Professional practice valuation & checklist

Valuation of businesses is an art, not a science. This belief is contrary to the trust held by many in numbers alone, eg a valuation multiple or an EBIT figure.

It is commonplace for people to believe things are worth a specific sum, call it $X. One number. $X is what is charged for each grocery item, new car and even residential premises.

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Contract law on consideration

Some years ago I had a case in which the parties each acted without legal representation and never agreed on a specific fee for services provided. The services changed day by day. The hourly rates for fees payable varied.

After disagreement arose between the parties, the service provider became my client. My client had performed the services and its first series of invoices had been paid.

Subsequently the services required of my client had varied greatly. Documentation in the form of a contract with a price schedule had been prepared and discussed but the document remained unsettled, unsigned and under negotiation. The parties fell into dispute.

My client's predicament was that services had been performed, but its second series of invoices were unpaid.

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Need a business exit negotiator?

Recently Dilanchian assisted a booming online software company in a potential sale of business for an eight figure sum.

The project confirmed why we are lawyers and consultants; and underlined the wisdom of calling at your project's concept stage.

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8 errors with NDA templates

Do you ask your lawyer to check over template agreements that you have prepared yourself or obtained online for free or a fee? Unless you're experienced, you should. They may not provide the legal protection you think they do.

Such agreements are often riddled with errors or require customisation, even though you were not told upfront. The gaps and holes leave room for others to enter and take the treasures in your intellectual property castle.

A non-disclosure agreement ("NDA") is often the culprit in these do-it-yourself contract cases.

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Letter of demand professionalism

Writing a good letter of demand involves professionalism in dealing with people and information. There's a method that  can be illustrated with a fee for service contract that has gone wrong.

Assume things have not gone to plan under that contract. The service was delivered but the fee was not paid. The unpaid service provider has made repeated requests. Harsh words have been spoken and tension has arisen.

The two parties should avoid the slippery slope. They should try to work together to overcome issues. They've tried negotiation with no resolution. There's been haggling and even verbal abuse. A lawyer might have been called in earlier, but as usually, hasn't been.

The unpaid party now meets with a lawyer.

Having gone to a lawyer, the unpaid party must communicate a story, collect and supply the evidence, and then help the lawyer examine the facts and evidence. If all this is not done the lawyer should not be forming an opinion and giving advice on what to do next.

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What's your intellectual property strategy?

QUESTION: What are the most effective strategies for commercialisation of a company's ideas, products, R&D and intellectual property? 

ANSWER: "It is the approach that best suits - and is most closely aligned with - the company's overall corporate strategy and the competitive environment in which the company operates."

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IP lawyer puts business process before legal process

To their detriment, too often clients as well as lawyers skim or skip the first and second stage of proposed transactions. When they do this they enter a forest with no clear path to follow.

When they follow the three stage transaction or contracting process they move from casual dating, to going steady, to getting married. It's that simple.

There are three stages for most intellectual property and business law transactions. The first stage is needs assessment. The second, deal points definition. Only after the first and second stage are at least properly considered should anyone go to the third stage - formal contract drafting.

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Copyright duration - life + 70 years

The losing side in yesterday's Men at Work music copyright court case, was found to have copied Kookaburra. This is a song the sheet music of which was published in 1934, that's 77 years ago.

Under section 34 of the Copyright Act 1968 the duration of copyright in literary, dramatic, musical or artistic work lasts for the life of the author and for 70 years after the author's death.

How did Australian copyright law reach this outcome, ie this long duration for copyright works?

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Ribena's Purple Prose Penalty

As the dust settles over the recent “Ribena-gate” controversy and a growing number of unsold Ribena bottles, it is time to evaluate just how to avoid similar fates to the once trusted juice beverage brand.

Ribena-gate began with a blackcurrent juice drink named Ribena, some amazing claims by GlaxoSmithKline about the drink's Vitamin C content, and a couple of enquiring school girls who discovered through a school science lab project that Ribena products had little or no Vitamin C. They informed the manufacturer, GlaxoSmithKline. It took little notice.

It ended with GlaxoSmithKline copping a fine of A$201,000. For GlaxoSmithKline, that court-imposed penalty for its Vitamin C purple prose is most likely to be only the start of its woes with the brand damage yet to be fully realised.

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IP lawyers for creative destruction

As lawyers specialising in intellectual property and business law we're seeing in 2011 a spike of creative destruction at work in the economy, law and in legal practice.

What is the flow of this high level of change, what's fueling it, how can your business respond? This post is a brief enquiry into these questions.

We are asking these questions because economics, technology and business changes take place generally well before law changes in response. Understand the former and you'll be better at anticipating the latter.

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8 ways to increase business valuation

If you are planning to sell a business or major asset what can you do to increase its valuation or perceived value?

Here is a list of eight ideas in no particular order of importance.

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Standard trade mark licence?

A standard trade mark licence does not exist. If what you seek is a short and basic trade mark licence agreement of say two pages length, then yes, we can assist. So can many other IP lawyers and probably even general business lawyers. And it could be prepared for a low fee.

Would you be comfortable with a short and basic trade mark licence agreement? A missing feature can hurt in some eventualities, especially if you are the trade mark owner.

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Patent and trade marks acts to be strengthened

The Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 proposes a wide range of amendments to patent and trade mark law. This article overviews some of them.

Patents Act Amendment

For patents, the aims of the Bill include to raise the quality of patents granted, require greater disclosure of details of the usefulness of inventions, and expand exemptions for non-commercial research of patented inventions.

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Copyright, ISPs and P2P

This is a short note on the Full Federal Court's February 2011 decision in Roadshow Films Pty Limited v iiNet Limited [2011] FCAFC 23.

In this important decision comprising 807 paragraphs with three counsel on each side, the Full Federal Court upheld the first instance decision of February 2010 (Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24).

In both decisions iiNet, an internet service provider ("ISP"), was held to be not liable for any copyright infringing activities of its customers who used BitTorrent, a peer to peer software for sharing digital files.

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Risky business proposals

In business negotiations poorly negotiated deal points are like ill-fitting cogs in a machine. They don't work together well, or at all. As ill-fitting parts are stressed, parts warp and system-wide issues proliferate.

I've had decades of experience in business negotiations and documenting results in contracts. It seems more and more new clients come to us only after taking the risk of agreeing to business deals that can't be documented later in a contract, either easily or at all.

Many trends and business management gaps are causing this risk to grow. We'll focus here on proposal writing as a practical way to minimise or avoid the risk.

Some business deal ideas simply can't be made to work, either commercially or legally.

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