved quickly to provide disaster relief services to financial institutions in the Cayman Islands affected by Hurricane Ivan. Cayman licensed institutions are being allowed to establish operations on a temporary basis in The...

Entire Market Value Analysis Means The Juice And Dispenser.
October 5, 2004... Addressing whether the entire market value rule permits recovery of lost profits on unpatented components sold with a patented item, the U.S. Court of Appeal for the Federal Circuit reversed the district court's exclusion of evidence of lost...

The Standard of Review For Inventorship Claims.(Brief Article)
October 5, 2004... The U.S. Court of Appeals for the Federal Circuit granted a rehearing of its recent decision in Linear Technology Corp. v. Impala Linear Corp., et al., for the limited purpose of correcting the Court's reporting of the district court's decision...

Hotel Costs Near Place Of Work A Business Expense - Supreme Tax Court.(Germany)
October 5, 2004... The Supreme Tax Court has held that the hotel costs of an employee for occasional overnight stays near the place of work rank as business expenses. This reverses the position taken in earlier cases. The case was brought by an air hostess...

Supreme Tax Courts Allows Estimated Assessment To Employee Withholding Tax.(Brief Article)
October 5, 2004... The Supreme Tax Court has upheld the tax office' right to raise an estimated assessment on an employer for the "wages" withholding tax which he failed to deduct or account for. In so doing, the Court rejected the argument of the employer that...

All Trade Tax Assessments To Be Issued As Provisional - Finance Ministry.(Brief Article)
October 5, 2004... The ministry of finance has decreed that all trade tax assessments (notices of chargeable trading income) should be issued subject to the outcome of cases currently pending before the Supreme Tax Court and the Constitutional Court on the...

Sustainable Development Considerations for U.S. Companies Originally published September 2004.
October 5, 2004... By Christopher P. Davis and Aladdine D. Joroff Companies are increasingly facing the difficult decision of whether and how to incorporate sustainable development into their business practices. Ever since the concept of sustainable...

Pillsbury Winthrop's Orange County Office Welcomes Tax Attorney; Eric Overman's Practice Focuses on High Stakes Asset Finance.
October 5, 2004... Pillsbury Winthrop's Orange County Office Welcomes Tax Attorney Eric Overman's Practice Focuses on High Stakes Asset Finance Costa Mesa, Calif.--- Pillsbury Winthrop LLP is pleased to announce that Eric M. Overman, of counsel, has...

Anti-counterfeiting in the Republic of Ecuador.
October 5, 2004... Originally published August 2004 BACKGROUND Despite the existence of national and Andean Community legislation protecting intellectual property rights as well as the adhesion by Ecuador to key international conventions on intellectual...

Changing the Parties to Proceedings Following the Expiry of a Limitation Period.(Reprint)
October 5, 2004... Originally published August 2004 In a recent decision1, the Court of Appeal has determined that, under certain circumstances, proceedings may be amended to change the identity of parties following the expiry of a statutory limitation...

Return to Old Law on Book Debts.(Spectrum Plus Limited )
October 5, 2004... On 26 May, the Court of Appeal in National Westminster Bank v Spectrum Plus Limited overturned a 2001 Privy Council ruling in the Brumark Investments case, thereby giving banks increased access to the book debts of insolvent companies. Book...

IP Enforcement Litigation In Taiwan: Some Basics.
October 5, 2004... I. Introduction Rights holders looking at Asia-Pacific enforcement budgets often have to make hard decisions about where to take action. Although Taiwan's population is small (about 22 million), it has a big role in financing massive...

Enforcing Foreign Court Judgments In Taiwan.
October 5, 2004... I. Introduction With an increasing number of cases being brought against Taiwan companies, it's important to consider how to make that future judgment worth something. With Taiwan's relatively unique diplomatic isolation, it can be often...

