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Federal Taxation of Intellectual Property Transfers
Incisive Media, Pages: 500
CHAPTER 1
Introduction
1.01 In General
1.02 Inventor’s Needs
1.03 Congressional Policy
CHAPTER 2
The Statutory Scheme
2.01 Regular Capital Gains Provisions
2.02 Safe-Harbor Capital Gains Provisions
2.03 Treatment of Losses
2.04 Drafting Suggestions
CHAPTER 3
Basic Patent Law Concepts
3.01 Authority to Issue Letters Patent
3.02 Statutory Bars
3.03 Non-Obviousness
3.04 Negative Rules of Patentability
3.05 The Patent Application
3.06 Patent Infringement
3.07 Patent Rights and Transfer Rules
3.08 Title
[1] Nature
[2] Transfers: Assignment v. License
3.09 Assignments
[1] Nature and Requirements
[2] Form and Recording
3.10 Licenses
[1] Nature and Requirements
[2] Shop Rights
3.11 Royalties
CHAPTER 4
Regular Capital Gains Sections
4.01 In General
4.02 Capital Asset Status
4.03 Qualification as “Property”: Patents
4.04 Compensation for Services
4.05 Ancillary Services and Intangibles
4.06 Inventory-Type Property
4.07 “Trade or Business Property”
4.08 Holding Period
4.09 Improvements
CHAPTER 5
The “Sale” Requirement: Major Factors
5.01 Introduction
5.02 Assignment v. License
5.03 The “Substantial Rights” Standard
5.04 Duration
5.05 Mode of Payment
5.06 Fragmentation of Patent Rights
5.07 Geographic Limitations
5.08 Field-of-Use Limitations
5.09 Less Than All Claims Transferred
5.10 Prior Transfers
5.11 Undivided Interests
5.12 Charitable Contributions
CHAPTER 6
The “Sale” Requirement: Other Factors
6.01 Construction of Agreement
6.02 Terminology and Form
6.03 Legal Title or Security Interest
6.04 Payment Terms
6.05 Termination by Transferor
[1] At Will
[2] On Default
6.06 Best Efforts Requirement
6.07 Restrictions on Assignment
6.08 Restrictions on Sublicensing
6.09 Participation in Infringement Litigation
[1] Bringing Actions
[2] Defending Actions
6.10 Termination by Transferee
6.11 Licenses-Back
6.12 Miscellaneous Rights
CHAPTER 7
The “Sale” Requirement: The Rogue Doctrines
7.01 Introduction
7.02 Controlling Interest in Transfer Negates Sale
7.03 “Pig Theory” Negates Sale
[1] Introduction
[2] Aggregate of Retained Rights
[3] Total Factual Complex
7.04 Operational Control of Transferee’s Business
CHAPTER 8
Trade Secret and Know-How Transfers
8.01 Introduction
8.02 Definitions: Trade Secret and Know-How
[1] Trade Secret
[2] Know-How
8.03 Capital Asset Status: Not Services
8.04 Capital Asset Status: “Property”
8.05 Capital Asset Status: Secrecy
8.06 Capital Asset Status: Novelty
8.07 Know-How: Non-Secret Information Incidental to Transfers of Other Property
8.08 Know-How: Non-Secret, Non-Incidental Information
8.09 The “Sale” Requirement
CHAPTER 8A
Trademark, Service Mark, Trade Name, and Franchise Transfers
8A.01 Introduction
8A.02 Definitions: Trademark, Service Mark, Trade Name, Franchise
8A.03 Section 1253: In General
8A.04 Section 1253: Contingent Payments Received by Transferor
8A.05 Section 1253: Significant Power, Right, or Continuing Interest
8A.06 Deductibility of Contingent and Fixed-Sum Payments Made by the Transferee
[1] General
[2] Contingent Payments and Contingent Serial Payments
[3] Other Payments for Section 1253 Transfers
[4] Pre-1993 Law: Fixed-Sum Payments for Section 1253(a) Licenses
[5] Pre-1993 Law: Contingent Nonserial Payments and Fixed-Sum Sale or Exchange Payments
8A.07 Trademark Rights: Transfers Outside the Scope of Section 1253 and Subject to the Regular Capital Gains Provisions
CHAPTER 8B
Copyrights and Similar Property
8B.01 Introduction
8B.02 Copyright Concepts and Definitions
8B.03 Copyrights, Literary, Musical, Artistic Compositions, and Similar Property
8B.04 Letters, Memoranda and Similar Property
8B.05 “Creator” Status
8B.06 Carryover Basis Property
CHAPTER 9
Safe Harbor Capital Gains Section
9.01 Introduction
9.02 Patentability
9.03 Holder: Inventor
9.04 Holder: Financial Backer
9.05 Holder: Entities, Employers and Related Persons
9.06 Method of Transfer
9.07 The “All Substantial Rights to a Patent” Standard
9.08 Patent Fragmentation Prohibited
[1] Introduction
[2] Field-of-Use
[3] Geographical Area
[4] Claims
[5] Prior Transfers
9.09 Allowable Retained Rights
9.10 Undivided Interests
9.11 Disqualified Transferees
9.12 Employers as Transferees
9.13 Exclusiveness for Holders
9.14 Relation to Other Tax Provisions
CHAPTER 10
Ancillary Matters
10.01 Incidence of Taxation: Introduction
10.02 Incidence of Taxation on Transferee: Transfers of the Royalty Contract
10.03 Incidence of Taxation on Transferee: Transfer of the Income from the Royalty Contract
10.04 Incidence of Taxation on Transferee: Transferor’s Retention of Control over the Obligor
10.05 Character of Income to Transferee
10.06 Exceptions to Capital Gains Treatment: Imputed Interest
10.07 Exceptions to Capital Gains Treatment: Transfer to Certain Related Taxpayers
10.08 Amortization by the Transferee of License Payments
Appendices
Table of Cases
Index
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