Author: BizMan

  • Giving Season is Here!

    Giving Season is Here!

    It is giving season, with Giving Tuesday coming up after the
    long Thanksgiving weekend. Now is the best time of the year to reach out to
    your Donors and make sure that they are thinking of you as they give thanks for
    the year and give donations into the end of the tax year.  GivingTuesday.org  #GivingTuesday

    First, it is a busy week starting on Thanksgiving.

    Black Friday is named such as a
    target date for companies to move from losing money for the year into profits,
    out of the red and into the black. Basically, if you paid all your expenses at
    the beginning of the year, all future sales after the break-even point would be
    pure profits. Thanksgiving Day, at the end of November is a wonderful target,
    that leaves one month of pure profits. Plus, if the last month of the year is
    disproportionate – like Christmas sales – that is gravy!

    So, let’s see what we have in
    November. Thanksgiving on the 4th Thursday. Black Friday. Small Business
    Saturday. Sunday Football (or futbol, same name, different game). Cyber Monday.
    Giving Tuesday. Buyer’s remorse Wednesday. Returns Thursday.

    Well, all right, I made up the
    last two, but they are kinda true.….

    Hidden in the schedule at the end of November –
    before Christmas & New Years season – is Giving Tuesday. This is a perfect
    time to reach out to past donors to thank them, and touch base with prospective
    donors. Everyone (or business) doing year-end tax planning will benefit from
    the reminder to get their donations organized and submitted to their favorite
    charities to make a difference this year. Plus, tax deductions are an added
    incentive to give donors an extra nudge.
    Happy Thanksgiving, Shopping & Giving Week.

    Elmer Hall

    Check out Hall & Hinkelman’s book on Nonprofit Planning and Impactful Giving for more on fundraising and philanthropic ecosystems.

    Hall,
    E. B. & Hinkelman, R. M. (2022). Perpetual
    Innovation™: Strategic planning for nonprofits and the art of impactful giving:
    the gift of giving, the art of caring
    . ISBN: ‎ 979-8842614615
    Retrieved from:
    Amazon.com/dp/B0BF8MB13X (Available on Kindle eBook as well.)

  • Misery Index (and Pain Index)

    The Misery Index hasn’t been talked about much since the
    1970s when unemployment was really high and inflation was double digit. The
    argument is that high unemployment is painful, and high inflation is painful,
    so when you add the two together you get a good measure of the misery throughout
    the economy. Both presidents Ford and Carter had average Misery indexes of 16,
    but Carter when out of office in 1980 leaving a Misery Index of almost 20 to
    Ronald Reagan.

    Pain Index

    Wikipedia does a great job of organizing information and
    trends related to Misery Index
    by country over time. The article presents 2013 as an example year, just a
    couple years out of the worldwide Great Recession of 2007-2008. Several
    countries had Misery Indexes of 60 or more (Venezuela, 79.4 and Iran, 61.6).  The US had a Misery Index of 11 in 2013,
    predominantly because of persistently higher unemployment, inflation was below
    2%.) High inflation, or even hyperinflation, is usually associated with an
    unstable economy.  In 2019, Venezuela had
    a Miser Index that was basically unmeasurable because of inflation that was
    1000% or far higher.

    In the 1980s, many Latin American countries had business
    relations and huge debts that amplified the misery from the US, especially
    loans that were payable in US Dollars. Many countries had misery indexes that
    were twice that of the USA. Ouch!

    Full Employment

    Full employment was considered by economists at about 6% unemployment.
    Six percent seemed like a good level of unemployed to allow for people moving
    from location to location, job to job, entering and leaving the workforce. So,
    the base misery index would be about 6 at full employment and 0% inflation. But
    as we got into the 21st century, especially about 6 years after the
    Great Recession, it became clear that full employment could be less than 6%,
    Maybe 5%? At end of Obama era and into Trump years, unemployment moved down to
    about 4%. With extremely low inflation, the Misery index dropped to a total of
    about 5 or 6 in the US.

    Modified Misery Index (MI+)

    Some economists like to modify the misery index to reduce
    the index by the amount of GDP growth.

    Misery Index = Unemployment + Inflation (or MI = U + I)

    Misery+ = Unemployment + Inflation – GDP Growth (MI+ = U + I
    GDP
    )

    The pain of unemployment is obvious for the unemployed. For
    the economy, a year in which a person is unemployed also a year lost worth of
    GDP contribution from that person; let’s say a loss of GDP of twice (2x) that
    person’s salary.

