LAWYER MONTHLY©2024 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Jonathan Russell Empowering Accident Victims: Insights into Personal Injury Law Maître Nathanaël Romus Navigating French Real Estate: Trust, Transparency, and Tradition 28 8 NOVEMBER 2024 Welcome to this month’s edition of Lawyer Monthly, where we highlight top legal experts across diverse practice areas. Our cover story features Maître Nathanaël Romus, who shares crucial advice for foreign buyers navigating the French real estate market. From understanding property taxes to the essential role of the Notaire, he provides strategies to manage costs and ensure legal compliance. We also gain insights from Mathys & Squire’s Martin MacLean and Rebecca Tew on trademark and patent management. They explore effective ways to protect intellectual property in biotech and beyond, emphasizing the importance of proactive IP strategies. Jonathan J. Russell, an experienced personal injury attorney, offers practical guidance on navigating negligence claims and advocating for accident victims. His expertise sheds light on working with insurance companies and safeguarding legal rights. In addition to these features, we bring you articles that cover a wide range of legal topics to keep you informed and inspired. Thank you for joining us, and enjoy this edition. Happy reading! Warm regards, Mark Palmer Editor, Lawyer Monthly
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS AN INTERVIEW WITH... 8. Maître Nathanaël Romus Navigating French Real Estate: Trust, Transparency, and Tradition 18. Mathys & Squire Expert Strategies for Trademark and Patent Management in Biotech and Beyond 28. Jonathan Russell Empowering Accident Victims: Insights into Personal Injury Law 32. Executive Law Group Navigating Executive Transitions: Legal Insights for Senior Leaders 36. Ian Bryan Unlocking Opportunities: How the Unitary Patent System Benefits Life Sciences SMEs 42. Michael Weinstein Unlocking Justice: Michael Weinstein on Insurance Coverage and Policyholder Rights 46. Rodrigo Márquez Romero Navigating U.S.-Mexico Cross-Border Transactions 50. Sylvie Gallage-Alwis Exploring Product Liability in France: Key Insights and Strategies 56. Tatiana Svetlova Mastering the Complexities of Real Estate Law 60. C. Constantin Poindexter Bridging Legal Worlds 4. JPMorgan Chase Sues Customers for $662K in TikTok Check Fraud Scheme 5. American Airlines Hit with $50 Million Fine Over Treatment of Disabled Passengers 6. Ticketmaster Class Action Lawsuit: Negligence in Major Data Breach - NEWS - TRANSACTIONS 66. AMMG Group’s Acquisition of T.S.F. Metalúrgica de Precisão, Lda. 67. Midea Group’s HK$26.97 Billion Share Offering in Hong Kong 68. NJJ Holding’s Acquisition of Datagroup-Volia 69. RAJA’s Acquisition of the RETIF Group 70. SPE Capital, EBRD, TCV and BII’s Acquisition of Tamweely 71. The Sale of Yara Cote d’Ivoire to the ETG Group 72. Efectis Group’s Capital Reorganisation 73. Fisker’s Restructuring and Insolvency
4 LAWYER MONTHLY NOVEMBER 2024 JPMorgan Chase is pursuing legal action against clients involved in a widespread check fraud scheme that gained traction through viral TikTok videos. These customers, accused of fraudulent ATM withdrawals, may soon face substantial financial repercussions as the bank seeks repayment of nearly $662,000. JPMorgan Chase Sues Customers for $662K in TikTok Check Fraud Scheme How the Scheme Operated The alleged fraud involved customers issuing checks to themselves and withdrawing funds before the checks could bounce. Typically, banks allow access to a portion of deposited checks prior to clearing. However, a temporary error enabled these clients to withdraw larger amounts than usual before the checks processed. Chase has filed lawsuits in three federal courts against four customers over this issue. Key Case in Houston One significant lawsuit, filed in Houston, involves a “masked man” who reportedly deposited a $335,000 check into a defendant’s account. This individual has the highest outstanding balance among the cases, totaling $291,000. In each situation, Chase reached out to the defendants for payment of overdrafts and associated fees, but the bank claims these requests have been ignored, breaching the deposit agreement required upon account opening. Financial Consequences and Legal Action JPMorgan Chase is seeking the return of unlawfully accessed funds and demanding that defendants cover the bank’s legal fees and related expenses. Additionally, lawsuits have been initiated in federal courts in Florida and California. “Fraud is a crime that affects everyone and erodes trust in the banking system,” stated Drew Pusateri, a Chase spokesperson. He highlighted the bank’s collaboration with law enforcement to address fraud and mentioned that Chase is open to pursuing further action against other potential fraudsters. As the largest bank in the U.S., with approximately $3.5 trillion in assets, JPMorgan Chase’s actions emphasize the seriousness of check fraud. NEWS Read this article online and more Legal News at: www.lawyer-monthly.com