Fair Use and Bad Faith Are Not Mutually Exclusive According to the Second Circuit.(The Ross Institute)(NXIVM Corp)
October 5, 2004... The "fair use doctrine," articulated in 17 U.S.C. s. 107, embodies the idea that persons should be free to use portions of copyrighted works for the purposes of comment, criticism, news reporting, teaching, scholarship, research and other...

Federal Circuit Clarifies Patent Term Extension Law.
October 5, 2004... The Hatch-Waxman's patent term extension provision, part of the Hatch-Waxman Act's carefully negotiated set of compromises, increased the patent protection available to certain pharmaceutical products. The general legislative goal was to...

European Union Threatens to Surpass The United States in Regulation of Internet Commerce.(Reprint)
October 6, 2004... Article by Vito A. Costanzo (Los Angeles) Originally published September 30, 2004 The United Nations is not the only forum where Europeans have sought to challenge the United States. With its recent expansion that added 10 new member...

Licensee Not Required to Share Benefits From Foreign Tax Credit.(Reprint)
October 6, 2004... Article by Michael J. Student (New York) Originally published September 30, 2004 Negotiating and documenting commercial arrangements presents the parties and their counsel with a variety of challenges. The ultimate goal is to have an...

The Pleasures, Perils and Persnickety Rules for Owning Your Own Airplane or Participating in a Time-Sharing Arrangement.(Reprint)
October 6, 2004... By Louise B. Cobbs (Washington, D.C.) Originally published Fall 2004 Family business-owned aircraft fall under strict FAA rules. You've arrived. Your business is doing well, and it's time to make things a little easier on yourself....

OCC Rules Unclaimed Property Laws Generally Not Preempted.(Office of the Comptroller of the Currency)
October 6, 2004... The OCC issued an interpretive letter ("Letter 1006") ruling that its recent preemption and visitorial powers regulations (see the January 13, 2004 Alert) did not change the previous standards regarding the applicability of state escheat and...

FDA Issues Final Rule Regarding Administrative Detention of Food.(Food & Drug Administration)
October 6, 2004... In the aftermath of September 11, 2001, Americans recognized the need to protect the nation's food supply from bioterrorist attacks. Last year, news reports indicated that Al Qaeda operatives had the ability to manufacture Salmonella and...

A Difficult Environment.
October 6, 2004... Aidan Thomson, a partner in our Environment Group, examines recent environmental developments that will have an impact on the aviation industry. The aviation industry is no stranger to the increasing demands of environmental law. In the...

Martha Graham Was a Work-For-Hire Author of Dance Choreographer.(Martha Graham School and Dance Foundation, Inc., et al. v. Martha Graham Center of Contemporary Dance, Inc., et al.)(Excerpt)
October 6, 2004... The U.S. Court of Appeals for the Second Circuit has ruled that the work-for-hire doctrine applied to determine the ownership of copyrights in dances choreographed by the late Martha Graham, the founder of modern dance. Martha Graham School and...

No Disparagement Required to Allege Claim of False Advertising.(LaSalle Hotel Operating Partnership, L.P)
October 6, 2004... The U.S. Court of Appeals for the Second Circuit recently held that a claim for false advertising under the Lanham Act does not need to plead disparagement to survive a Rule 12(b)(6) motion for dismissal. Societe Des Hotels Meridien v. LaSalle...

Ex Parte Seizures - A Heavier Burden For The Victim.
October 6, 2004... The U.S. Court of Appeals for the Third Circuit, affirmed the decision of the district court, refusing to issue an ex parte seizure order of counterfeit goods, finding that the trademark owner did not provide sufficient evidence that an ex...

The Secrecy of Safety.
October 6, 2004... Bringing criminal charges into aviation occurrences resulting from inadvertent operational errors may hinder the development and free exchange of safety information which is essential to improve aviation safety, with a potential adverse effect...

