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NEWS AND VIEWS,
TRENDS AND TACTICS, STRATEGIES, INSIGHTS, ADVICE,
LEGISLATION, REGULATIONS AND MORE
“Until the members of Congress can act with more vision, we are not going to have a clear and stable policy on energy development and independence.” — Martha Allbright
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Doing Your Homework on Acquisitions
When making an acquisition, companies often fail to look closely at the IP involved—and that can lead to problems, says Toni-Junell Herbert, a partner at Patton Boggs.
Effective IP due diligence is key to gauging the value of the target company’s IP. But it can also help fend off trouble from other quarters. “When an acquisition doesn’t live up to its promise, shareholders may re-examine the deal, and possibly file lawsuits,” says Herbert. Due diligence can forestall such problems. IP due diligence should look to the target’s business context—what relevant technologies competitors have in the pipeline, for example, or whether the IP provides freedom to operate in the marketplace. “Pending litigation, employment agreements and government contacts are also important,” says Herbert. “A research agreement might have obligations that the company hasn’t met, causing it to lose ownership of that IP to the government.”
IP due diligence may not yield definite answers about whether to buy a target, Herbert says. But it can help executives understand what they are getting—and steer clear of unpleasant surprises.
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QUESTION MARKS AROUND SAFETY
By Robin MOrdfin and Peter Haapaniemi
Someday soon, nanotechnology may help to transform a wide spectrum of industries. But its power is starting to raise concerns among regulators, and this may have a significant impact on those who develop or use nanotech.
At the moment, nanotech regulation is sparse. “Right now I can think of only one actual federal regulation, and that is an EPA regulation with respect to nanosilver when used as a pesticide,” says Susan Brienza, an attorney in the Denver office of Patton Boggs who works with the Colorado Nanotechnology Alliance. But there are some question marks around safety, she says. For example, masks and filters used in manufacturing today may not prevent nanoparticles from entering workers’ lungs and pores.
Nanotech companies are working closely with environmental groups and regulators to ensure that they are acting responsibly, says Griffith Kundahl, co-author of The Handbook of Nanotechnology, Business Policy and Intellectual Property. The industry understands that there are still some unknowns about nanotech and manufacturing. “At that level of smallness, quantum physics kicks in,” Kundahl says. “For example, aluminum is very predictable at macroscale, but when you reduce it to nanoscale, its properties change.”
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The FDA says
it doesn’t have the tools to
assess the effect of nanotech
products on the human body or
the environment. |
Over the summer, a U.S. Food and Drug Administration task force concluded that the agency does not yet have adequate scientific tools to assess the effects of nanotech products on the human body and the environment. For now the FDA says that it will not regulate nanomaterials. Instead, it will issue best-practice guidelines while it works to gather more information about risks and benefits. Meanwhile, it will continue to regulate finished products such as drugs, cosmetics and medical devices.
But OSHA and the EPA are also looking into nanotech safety issues, Brienza says. Within three years, she predicts, the freedom that the industry is experiencing now will be over. “
Regulations are coming, and those working with nanotechnology will want to anticipate them and consider taking an active role in responding to proposed rules. This will allow them to have some influence over the form these regulations or guidance documents will take.” CT |
ENERGY:
Is
Independence Out of Reach?
As this issue of Capital Thinking went to press, the final version of the new energy bill had not yet been drafted. But initial versions were not especially encouraging to observers hoping the country would finally settle on a workable, strategic, long-term energy policy.
“Congress cannot decide if we are working toward energy independence or maintaining the status quo,” notes Martha Allbright, a partner in the Denver office of Patton Boggs. “In the 2005 act, oil production on federal lands was encouraged, but so were many unconventional energy forms, including oil shale, geothermic and wind power. The 2007 version not only slows down oil production on federal lands, but potentially discourages alternative energy forms as well.”
Most energy projects, from new oil rigs to wind farms, take years of planning and investment to come to fruition. However, with the mixed signals Congress is sending, it becomes difficult for energy companies to determine where best to put their assets, Allbright says. This puts a long-term solution to the nation’s energy issues only farther from reach.
“Until the members of
Congress can act with more vision, we are not going
to have a clear and stable policy on energy
development,” Allbright says. “Politicians running
for office seem to be agree that the United States
needs to be more energy independent. But this will
be difficult if we delay the development of other
potential energy sources.”
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Public-PrivatePartnerships: The RFP
Key factors to
consider before submitting a proposal for a
public-private partnership for infrastructure
development
By Dr. John B. Miller and Robert
S. Brams
Has the scope of work in the RFP been defined by the public entity or by one of your competitors? Are there indications that an tself to achieve a distinct competitive advantage?
Will there be head-to-head, merit-based competition on price, on qualifications, or on a combination of price, qualifications and other factors?
Is the basis for evaluation published in advance, will it be applied during the competition, and is there an effective means for challenging RFP and award improprieties?
Is the procurement process sufficiently transparent to potential proposers to confirm that all proposers will be fairly treated in the competition?
Where structural design and construction are part of the scope of work, is confirmation of safety a required element that all proposers must meet to be eligible to win?
Are proven technologies that reduce life-cycle costs and/or improve the quality of performance permitted and encouraged?
Is a financial analysis of each proposal over the project life cycle an important evaluation factor in the award?
Does the risk allocation in the RFP between the public and private sectors make common sense?
Does it assign the various risks to the party that is in the best position to manage and control those risks?
Can the winner flexibly employ a variety of contracting and purchasing strategies to deliver the required services?
Are appropriate protections in place for both the public and private sector partners in case of force majeure
events or delays by the awarding authority?
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