NEWS 5 American Airlines is facing a substantial $50 million fine after settling with the U.S. Department of Transportation regarding its treatment of disabled passengers. The investigation uncovered multiple violations, including providing “unsafe physical assistance” to passengers, which sometimes resulted in injuries and disrespectful treatment of individuals using wheelchairs. American Airlines Hit with $50 Million Fine Over Treatment of Disabled Passengers to American Airlines, regulators found it to be “one of the worst performers among U.S. airlines” in terms of claims related to mishandled wheelchairs and scooters. Buttigieg stated, “The issues we’ve found in our investigation aren’t limited to just one airline. We’re also looking into several other U.S. airlines for similar problems.” He stressed that today’s actions should send a strong message to the airline industry to improve compliance with the law and ensure all passengers are treated with dignity, respect, and safety. Complaints related to disabilities increased by over 25% from 2022, according to a report from the Transportation Department. Many disabled Americans would like to travel by air but often avoid flying due to concerns over inadequate accommodations, as highlighted in a study by the Century Foundation. As part of the settlement, American Airlines will pay $25 million to the U.S. Treasury Department and invest another $25 million in airline equipment to prevent wheelchair damage, including a tagging system for better tracking of mobility devices. Additionally, some funds will compensate passengers whose rights were reportedly violated between 2019 and 2023. damage after a viral 2023 video showed crew members mishandling a passenger’s wheelchair, with millions witnessing a baggage handler allowing a wheelchair to tumble off a ramp. In response to ongoing concerns, the Transportation Department introduced the Airline Passengers with Disabilities Bill of Rights in 2022. Current federal rules mandate that airlines must: Promptly return passengers’ wheelchairs and mobility devices in the same condition they were received. Assist passengers with disabilities in boarding, deplaning, and navigating through the airport. While issues with airlines mishandling customers with disabilities are not unique American Airlines is facing $50 million fine after reaching a settlement with the U.S. Department of Transportation regarding its treatment of disabled passengers. The U.S. Department of Transportation revealed that American Airlines mishandled or damaged thousands of wheelchairs from 2019 to 2023, leaving many passengers without their essential mobility aids. The U.S. Transportation Secretary Pete Buttigieg emphasized that the days of tolerating poor treatment for disabled airline passengers are over. He noted that this fine establishes a new benchmark for accountability, aiming to change airline practices and prevent future mistreatment. The airline’s reputation suffered further NEWS Read the full article online at: www.lawyer-monthly.com
Ticketmaster Class Action Lawsuit: Negligence in Major Data Breach 6 LAWYER MONTHLY NOVEMBER 2024 NEWS A class action lawsuit has been filed against Ticketmaster and its parent company, Live Nation Entertainment, alleging negligence in managing customer data. The legal action claims that Ticketmaster lacked adequate protections to prevent a data breach that compromised the personal information of millions of users. Read this article online and more Legal News at: www.lawyer-monthly.com
NEWS 7 was aware of the significant risk of a cyberattack and failed to implement reasonable security measures to protect user information. Ticketmaster’s website and privacy policies claimed sufficient security measures were in place when data was shared with third parties. However, the lawsuit contends that Ticketmaster did not ensure Snowflake was enforcing these safeguards, nor did it require the vendor to adopt enhanced security measures or conduct security audits. This is seen as a violation of Section 5 of the Federal Trade Commission Act, which mandates reasonable security practices. Additionally, Ticketmaster has been criticized for not providing “prompt and accurate notice” of the breach. As a result, millions of customers remain vulnerable to risks such as identity theft, spam, and fraud, especially since the data remains unencrypted and accessible to unauthorized parties. Ongoing Legal Challenges This lawsuit comes at a tumultuous time for Ticketmaster, which is also Overview of the Breach On April 2, 2024, the hacker group ShinyHunters infiltrated Ticketmaster’s database, which was hosted on a thirdparty server managed by Snowflake. Approximately 560 million customers had their personally identifiable information (PII) compromised, including full names, addresses, email addresses, phone numbers, and credit card details. The breach went undetected for nearly seven weeks, with Ticketmaster only becoming aware on May 23, 2024. Customers were informed about the breach on July 17, 2024, almost two months after it was detected. In May 2024, the hackers attempted to sell the stolen PII for $500,000 on the dark web, putting customers at high risk of fraud and identity theft. Allegations of Inadequate Security Measures The class action lawsuit alleges negligence, negligence per se, unjust enrichment, and breach of implied contract, seeking at least $5 million in damages for the affected users. The complaint argues that Ticketmaster facing an antitrust lawsuit from the U.S. Department of Justice, alleging that it and Live Nation Entertainment have monopolized the live concert industry. Moreover, Snowflake is under scrutiny due to its involvement in a previous breach affecting the data of 8.9 million AT&T customers. Legal Representation In the case of Pomeroy et al. v. Ticketmaster, claimant Kiley Grombacher from the law firm Bradley/Grombacher is representing the plaintiffs. As of now, legal counsel for Ticketmaster has not been designated. This ongoing legal situation highlights serious concerns regarding data security and customer protection within Ticketmaster and its partners. Affected users are encouraged to stay informed and monitor the developments related to this case. Ticketmaster Entertainment, LLC is an American ticket sales and distribution company headquartered in Beverly Hills, California. With operations in numerous countries worldwide, Ticketmaster merged with Live Nation in 2010 to form Live Nation Entertainment.