    US Misery Index (MI+) 2001 thru 2021

    The pain of inflation is not so obvious. If inflation is 5%
    and wages increase by 5%, then the average employee is equally well off.
    Central bankers tend to aim for 1%, but less than 2% inflation. Higher inflation
    can destabilize the economy (more) because it increases uncertainty and reduces
    the ability of businesses, governments, and individuals to plan (and invest).

    If the economy is growing, let’s say because of productivity
    growth, then that can offset the level of pain and misery. Productivity growth
    can be roughly represented in GDP growth. 

    Coming out of the Great Recession of 2008, unemployment had
    risen to about 18%, inflation was consistently low, close to zero; and GDP
    growth was chugging along at 2% to 3%.  The
    Misery Index was about 20. MI+ was about 17 (when reduced by 2%-3% GDP growth)
    which looks better but is still painful. No one wanted to give up a job if they
    had one; and getting a job if you had none, was ugly. This was misery and pain,
    and the US was in much better positions than many countries (even though the
    Great Recession was totally manufactured in the US housing asset bubble).
    Countries that relied on tourism were hammered by the lack of visitors. No
    business travel. The normal vacationers were hit by a triple whammy: no job, or
    job uncertainty; the crash of savings and retirement funds; and the collapse of
    the housing market where people were struggling to keep their homes or had
    already lost them. Ouch! That was painful.

    Recessions: Destructive Innovation

    Recessions are good, and bad.

    An old economics joke (if there are really any economic
    jokes, maybe pun is better) is: What is the difference between a recession and a
    depression? A recession is when your neighbor loses his job; a depression
    is when you lose your job.

    Recessions are destructive innovation. They accelerate the
    retirement of old business models toward new and better. The Great Recession of
    2008 and the Pandemic Recession of 2020, both accelerated transitions away from
    big malls. The Recession 2020 massively accelerated online shopping and the
    ability of employees to work from anywhere (telework). Surprisingly, most
    businesses and schools didn’t really have the full ability to work online
    (security, bandwidth, collaboration); now they can. Big campuses and office
    buildings may never go back to full capacity.

    On the macro level, the economy in 2019 was zipping along at
    approximately full employment (4.5%) and a GDP of about $21.5T. During the big
    pandemic shutdown in 2Q2020, the economy shrunk about 30%. That’s a lot like
    turning off all the (economic) engines and diming all the lights with the hopes
    that all the moving parts of the economy would be operational and in place when
    the power comes back on. It seems that pandemic relief and the resilience of
    the businesses/people allowed for a jump start back out of the recession.
    Economic growth in 3Q2020 was +33%. By the end of 2021, the economy is/was
    zipping along at about $23T annual GDP. Wow.

    But the economy is different in small and big ways. The
    pre-pandemic economy was 70% services (69%, actually). Now people are buying
    more goods and only 65.5% services. Both the goods, and the services are
    different now. Very little international travel, so countries relying on
    international leisure and business travelers are getting hammered. More to fix
    up your house. Try buying a boat, an RV, an ATV, an auto, or a house!  People are buying differently; think Amazon,
    eBay, Etsy. 

    The toilet paper problem during the pandemic was that there
    were two supply chains for toilet paper: the soft and cushy 2-ply for
    households, and coarse (Brillo pad) single-ply for businesses and government.
    Turns out they were totally different supply chains.

    Changes in supply chains, increased demand along many supply
    chains and supply interruptions (labor, containers, etc.) all resulted in
    shortages and cost increases. The biggest factor in 2021 inflation is energy,
    which filters through all aspects of the economy into the food chain and supply
    chains.

    Oil demand went back above 100 million barrels per day, in
    an industry (fossil fuels) that needs to be discontinued sooner, not later, to
    meet climate goals. The transition away from fossil fuels, will be disruptive. Why
    invest more in rigs, pipelines, and tankers if the entire industry needs to be
    phased down in 10 years and phased out in 30 years?

    BIG oil (Saudi, Russia, Exxon, etc.) is hoping we will never
    make the switch off our oil-addiction… After 40 years of talking about it, they
    seem to be largely correct. 

    Healthy Consumers

    During the Pandemic Recession, many people saved lots of
    money. First, there was no good place to spend money, except maybe to fix up
    your house. The Federal Government shoveled out buckets of money to families.
    And, for those people who kept their jobs, most of them had suddenly reduced
    their monthly expenses in traveling to work and eating out.  Staycations, not vacations. Personal and
    Institutional savings went from just over $1T in 2019 to $4T 1Q2021 (BEA.gov).