DVT Update: Air Carriers Winning the Argument on Failure to Warn.(Deep Venous (Vein) Thrombosis )
October 6, 2004... Despite concerns as to the possible ramifications for DVT claims of the US Supreme Court's judgment in Husain v Olympic Airlines, DVT decisions around the globe are currently going in favour of the airlines in finding no cause of action based...

Communications Law Bulletin - September 2004.
October 6, 2004... The Month In Brief Although the run-up to a national election rarely brings bold legislative or regulatory initiatives, there is much to report in this September issue of our Bulletin. Notably, the Federal Communications Commission ("FCC"...

Pension Plan Expenses - Recent Developments.(Reprint)
October 6, 2004... This article was originally published in Blakes Bulletin on Pension & Employee Benefits-August 2004 As most employers will know, administering a pension plan can be a costly undertaking. Costs arise as a result of many activities...

Seminar - Outsourcing Fund Management Administration.
October 6, 2004... Outsourcing is the topic of conversation everywhere - and the world of fund management is no exception. Fund Managers are looking to outsource to reduce operational risk, to focus on supporting the business more effectively and to reduce costs....

Using IT to Master Complexity.(Information Technology)
October 6, 2004... Manufacturers' supply chains are growing enormously complex. With shorter product life cycles and ever-rising customer demands, as well as the increasing spread of distribution, manufacturing, sourcing, and engineering operations around the...

The backbone of a better business - IT integration across Europe.(Deloitte)
October 6, 2004... IT integration is not a luxury. Growth by acquisition has resulted in a mass of disparate systems for many major manufacturers. The situation is usually manageable when member companies operate autonomously. When, however, the group wants to...

A new perspective on Lean - Widening the scope of lean techniques.(Mastering Complexity in Global Manufacturing: Powering Profits and Growth through Value Chain Synchronization)
October 6, 2004... Insights from the recent Deloitte global manufacturing benchmarking initiative, entitled "Mastering Complexity in Global Manufacturing: Powering Profits and Growth through Value Chain Synchronization" reveal: The vast majority of...

Memorandum About Derivatives In Turkey In Legal Terms.
October 7, 2004... INDEX I. SUBJECT II. LEGAL GROUNDS / APPLICABLE LAWS AND REGULATIONS 1. Turkish Code of Obligations 2. Council of Ministers Decree Regarding Protection of Value of Turkish Currency 3. Compliance With ISDA Regulations ...

A Revised Construction Law For China.(Ministry of Construction)
October 7, 2004... On August 27, 2004, the People's Republic of China ("PRC" or "China") Ministry of Construction ("MOC") issued a letter soliciting comments on a draft of a revised Construction Law. The MOC has been reviewing the Construction Law for some time,...

SEC Proposes Hedge Fund Adviser Registration Rule.(Securities and Exchange Commission)
October 7, 2004... On July 20, 2004, the U.S. Securities and Exchange Commission (the "SEC") proposed new and amended rules and forms (the "Proposal") that would require advisers to certain private investment pools ("hedge funds") to register with the SEC under...

Beijing Court Awards First Compensation For Breach of Agreement For Sale And Purchase of Private Housing.
October 7, 2004... In June 2003, the Supreme People's Court issued a new Judicial Interpretation regarding the law on contractual disputes over the sale and purchase of private housing in the PRC. It covers a wide spectrum of issues, including the validity of...

Statutory Disciplinary and Grievance Procedures - What's All The Fuss About?
October 7, 2004... By Richard T. Martin, Martin Piers, Nicola whiteley, Mandy Perry, Leigh J. Warden and Catherine Connor The Employment Act 2002 ("EA") established a framework for promoting the resolution of employment disputes in the workplace via...

Leasehold Finance: A Powerful Tool.
October 7, 2004... By Daniel M. Pomerantz (Chicago) Originally published Fall 2004 Part I of a Two-part Series Leasehold mortgages have traditionally secured ground leases, but can also secure space leases of all types, and can add value to...