8 LAWYER MONTHLY NOVEMBER 2024 Maître Nathanaël Romus Nestled in the sun-kissed streets of Cannes, just steps away from the renowned Palais des Festivals, stands an exceptional legal institution—the oldest Notaire office in the city, established in 1481. At the helm is Maître Nathanaël Romus, a Notaire Partner dedicated to notarial practice since joining the firm in 2014 and becoming a partner in 2020. In France, the role of a Notaire is distinct from that of legal professionals in common law jurisdictions like the UK and the USA. Appointed directly by the Ministry of Justice, Notaires serve as public officers representing the state. They occupy a unique position of trust, responsible for collecting various taxes—such as VAT, inheritance, gift taxes, and stamp duties—on behalf of the French government. Maître Romus emphasises that Notaires also draft authentic contracts that carry the same legal weight as court decisions, providing clients with unparalleled security without the need for specialised insurance. In the realm of real estate, Notaires play a critical role. They hold a monopoly over registering sale contracts at the land registry, meaning clients must rely on their expertise rather than lawyers, bankers, or estate agents for this essential function. Maître Romus highlights the transparency of the Notaire’s fee structure, which is regulated by French law to ensure fairness and consistency—approximately 0.8% of the sale price plus VAT. Originally from Brussels, Belgium, Maître Romus has made the French Riviera his home since 2013, pursuing his passion for law in this idyllic setting. His office comprises five Notaire partners, four Notaire employees, and around 30 collaborators, each specialising in different legal areas. Alongside Maître Antoine Scriva, who focuses on international private civil law and serves a clientele that is approximately 70% foreign, Maître Romus ensures clients receive expert guidance tailored to their diverse needs. The firm also boasts specialists in public law and family and inheritance law, making it a comprehensive resource for legal services in the region. Specifically, Maître Frédéric Goiran and Maître Eve Ploton focus on public law, while Maître Wafaa Ridouan-Allali specialises in family and inheritance law. What sets this firm apart is not just its rich history and esteemed reputation but also its commitment to excellence in serving clients. The dedicated team includes Maître Olessia Moulioukova, who specialises in Eastern European clients. Together, Maître Romus and his colleagues navigate the complexities of modern legal challenges while upholding the timeless values of trust and integrity that define their profession. As we delve into the intricacies of notarial practice, Maître Nathanaël Romus stands as a beacon of professionalism and dedication in the vibrant legal landscape of Cannes. Navigating French Real Estate: Trust, Transparency, and Tradition
WWW.LAWYER-MONTHLY.COM 9 What sets this firm apart is not just its rich history and esteemed reputation but also its commitment to excellence in serving clients.
10 LAWYER MONTHLY NOVEMBER 2024 In France, a Notaire is not just a legal professional; they are a trusted public officer, ensuring the integrity of property transactions. Key Legal Considerations for Foreign Buyers of Property in France What are the most important legal considerations foreign buyers should be aware of when purchasing property in France? Purchasing property in France as a foreign buyer comes with unique legal considerations that are essential to understand. Here are some of the most critical factors to keep in mind: First and foremost, foreign buyers must be aware of the various recurring costs associated with property ownership in France. One of the primary expenses is the taxe foncière, or property tax, which is payable annually, typically in September or October. There are no specific rules governing the amount, so it’s advisable to consult with the estate agent or the vendor to determine the expected costs. Another important consideration is the habitation tax, which is also an annual fee, usually due in October or November. This tax applies only to secondary homes used for habitation and is generally similar in amount to the property tax. For those with more substantial real estate holdings, it’s crucial to understand the wealth tax. This tax applies exclusively to real estate properties based on their net value, meaning you can deduct any debts, such as mortgage loans, from the total value. If a buyer owns multiple properties, the net values are aggregated for tax purposes. The wealth tax kicks in when the total net value exceeds €1,300,000, calculated according to a proportional scale: • From €800,001 to €1,300,000: 0.50% • From €1,300,001 to €2,570,000: 0.70% • From €2,570,001 to €5,000,000: 1.00% • From €5,000,001 to €10,000,000: 1.25% • Over €10,000,000: 1.50% Additionally, if the property is part of a condominium or a housing development (lotissement), buyers should anticipate service charge invoices. These common expenses may be billed monthly, quarterly, or semi-annually to cover shared costs like cleaning, gardening, and maintenance. There are no standardised amounts for these charges, so it’s prudent to inquire about the expected costs from the estate agent or vendor. Buyers should also be aware of any major works that have been approved during general meetings, as they may be required to contribute to those expenses along with other co-owners. The Role of the Notaire The Notaire plays a crucial role in safeguarding the interests of the buyer. They are responsible for ensuring that all legal considerations are thoroughly examined. This means you can rely on the Notaire to highlight any potential issues that may arise during the purchasing process. Key aspects they will verify include: • The capacity of both parties to sign the deed • The vendor’s title deed and their right of ownership • Any existing legal procedures related to the property • Possible easements or charges affecting the property (for instance, a right of passage for a villa without direct road access) • Verification of all building permits and work done by vendors, along with the necessary insurances from the contractors • Required legal surveys that the vendor must provide, such as assessments for surface area, lead, asbestos, termites, electrical and gas safety, energy efficiency, and any natural risk evaluations • Confirmation that there are no outstanding mortgages or debts on the property prior to sale By entrusting these responsibilities to the Notaire, buyers can proceed with peace of mind, knowing that any significant issues will be raised before the transaction is finalised.