    Housing values have jumped by 30%, 40% or even 50% in many
    locations, leaving those people lucky enough to own housing real estate in a
    very sweet position. Selling may be the easiest it has been in decades. Low
    interest rates and very few properties for sell. Since the Great Recession we have
    built far too few houses, so there really is a bit of a housing shortage; no
    bubble in sight. Of course, people looking to buy, or rent, are not going to be
    happy.

    The stock market, and retirement funds, have gone only up
    since the great recession. There was a retraction for the pandemic, but
    otherwise it has continued to go higher. In 2021, all the US markets were up
    dramatically with the S&P 500 up 25+%, hitting 70 all-time highs throughout
    the year. Many market analysists think a small correction, or even a big
    correction, is near; but the bulls seem to be winning almost every week.

    So, let’s see if we have this right? Unemployment is the
    lowest it has been in our lifetime. Employment opportunities are the best they
    have every been with job openings exceeding the applicants by 2 or 3 times. If
    people want to go back into the workforce they can, but they can probably
    afford not to work for the indefinite future. The house is probably worth
    several times what you paid for it. Investments are good and retirement fund is
    bulging at the seams. Your old car is worth more than you paid for it 5 years
    ago.

    Inflation is up, especially for housing, fuel, and food;
    but, if your salary is up as well, that shouldn’t be too bad. The cost-of-living
    increase is 5.9% for retirees who probably own their house and don’t drive
    much.

    Your biggest problem is you must wait 6 months for your new
    car; and you may have to postpone, again, your international vacation. Consumers
    may be in better positions than they have been in years.

    Why do many people think the economy is in the toilet and
    why are so many people so anxious?

    Anxiety and Fear

    The consumer is probably better, financially, then he or she has been for a couple decades. But COVID uncertainty and political divisiveness has wreaked havoc. And then there is the new, wildly prolific, Omicron strain of COVID-19. Normally during times of war or major uncertainty, the US has pulled together. Not this time. That doesn’t seem to be happening. 

    Somehow, we seem to have dropped into the abyss that news outlets have fallen into. Good news, and even great stats, are a yawn. Bad news, with death and mayhem, that’s news! So, news outlets have moved to sensationalizing. And talking heads perpetually pander to their base. It is hard to find fair and unbiased sources, and most people have gotten to where they don’t want or believe real news. 

    Fear mongering seems to work, at least to build followers. 

    And everyone is always stressed out. Even if things are really quite good, all things considered. Especially when considering that we’ve had two-year of pandemic, and more than 800,000 US deaths associated with COVID. We’ve had a world economy come to a complete stop and now we are some 5% further than before. That is pretty spectacular. 

    Look at how far we have come up the mountain range, not at the last high peak. Imagine how easy things might be if we all worked together? 

    #Innovation #DestructiveInnovation #MiseryIndex #Inflation
    #Unemployment #EconomicDevelopment




  • OZ, by any other Name, could be a Profitable Opportunity!

    OZ, by any other Name, could be a Profitable Opportunity!

    Qualified Opportunity Zone Map for USA

    Opportunity Zones present a hidden opportunity for Real Estate (RE) investment that should be widely utilized across the US. Why not? (View Interactive HUD Map here.)

    There’s a spectacular investment tool that was associated
    with tax cuts of 2017 by the Trump administration. Along with the massive tax
    cuts, there was a non-partisan tax break to funnel private investments into
    underdeveloped communities around the nation.

    It took a couple years for the census tracts in every state
    to be identified and for the final definition of the program. There are 8,700+
    census tracts across the US that are designated as “zones”. Most people are
    surprised to find that they live in, or within a few miles, of one of these
    special tax – legal loophole – areas. There are at least two major reasons why
    these special zones have not received substantial attention and engagement: massive
    confusion related to the name, Qualified “Opportunity Zone” (QOZ); and, the
    COVID pandemic/recession.

    OZ, We’re not in Kansas Anymore, Toto.

    Using the term “Opportunity Zone” for these census tracts
    across the nation, was a horrible idea. People think of Enterprise Zones (EZs),
    Industrial Parks, Community Redevelopment Areas (CRAs) and such when they hear
    “Opportunity Zone”. Enterprise Zones are usually a specific campus or
    industrial park, so a business has to locate, or relocate there. Plus, an EZ
    usually has specific target business development such as light-industrial, or
    high-tech research. Business incubators often are located inside an EZ.  Foreign Trade Zones (FTZs) might be added to
    EZs where there is a port (or airport) of entry to enjoy special import/export
    treatment. Anyone, and everyone, who hear about Qualified Opportunity Zones for
    the first time have to disconnect their thinking from the historic use of
    “Opportunity Zones”. Essentially, we’re not in the land of OZ anymore, we’re in
    a qualified version of OZ, a Q.O.Z. Maybe a better approach would be to
    redefine a term or acronym for QOZ. It is a legal tax loophole related to
    designated census tracts; maybe calling it something a Qualified Opportunity
    Tax Area would be better. Let’s use QOZ for the qualified tax areas; and
    QOZ-Fund for the formal bank account of the qualified company that manages
    QOZ funding and reports to the IRS; and QOZ-Property for the real estate
    investments that are central to the QOZ project.