Hotel Costs Near Place Of Work A Business Expense - Supreme Tax Court.
October 7, 2004... The Supreme Tax Court has held that the hotel costs of an employee for occasional overnight stays near the place of work rank as business expenses. This reverses the position taken in earlier cases. The case was brought by an air hostess...

Real Estate Contracts Today.
October 7, 2004... By Nelson Migdal (Washington D.C.) A version of this article first appeared in Real Estate Forum magazine earlier this year. Pick up almost any real estate related trade periodical and you will read about potential...

HSR Violations Result in Civil Penalties: HSR Investment Only Exemption Continues to be Narrowly Construed.(Hart-Scott-Rodino Antitrust Improvements Act of 1976)
October 7, 2004... Introduction May 2004 brought the announcement of two settlements of alleged failures to comply with the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. [bar]18a) (.the Act.). Under the Act, certain acquisitions of assets...

Enjoining The Competing Ex-Employee:.
October 7, 2004... Article by Roxane Sokolove Marenberg and Jerold Schneider You know the scenario all too well. Years ago, your valued, long-suffering employee signed a covenant not to compete and a non-disclosure agreement at the same time he signed up for...

Sales Multiplication.(sales department, marketing department relationship)
October 7, 2004... One plus one equals a whole lot more than two when sales and marketing work together. In too many organizations sales and marketing don't even talk to each other. What a shame and a waste. Cooperation benefits both groups and also increases...

Supreme Court - Write Down of Loan to Shareholder is not a Hidden Distribution.
October 7, 2004... Article by Silke Imig The Supreme Ttax Court decided that the write-down of a loan to a shareholder does not constitute a hidden distribution as the anticipated loss of the loan asset has not yet been realised. A GmbH provided a loan...

Rules Consolidated For Board Of Appeals And Interferences.(Patent and Trademark Office)
October 7, 2004... Effective September 13, 2004, the U.S. Patent and Trademark Office (USPTO) consolidated most of the rules affecting appeals and interferences under new section 41 of 37 C.F.R. and also modified aspects of the appeals and interference practice....

Controversial Weldon Amendment Has Negligible Impact on Issuance of Claims to Methods For Human Cloning.(Dave Weldon)
October 7, 2004... On January 23, 2004, President George W. Bush signed into law appropriations omnibus bill H.R. 2673 authorizing 2004 funding of the federal government including the United States Patent and Trademark Office (USPTO). The bill contained a hotly...

German Tax Authorities Release Final Decree on the Allocation of Capital to Branch Banks.(German Ministry of Finance)
October 7, 2004... Article by Silke Imig The German Ministry of Finance has published a final version of its decree on the minimum capital to be attributed to branch banks for tax purposes. The German Ministry of Finance has just released the final...

E-Mail Spying May Not Violate the Wiretap Act.
October 8, 2004... Article by Cynthia A. Casby (Los Angeles) Originally published September 30, 2004 The First Circuit Court of Appeals ruled in June, 2004 that it is not a violation of Title I of the Electronic Communications Privacy Act (ECPA),...

Regulatory Issues in Energy.
October 8, 2004... Doing deals in any business sector requires some understanding by principals and their advisors of the regulatory framework. If regulatory approvals are required, what are the time frames for and probabilities of obtaining these? Does the...

Drug Diversion and Counterfeiting: Emerging Role of RFID.(Radio Frequency Identification )
October 8, 2004... Article by Matthew Boyd Van Hook and George Y. Wheeler III (Washington, D.C.) Originally published 3rd Quarter 2004 oThe realities of the wholesale marketplace have combined to create a system in which a large amount of attractively...

Lawmakers Target Internet Spyware as a Consumer Deception and Trademark Infringement Issue.
October 8, 2004... The proliferation of technology that enables monitoring of computer users' actions online and collection of their personal information has given rise to public concerns about protecting individuals' privacy rights. At the center of the debate...