WWW.LAWYER-MONTHLY.COM 11 Avoiding Pitfalls in the Property Purchasing Process What are some potential pitfalls buyers should avoid during the purchasing process, especially when it comes to hidden costs or legal issues? When purchasing property in France, there are several critical points that buyers must pay close attention to in order to avoid potential pitfalls. Here are some key considerations: Timing and Completion Dates One of the first aspects to clarify is the completion date outlined in both the offer letter and the preliminary sale contract. It’s vital to ensure that this date allows sufficient time for both parties to fulfil their obligations. Sellers need Optimal Purchasing Strategies When considering the best approach to purchasing property, various strategies can be employed, depending on personal circumstances. Buyers may choose to acquire the property in their personal name, opt for share ownership with children, or consider alternatives such as usufruct/bare ownership arrangements. Other options include purchasing through a French civil company (Société Civile Immobilière, or SCI) or via a foreign company. The choice of ownership structure is significant, particularly regarding tax implications. Buyers should aim to optimise their strategy to minimise potential French inheritance taxes and wealth tax liabilities. Consulting with a Notaire can provide tailored advice to help navigate these considerations effectively. By staying informed about these key aspects, foreign buyers can better navigate the complexities of purchasing property in France and make wellinformed decisions that align with their long-term goals. enough time to move their personal belongings and organise international relocations, while buyers must ensure they have their funds ready, particularly if financing is involved. Generally, the typical timeframe for completing a transaction is between two to three months from the signing of the preliminary sale contract. To prevent misunderstandings later, it’s advisable to specify the maximum completion date in the offer letter right from the start. Negotiating Suspensive Conditions If you require a loan or need to sell another property—potentially even outside France—to facilitate the purchase, it is essential to protect your interests by negotiating suspensive conditions with the vendor. This should be addressed during the initial negotiation phase and included in the offer letter. Without these conditions, you could find yourself in a position where, if your loan isn’t approved or your existing property doesn’t sell, you may be obligated to forfeit your deposit as financial compensation to the vendor due to a penalty clause.
12 LAWYER MONTHLY NOVEMBER 2024 Hidden Defects In France, properties are typically sold “as is,” unless otherwise negotiated. If the vendor is a private individual and not a real estate professional, they may not be liable for hidden defects. For the buyer to hold the vendor accountable, they would need to prove intentional concealment of those defects in a French court. Conversely, if the vendor is a real estate professional (marchand de biens), they cannot evade responsibility for hidden defects, even if they were unaware of them. This makes it imperative for buyers to conduct thorough inspections during property visits and before the legal ten-day cooling-off period expires. Identifying any issues early allows for negotiations regarding price reductions or commitments from the vendor to rectify problems prior to completion. Once the cooling-off period has passed, it may be too late to address any concerns, so diligence during this phase is crucial. By remaining vigilant and informed about these potential pitfalls, buyers can navigate the French real estate market more effectively and protect their investment from unexpected challenges. Selling Real Estate in France How does selling real estate in France differ from purchasing it? What should sellers expect in terms of legal processes and documentation? Selling real estate in France involves a distinct set of responsibilities and legal processes compared to purchasing property. Here are some key differences and what sellers should anticipate: Financial Responsibilities In France, the buyer is typically responsible for paying the Notaire’s fees as well as the associated stamp duty. This
The Notaire’s fee structure is regulated by French law, ensuring transparency and fairness. This gives clients peace of mind, knowing their financial commitments are clear and predictable from the start. WWW.LAWYER-MONTHLY.COM 13 contrasts with many other jurisdictions where sellers often bear these costs. The vendor’s primary financial obligation is the potential capital gains tax, which may arise from the sale of the property. Legal Documentation Requirements Sellers must prepare several critical documents to facilitate the Notaire’s preparation of the preliminary sale contract. These include: • Full Title Deed: This document verifies the seller’s legal ownership of the property and outlines any encumbrances or restrictions. • Legal Survey File: A comprehensive report covering various aspects such as the property’s surface area, checks for hazardous materials like lead and asbestos, electrical and gas safety compliance, energy efficiency ratings, and assessments of natural risks. I may also include a survey confirming the property’s connection to the main drainage system or the condition of a septic tank. • Last Property Tax Payment: Proof of the most recent property tax payment is necessary to demonstrate that the seller has fulfilled their tax obligations. • Last Invoice of Service Charges: If the property is part of a condominium, the seller must provide the latest invoice detailing service charges, ensuring transparency about shared expenses. • Invoices for Major Works: Sellers must present all invoices for significant renovations or repairs made to the property, along with any necessary authorisations or permits obtained for such work. Disclosure Obligations In addition to these documents, sellers have a legal obligation to disclose any relevant information about the property to potential buyers. This includes declaring any known issues or defects that could affect the property’s value or livability. Transparency is crucial, as failure to disclose significant problems may lead to legal repercussions after the sale. In summary, while the purchasing process may be more complex for buyers, sellers in France must also navigate a specific set of responsibilities and legal requirements. By understanding these obligations and preparing the necessary documentation, sellers can facilitate a smoother transaction and avoid potential pitfalls. Strategies to Reduce Inheritance Tax on Real Estate