    Probably and equal put-off is that an investment in a QOZ
    goes into a “Fund”. This sounds complicated, a lot like setting up and managing
    your own mutual fund; however, it is surprisingly straight-forward.  Essentially, set up a bank account specific
    to the real estate investment within a qualified census tract; let the IRS know
    on a form (Form 8997) that money has come in from capital gains of an investor;
    and later let the IRS know that the property has been sold and that taxes are
    now payable. (Taxpayers file a Form 8949 each year illustrating how much
    capital gains tax continues to be deffered.) The investors’ capital gains taxes
    could, and should, be much lower in addition to being deferred.  The funding associated with such an investment
    is called an Opportunity Zone Fund (QOZ-Fund).

    The Opportunity
    Zone program creates a tax incentive for individuals who reinvest unrealized
    capital gains into high-impact, long-term projects in high-poverty communities
    across the country. It is based upon bipartisan legislation authored by U.S.
    Senators Cory Booker (D-NJ) and Tim Scott (R-SC). (Booker press release, Oct
    31, 2019)

    The Opportunity
    Zones provision is based on the bipartisan Investing in Opportunity Act, which
    was championed by Senators Tim Scott (R-SC) and Cory Booker (D-NJ) and
    Representatives Pat Tiberi (R-OH) and Ron Kind (D-WI), who led a regionally and
    politically diverse coalition of nearly 100 congressional cosponsors. (Economic
    Innovation Group, https://eig.org/opportunityzones/history)

    Who should consider QOZ projects?

    Answer 1: Anyone involved in real estate in or adjacent to a
    designated QOZ census tract. This, of course, includes Realtors® and mortgage
    lenders, builders, and contractors. (Illegal businesses, and “sin” businesses
    like cassinos, do not qualify.) There are the parties that are exchanging property
    in a real estate sale, of course. The seller would likely have capital gains
    from the sell of the property that could/should be invested somewhere; and a QOZ
    fund investment would allow for deferring or completely avoiding taxes on the
    capital gains. The buyer(s) might want to purchase using their own capital
    gains (from any source). Even outside parties might want to jump in and invest
    in a real estate (or development) project so that they can avoid and defer
    paying capital gains taxes.

    Answer 2: Anyone with capital gains should be interested. This
    introduction of outside parties to a real estate project within a QOZ is
    probably the biggest paradigm shift for many people. Everyone is comfortable
    with bank (debt) financing but using outside (equity) investors may be novel
    for many real estate developers. There is no reason to avoid debt (bank)
    leverage, but the change in ownership will restructure the funding from all
    sources.

    Investors: Capital Gains and Benefits of Taxes Avoided/Delayed

    The beauty of compounding is an almost magical thing. A 7%
    return on investment would double in value about every 10 years. So, a $100,000
    investment might easily grow to a $200,000. That is a reasonable investment
    growth rate for the value of real estate, even if there were no improvements or
    operating profits (like from apartments or offices). But the investment in a QOZ
    Fund would be from moneys that would otherwise be subject to capital gains taxes.
    For most investors this would be 20% or higher tax rates. So instead of
    investing the $100,000, taxes would go to the IRS leaving only about 80,000 to
    invest today. Stated differently, to make the $100,000 investment today, you
    would need $125,000 of money that was taxed at 20% capital gains. (Capital
    gains can be much higher, especially for short-term capital gains.)

    QOZs are a longer-term investment tax mechanism. If you keep
    the investment for 10 years, you pay no taxes (0% tax rate) on the “profits”
    when you sell and cash out of the investment. Wow!… And the taxable amount of
    your original investment will be reduced by approximately 10% if you keep the
    money invested for 5 years (or more). There is a deadline of December 31, 2026
    to reach the 5 year deadline; this deadline puts some pressure to complete a QOZ
    investment into a fund by the end of 2021. After 2021, the 5-year stepdown of
    10% will no longer be possible, but taxes on the original investment will still
    be deferrable until the end of 2026. (There was an additional tax break at 7
    years, but that stepdown of taxes is no longer possible because of the 2026
    deadline.)

