The Partnerships in Business - Essay Example

Special 2 Task Partnership: You sunk my partnership“Case In the matter of Reba Jones (App v. Jeannie Smithers (Defendant) General position: The general position of the case is that the plaintiff, Ms. Reba Jones wished the partnership to complete its full two year term, while the defendant desired to opt out. The plaintiff could continue business as a sole owner concern. The assets could be shared in terms of their capital contribution and the art works could remain the property of the Company, Artscene. Rationale: When the defendant partner wishes to quit the firm, there could be no restraints, especially when there is no written covenant binding the partners. In such a situation, it would be the duty of the Court, to decide the terms and conditions of mutual separation and sharing of assets of the firm. Q1: The type of partnership that the plaintiff and defendant have established is a Term partnership because it envisages a 2 year term plan, and they have jointly pooled their resources for the operation of partnership business. It is for a profit venture that they have jointly set stakes in the firm and they would have shares profits upon mutual consent. Q2: Depending upon the location of their business, this partnership would fall under the Revised Uniform Partnership Act, (RUPA), or the Uniform Partnership Act. (UPA) The Uniform Partnership Act states a partnership as "an association of 2 or more persons . . . to carry on as co-owners a business for profit. . . No one factor is alone determinative of the existence of a partnership." In this case, one of the partners claimed that Maslbenden’s participation was just that of a financier and not a partner. However, the Court held that Maslbendens involvement in the business supported the claim that he was a partner. (Lupien v. Malsbenden: Supreme Judicial Court of Maine, 1984). Q3: When one of the partners wished to quit the firm, or if disagreements arise, especially with regard to assets, it would be decided by the judge on the best way of dividing assets. Q4: Once the partnership stands dissolved, then with regard to division of assets, this would be applied according to the capital contributions made by each partner. Q5: Yes, the capital contribution by each partner is a significant factor in dividing the assets. The Court would like to know the amounts invested by each partner in order to assess the mode of splitting the firm’s assets. This is because partners may not have brought capital into the business in equal proportions, and therefore, it would not be in legal consistency to divide the assets equally. Verdict: I agree with the Judge’s ruling. This is because, in the absence of written contract, the conduct of the parties would bind the partners. In this case, Jeannie Smithers, the defendant wishes to quit the partnership and have it dissolved. In the event there was a written covenant, it could bind the parties. Even a verbal contract is a contract, but the terms and conditions would be as determined by the parties, which may change from time to time. Moreover, only a written partnership agreement could bind the partners in their relationships with other partners and third parties. Q6: It is believed that the partners did not understand the implications of the partnership and therefore, could not carry on the business. A sole proprietary firm, with the other person as Art consultant or even a joint venture, setting out the terms of business would have been in order. Q7: Yes, it is well within the rights of a partner in a partnership firm to quit without notice. However, although legally this may be possible, morally, a partner needs to fulfil the terms and conditions of business, whether written or oral. In this case, the defendant, Jeannie Smithers, chose to leave the partnership before its two- year tenure was completed, citing new employment. While it remains between the partners to sort this out among themselves, the Court verdict allows the partnership to dissolve, sharing assets in proportion to their respective capital contributions. Task 2: Intellectual Property: Click here, get sued In the matter of Maureen Garner (App.) v. Samuel Higgins (Defendant) General position: The plaintiff, Maureen Garner holds a patent granted in 2001 for selling shoes online to her clients. The defendant, Samuel Higgins, has been employed by a firm that has been in shoe trade over last 2 decades, and has moved into online shoe business since 2002. However, since the plaintiff’s patent itself has been non obvious and not original, it cannot lay substantial claim to be enforceable, although the plaintiff has been using the patent ahead of defendant. Rationale: Patents grant exclusive monopoly rights to its holders for specified period of time. Although Samuel Higgins may not have been aware of Garner’s patent at the time of entering online business, it was necessary, in best patent practices, to be absolutely sure of contemporary patent holders. The fact whether it is only a process, or just cataloguing does not vitiate the rights of a patent holder exercising absolute rights. However, since the plaintiff’s patent rights itself are unoriginal and unobvious, the question of any illegitimacy in using this process does not arise. Q1: Garners invention is not non-obvious; it is another technique to retrieve information from customer whether it is the sales representative or the customer uploading the Q2: No, Higgins can not claim that he was the first inventor, because he established the internet method after Garner. Q3: Since Garners patent is not legitimate because it dose not pass the non-obvious test, therefore Higgins does not infringe the patent. Q4: Garners invention is not non-obvious, therefore Garners patent is not legitimate, and it does not pass the non-obvious test. Q5: Garners patent does not grant her an unfair monopoly if the patent is legitimate, since it cannot be put into use after the period of its legal validity. Verdict: I tend to agree with the judge’s ruling. The Court has rightly considered the use of the processes by Samuel Higgins’ employers as infringement, since its online product usage has been deceptively similar to the existing exclusive patent held by the plaintiff. However, as the existing patent enjoyed by the plaintiff is not unobvious, and not a result of innovativeness, it has been invalidated by the learned Court. Q6: It is fair on the part of the Courts to invalidate patents granted by the Government because they are the final authority in matters relating to meting out of justice and passing decisions. Moreover, the parties are also at liberty to appeal against the decision of the lower Courts. Q7: The fact whether processes used in the internet and World Wide Web should be a subject matter of patents holds ample risks, in that its viewing is not controlled and anybody could gain access to such sites. While internet protection may be available it may not always be enforceable, especially since different countries have different laws and regulations governing internet. Q8: Patenting laws imparts a sense of protection and security for first time inventions and innovations. Further, through patenting a product, process or innovation, it is possible to dissuade others from copying the product for material gains for a period of time. The patent could be licensed to other users with the express permission and consent of the first inventor. It is through this process that a patent to an inventor encourages and/or discourages creative thinking and sharing of ideas. The first inventor is assured that any copying or infringement of his patent during its currency could invite, or invoke stringent legal repercussions. However there are only certain novel or innovative ideas or brainwaves that could be patented , In Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673, the court held that “the discovery of a novel and useful mathematical formula may not be patented.” Works Cited Lupien v. Malsbenden: Supreme Judicial Court of Maine, 1984. (2007). AudioCasefiles. . Read More