in France What strategies can be employed to reduce or avoid inheritance tax on real estate in France? Navigating inheritance tax in France can be complex, especially when it comes to real estate. Inheritance tax is progressive, with rates varying based on the value of the estate. For direct line inheritances (from parents to children), the tax brackets are as follows: • Under €8,072: 5% • €8,072 to €12,109: 10% • €12,109 to €15,932: 15% • €15,932 to €552,324: 20% • €552,324 to €902,838: 30% • €902,838 to €1,805,677: 40% • Over €1,805,677: 45% Each child benefits from a tax exemption of €100,000. For instance, consider an apartment in Cannes valued at €2,000,000 with no debts at the time of inheritance. If only the father passes away, leaving behind a widow and three children, the inheritance will be divided equally among the three children, each receiving an interest of €666,666.67 (i.e., €2,000,000 divided by 3). Applying the exemption of €100,000 per child, the taxable amount for each child would be calculated as follows: 1.Taxable Value: • Initial Value: €666,666.67 • Less Exemption: -€100,000 • Taxable Amount: €566,666.67 2.Tax Calculation: Now, applying the progressive tax rates: • 5% on €8,072: €403.60 • 10% on €4,037 (€12,109 - €8,072): €403.70 • 15% on €3,823 (€15,932 - €12,109): €573.45 • 20% on €536,392 (€552,324 -
14 LAWYER MONTHLY NOVEMBER 2024 Sellers must navigate a distinct set of legal obligations, ensuring that every aspect of the property’s history is disclosed to potential buyers. €15,932): €107,278.40 • 30% on €14,343 (€566,666.67 - €552,324): €4,302.79 Total Inheritance Tax Per Child: • Sum of Taxes: €403.60 + €403.70 + €573.45 + €107,278.40 + €4,302.79 = €112,961.94 In this scenario, each child would owe approximately €112,961.94 in inheritance tax, significantly impacting their inheritance. To mitigate or avoid inheritance tax, here are several strategies that can be employed: 1.Gift Funds for Property Purchases Outside France One effective approach is to give money to your children to buy property in their names, ideally outside of France. This strategy can completely avoid inheritance tax since the property will already belong to the children. However, three conditions must be met for the gift to remain untaxed in France: • The parents must not be French tax residents. • The children must also not be French tax residents. • The money transfer must occur outside France. The main drawback of this method is the potential loss of control over the property, as children may choose not to sell in the future or keep the proceeds if they do. 2.Shared Ownership with Children Another option is to share ownership of the property with your children. This arrangement allows parents to maintain partial ownership while ensuring that their share of the inheritance is reduced. The respective ownership shares dictate how expenses, fees, and taxes are handled. However, this structure also presents challenges, as the children can refuse to sell the property, and any sale proceeds will be divided according to ownership shares. 3.Usufruct and Bare Ownership In France, property ownership can be divided into usufruct (the right to use and benefit from the property) and bare ownership (the right to inherit the property). By purchasing usufruct, parents retain control over the property during their lifetime, while the children receive bare ownership, which they will inherit upon the parents’ passing without incurring additional inheritance tax. The valuation of usufruct is determined by the parents’ age, which influences how much of the property’s value is taxed upon their death. 4.Forming a French Civil Company (SCI) Creating a Société Civile Immobilière (SCI) allows parents to pass property to their children by allocating shares of the company. Only the shares held by the parents at the time of their death are subject to inheritance tax, thus minimising the taxable estate. The structure of the SCI can be tailored to maintain control over decision-making, allowing the parents to act as administrators without requiring consensus from other shareholders for significant actions like selling or mortgaging the property. Conclusion Implementing these strategies can effectively reduce or even eliminate inheritance tax liabilities for real estate in France. However, it is essential to consider personal circumstances and consult with a legal expert to devise a plan that best fits your family’s needs and objectives. By proactively managing ownership and structuring, families can navigate the complexities of French inheritance tax more effectively. Understanding Wealth Tax and Strategies for Property Owners Can you explain the current wealth tax (Impôt sur la fortune immobilière) system in France, and how can property owners minimise their liability? The Impôt sur la Fortune Immobilière (IFI) is a wealth tax applicable to individuals whose net real estate assets exceed €1,300,000. It’s essential for property owners to be aware of this tax as it requires careful financial planning. The IFI applies to the total value of all real estate holdings, and the tax rate is progressive, ranging from 0.5% to 1.5%. To minimise liability under this tax regime, property owners can consider several strategies: 1.Leveraging Debt One effective way to reduce your taxable wealth is by incurring debt against your property. By taking out a mortgage or loan secured by the property, you can lower the net value of your real estate holdings. When calculating the wealth tax, debts are deducted from the total value of your properties. It’s crucial to assess the costs associated with taking on a loan compared to the potential tax savings. If the cost of the loan is lower than the tax liability, this strategy could be beneficial. However, keep in mind that monthly loan repayments will gradually increase the property’s net value, so ensure that the loan amount is sufficient to keep your property’s value below the €1,300,000
Effective property management strategies can minimize inheritance tax, safeguarding family wealth for years to come. WWW.LAWYER-MONTHLY.COM 15 threshold for several years. Consulting with a qualified loan broker in France can help secure favourable loan conditions and interest rates. 2.Splitting Ownership Another option to minimise the wealth tax is to co-own the property with family members. By sharing ownership, you can divide the value of the property among multiple individuals, effectively lowering the taxable base for each owner. For example, if a married couple co-owns the property with their children, the total value is assessed collectively, allowing each owner to benefit from the €1,300,000 threshold. This strategy can significantly reduce individual tax liabilities. Tax Implications of Selling Real Estate What are the tax implications of selling real estate in France, especially regarding capital gains tax, and how can sellers reduce their tax liability? When it comes to selling real estate in France, capital gains tax (CGT) is a key consideration. The treatment of this tax can vary significantly depending on the
16 LAWYER MONTHLY NOVEMBER 2024 seller’s tax residency: • For Sellers Tax Resident in Europe: The notary is responsible for calculating and remitting the capital gains tax, and they do not charge a fee for this service. • For Sellers Tax Resident Outside Europe: A French tax representative company is responsible for calculating the capital gains tax, while the notary handles the payment. The tax representative typically charges a fee (around 0.7% of the sale price, which is negotiable). The tax rates also differ based on residency: • For sellers residing in France or outside Europe, the tax rate is 36.2% on the gain. • For sellers residing in other European countries, including the UK and Switzerland, the rate is 26.5%, provided they can demonstrate that they are contributing to the social security system in their country of residence. It’s important to note the exemptions available: • After 22 years of ownership, the 19% portion of the tax is waived, resulting in effective rates of 17.2% for non European residents and 7.5% for European, UK, or Swiss residents. • Full exemption from capital gains tax is granted after 30 years of ownership. Calculating capital gains tax can be complex, as sellers can deduct various costs associated with the acquisition and improvement of the property. Eligible deductions include: • Purchase fees and taxes. • Significant renovation costs. • Certain documentation costs incurred during the sale. Additionally, there’s a yearly tax reduction for ownership beyond five years, which can further decrease the tax liability. Advice for Sellers: Before putting your property on the market, it’s advisable to consult a notary to obtain an initial estimate of your potential capital gains tax. This preliminary assessment is typically provided at no charge and
Securing a mortgage in France can be complex. By collaborating with a knowledgeable notary and trusted loan broker, buyers can access the best financing options tailored to their needs, ensuring a smoother purchasing experience. WWW.LAWYER-MONTHLY.COM 17 can help you make informed decisions regarding the timing and pricing of your property sale. Securing Financing for Real Estate Purchases How can buyers ensure they are getting the best financing options for their real estate purchase, and what role does a notary play in securing a mortgage? In France, navigating the mortgage landscape can be particularly complex, especially for foreign buyers. One crucial aspect is that only a notary (notaire) has access to the land registry, which means that only a notary can legally register a mortgage. This process involves certain costs, including notary fees and applicable taxes such as stamp duty, all of which are mandated by law. Steps to Secure the Best Financing Options: 1.Research and Prepare Before diving into the mortgage process, it’s essential for buyers to conduct thorough research on available financing options. This includes comparing interest rates, terms, and conditions from various banks and lenders. Additionally, potential buyers should assess their financial situation and determine how much they can afford to borrow. 2.Consult with a Notary A notary can play a pivotal role in the mortgage process. Once a loan contract is accepted by the bank, it is the notary’s responsibility to facilitate the registration of the mortgage. This ensures that the mortgage is legally binding and provides the lender with the necessary security on the property. Furthermore, notaries are invaluable resources for buyers, especially foreigners, as they can recommend reliable banks or loan brokers who specialise in working with international clients. A well-connected loan broker often has established relationships with various financial institutions and can help you find the most competitive loan terms tailored to your specific needs. 3.Leverage Expertise Given the complexities of obtaining a loan in France, particularly for non-residents, buyers should leverage the expertise of their notary. They can assist in verifying all documents and ensuring that the mortgage agreement complies with French law. Additionally, a notary can help negotiate terms on your behalf and ensure that all legal requirements are met during the financing process. 4.Understand Legal Costs Buyers should also be aware of the legal costs involved when registering a mortgage through a notary. It’s important to budget for these expenses early on to avoid any surprises later in the process. Summary By collaborating closely with a notary and a knowledgeable loan broker, buyers can navigate the complexities of obtaining financing in France and secure the best possible mortgage terms for their real estate purchase. Navigating the real estate landscape in France can be complex, but understanding the roles of notaries and the legal intricacies of buying, selling, and inheriting property is essential for success. From avoiding hidden costs and minimising inheritance taxes to securing optimal financing options, having expert guidance is invaluable. Notaries not only facilitate legal processes but also provide crucial insights that can safeguard your investment and enhance your financial strategy. Whether you’re a buyer, seller, or investor, leveraging the expertise of a notary will empower you to make informed decisions in the French real estate market. Contact Maître Nathanaël Romus Notaire Associé Civil Law Notary Partner Email: nathanael.romus@ officedu21.notaires.fr Tel: (+33) 04 93 39 71 60 Fax: (+39) 04 92 98 99 19 SELAS LES NOTAIRES DU 21 RUE D’ANTIBES Notaires associés 21 rue d’Antibes 06400 CANNES
Protecting Innovation: Exclusive Interview Expert Strategies for Trademark and Patent Management in Biotech and Beyond 18 LAWYER MONTHLY NOVEMBER 2024 In an increasingly competitive global marketplace, the management of intellectual property (IP) is paramount for businesses, particularly in the dynamic fields of biotechnology and innovation. This article features insights from Martin MacLean and Rebecca Tew, partners at Mathys & Squire, who share their expertise on navigating the challenges of trademark and patent management. From contentious and noncontentious trademark work to effective strategies for securing and enforcing patent rights, their perspectives highlight the critical considerations that businesses must address to maintain a competitive edge and protect their valuable IP assets. Martin MacLean: When managing patent portfolios in biotech fields such as protein therapeutics, antibodies, and vaccines, what are the key challenges you face, and how do you ensure your clients maintain a competitive edge globally? Managing patent portfolios in the biotech sectors, including protein therapeutics,
WWW.LAWYER-MONTHLY.COM 19 antibodies, and vaccines, presents a unique set of challenges that demand both technical expertise and strategic foresight. One of the foremost challenges in biotech patent management is the timing of patent filings. Many companies file patents at the earliest possible opportunity, often before sufficient supporting data have been generated. In the context of the European Patent Office (EPO), the ability to demonstrate the plausibility of a claimed clinical effect is crucial. When early data fail to substantiate claims, applicants may face rejections, particularly when close prior art exists that asserts similar effects. Although the EPO’s G2/21 decision has provided some guidance, demonstrating tailored strategies that align with the specific legal landscapes of each market. This complexity necessitates thorough preparation and foresight, enabling clients to secure their innovations across multiple jurisdictions effectively. Attorneys must keep up to date on developments in all key jurisdictions. For example, a decision such as the US Supreme Court decision in Mayo v Prometheus established a higher threshold for the patentability of methods involving natural phenomena. At a stroke, the decision wiped billions off the value of diagnostics IP estates, and patent attorneys were left scrambling for new approaches to protect their clients’ interests in those fields. Ensuring freedom to operate (FTO) is another critical aspect of biotech patent management. In crowded fields like antibodies and vaccines, overlapping patents can create significant infringement risks. Conducting comprehensive FTO analyses allows clients to navigate these complexities, identifying potential infringement issues before they arise. To maintain a competitive edge in this rapidly evolving landscape, several strategic approaches can be employed. Proactive patent filing, informed by a robust supporting data package, is essential. Aligning patent applications with Managing patent portfolios in the biotech sectors such as protein therapeutics, antibodies, and vaccines presents a unique set of challenges that demand both technical expertise and strategic foresight. distinctiveness remains a significant hurdle. The complexity inherent in biologics further complicates patentability assessments. Proteins and antibodies possess intricate structures and functions that necessitate detailed disclosures. To adequately capture the uniqueness of an invention, robust experimental data must be accompanied by clear explanations of the structure-function relationships. This complexity requires patent attorneys to possess a deep understanding of both the scientific and legal aspects of their clients’ innovations. Another persistent challenge lies in balancing broad and narrow claims during patent prosecution. Broad claims can offer extensive coverage and protection but are often more vulnerable to invalidation. Conversely, narrow claims may limit a client’s competitive advantage. Thus, striking the right balance becomes critical. Patent attorneys must draft claims that provide sufficient breadth while ensuring defensibility against potential challenges. Global patent strategies also pose unique challenges, as different jurisdictions have varying standards for patentability, particularly in the biotech sector. Navigating these differences requires
sufficient experimental data mitigates the risks associated with premature filings. Thorough analysis and strategic timing can significantly enhance the chances of successful prosecution. Furthermore, establishing a systematic approach for clients to lead competitor intelligence efforts can yield valuable insights into market dynamics and emerging technologies. By monitoring third-party IP activity, including patent filings and oppositions, clients can adapt their strategies proactively and seize opportunities for third-party oppositions. Collaborative research agreements with academic institutions and industry partners can also enhance innovation and result in joint patents, sharing the risks and rewards associated with patent prosecution and enforcement. Dynamic portfolio management—regularly reviewing and adjusting the patent portfolio to align with market trends— ensures that clients remain responsive to changes in the biotech landscape. Moreover, education and training play crucial roles in empowering clients to navigate the complexities of patent management. Conducting workshops on patent law and biotechnology developments helps clients make informed strategic decisions. Finally, integrating regulatory strategy into the innovation process is vital for success in the biotech sector. Understanding how patent rights interact with regulatory requirements ensures that innovations are not only protected but also compliant with necessary trials and validations. By addressing these multifaceted challenges with informed strategies, patent attorneys can help clients navigate the complexities of the biotech landscape effectively. This comprehensive approach enhances patent protection and equips clients to remain competitive, positioning them favourably in their respective fields amid a rapidly changing environment. You have extensive experience with European Patent Office (EPO) hearings, particularly in opposition and defence cases. Can you share your approach to preparing for these hearings and any notable challenges specific to biotech inventions? Biotech patents are often subject to postgrant challenges, such as oppositions and invalidity claims. Being prepared for these potential disputes is essential for maintaining the integrity of a patent portfolio. A proactive approach to managing these risks involves establishing robust defences and strategies for potential litigation. Preparing for European Patent Office (EPO) hearings involving biotech inventions requires a meticulous and adaptive approach. My experience has taught me that the landscape is everchanging, with each case presenting its unique set of challenges. The first step in my preparation involves a comprehensive review of all relevant case materials. This includes analysing the patent specification in detail— understanding the claims, supporting 20 LAWYER MONTHLY NOVEMBER 2024 Another persistent challenge lies in balancing broad and narrow claims during patent prosecution. Broad claims offer extensive coverage but are often more vulnerable to invalidation, while narrow claims may limit a client’s competitive advantage.
data, and any amendments that have been made. In biotech, where the stakes often involve substantial investments and cutting-edge science, it’s crucial to ensure that the patent’s claims are clearly articulated and defensible. I also carefully examine opposition documents, focusing on the grounds for opposition and the prior art cited by the opponent. This step is foundational; a solid grasp of the material allows me to anticipate the opponent’s arguments and prepare counterarguments effectively. Next comes the crucial task of conducting a detailed prior art analysis. In biotech, this often means delving into complex scientific literature and assessing how the claimed invention stands in relation to existing patents. The aim is not only to validate the patent’s claims but also to identify potential weaknesses that the opposition may exploit. An additional layer of complexity arises when dealing with AI-based biotech inventions, particularly in relation to hearings before the Examining Divisions of the EPO. The intersection of AI and biotechnology poses novel challenges in patentability. In summary, my approach to preparing for EPO hearings is multifaceted and dynamic. Each case demands a tailored strategy that accounts for the intricacies of the technology involved, the arguments presented by the opposition, and the evolving landscape of patent law. By embracing a proactive mindset and remaining adaptable, I ensure that my clients are well-prepared to navigate the complexities of the hearing process, ultimately safeguarding their innovations and intellectual property in a fiercely competitive environment. Given your background in technologies like diagnostic assays and green agrochemicals, how do you balance innovation with ensuring freedom to operate for your clients, particularly in a highly competitive and regulated industry? Balancing innovation with freedom to operate in the fields of diagnostic assays and green agrochemicals is a nuanced and challenging endeavour. These are highly competitive and regulated industries, and it is essential to navigate both the patent landscape and the regulatory framework effectively. One of the first considerations is understanding that regulatory approval is often decoupled from the patent process. This distinction is particularly important when dealing with combination products, where the specific “active compound” presented in regulatory applications can WWW.LAWYER-MONTHLY.COM 21 One of the foremost challenges in biotech patent management is the timing of patent filings.
significantly influence both approval and marketability. Regulatory bodies typically evaluate products based on narrowly defined claims, and the language used in patent applications must reflect this precision. For example, when prosecuting combination products, careful consideration must be given to how we define the combination and its medical use. Inadequate or vague language could lead to misalignment between the patent claims and regulatory expectations, jeopardising both patent protection and the ability to gain regulatory approval. In practice, this means that my team and I work closely with clients to ensure that the definitions we use in patent applications align not only with scientific realities but also with regulatory requirements. For instance, if a diagnostic assay relies on a combination of biomarkers, it’s crucial to articulate this combination precisely in both the patent claims and the regulatory submission. A failure to do so could result in regulatory rejection or challenges in asserting patent rights later on. The introduction of “equivalents” in UK infringement proceedings adds another layer to this discussion. The concept of equivalents allows for some leeway in how patents are interpreted, acknowledging that innovations may not always replicate the patented invention in an identical manner but may still fall within its protective scope. This legal framework can both support innovation by providing a degree of flexibility and complicate the FTO landscape, as it may be unclear whether a new product or process is infringing upon existing patents. In practice, this means that when we innovate, we must do so with a keen awareness of existing patents and the potential for equivalents. Comprehensive FTO analyses are essential to identify existing patents that may pose risks. These analyses not only include searching granted patents but also examining pending applications and published literature. Understanding the competitive landscape allows us to navigate potential infringement risks proactively, ensuring that our clients can pursue 22 LAWYER MONTHLY NOVEMBER 2024 their innovations without fear of legal repercussions. Furthermore, fostering a culture of collaboration between regulatory affairs and patent teams can be invaluable. Regular communication ensures that both aspects are aligned and that innovations are not developed in a vacuum. For example, when working on green agrochemicals, where environmental regulations play a significant role, it’s crucial to consider both the patent strategy and the regulatory pathway simultaneously. This dual approach can streamline the process, minimising the risks of regulatory delays or challenges later on. Ultimately, achieving a balance between innovation and FTO requires a strategic, multifaceted approach. By understanding
RkJQdWJsaXNoZXIy Mjk3Mzkz