    Eventually, you have to pay capital gains on at least part
    of the original investment, but the time that taxes are deferred is time in
    which the compounding of the investment works in your favor. This is a little
    like a traditional IRA, you invest tax-free money today, but pay taxes in 30
    years when you start to withdraw; but during that 30-year period your money
    plus the money that would have gone to the IRS for taxes has been working for
    you. Hopefully, doubling, and then doubling again.

    Map of QOZ Investment Tracts

    How do you know which areas are designated for this special
    OZ tax treatment. The Housing and Urban Development (HUD) has an interactive
    map that allows you to zoom in on a region to find the census tracts that are
    given this special investment status. See the US Map of QOZ census tracts at
    HUD: https://opportunityzones.hud.gov/resources/map

    Some listing services show properties that are in QOZs. So,
    your favorite Realtor would be able to tell you when properties you look at are
    within QOZ tax havens. QOZ status should help to bolster property values.
    Alaska has massive QOZ tracts, and all of Puerto Rico is a QOZ.

    There are several groups who gather QOZ investment
    opportunities around the nation and investors with capital gains to invest. One
    group, OpportunityDB.org, does podcast
    and provides a catalog of various QOZ projects. Many Banks and investment
    houses will assist in creating a QOZ or with finding Funds to consider for
    investing your capital gains.

    Capital Gains in the Future

    The future is uncertain. Many people find themselves locked
    into assets (stocks, real estate, etc.) because selling them would incur a huge
    tax on capital gains. Stocks that you bought in a brokerage account at $10 per
    share are now at 10 times that. Virtually all capital gains! The QOZ program is
    a mechanism to jump out of investments that are in a Capital Gains Trap.

    If you bought property for $1,000 and now it will sell for
    $50,000? Well, there is a mechanism for “like” real estate investments where
    you can move your investment (and profits) from one property to another. But
    there are lots of restrictions to this 1031 tax deferment. Plus, you now have
    your principle and profits tied up in the new real estate.

    But, if you cash out your profits this year, and know that
    you will have to pay capital gains – at least in part – in 5 years, then you
    might be worried about the capital gains rate going up under a Democrat/Biden
    Federal Government. (Capital gains would be the most likely, if any, of the
    possible tax hikes within the next 10 years.) But with an QOZ, you are taking
    out capital gains now, with the expectation of reducing tax payments in the
    future and avoid all taxes on the profits this investment generates. If you
    keep your current capital gains locked up, the lock would be even worse if/when
    capital gains rates go up in the future. Essentially, the Capital Gains Trap gets
    even bigger.

    On the tax side, if you invest in a QOZ in 2021, you should
    start to manage your cash flows for paying some taxes on your capital gains in
    5 years. Your tax forms show (much like your IRAs) how much money you have in
    tax-deferred status. Paying taxes in 5 years, is usually better than paying
    taxes today.

    Profits are a Wonderful Thing

    You should rejoice in making profits. All things equal, you
    should prefer to pay higher taxes because that means that you are making a lot
    of income (profits). In general, you should make your finance and investment
    decisions without considering taxes, and then factor in the tax implications. A
    good investment will rarely be negated by the tax adjustments; but a marginal
    investment might be swayed by tax considerations. Evaluate carefully where you
    invest to make sure the QOZ investment is a profitable venture prior to any tax
    benefits.

    You should never make financial decisions solely based on
    taxes.  Many people have much of their
    life’s savings tied up in a couple asset (classes) that are heavily subject to
    capital gains taxes. The QOZ investment mechanism is a great way to work on
    cashing out of some of the “capital-gains locked assets”.

    It is surprising how little the QOZ tax deferral program
    seems to have been utilized. Makes you wonder why?

    The IRS
    provides questions, answers
    , and a lot of confusion on the topic. Be sure
    to seek advice from professionals who have QOZ knowledge and experience (CPA, RE
    Attorney, Financial Planner, etc.) before making the leap into – and out of –
    QOZ investments.  Of course, if you are
    single, you can try to marry someone who has lost lots of money; then your
    profits might wash with their losses. What could go wrong with that strategy?

    QOZ tracts for Florida and Pennsylvania.

  • Is Trade Secret a Good Strategy? A Trade Secret Assessment

    Is Trade Secret a Good Strategy? A Trade Secret Assessment

    The most widely identified Trade Secret is, of course, Coke Cola. (The original formula included caffeine and cocaine – thus the name – but that is a different discussion!) In 1903, cocaine was removed, leaving caffeine as the sole stimulant ingredient, and all medicinal claims were dropped. But the Coke-a-Cola trade secret lives on. Sections below: 

    Most Widely Acknowledged Trade Secrets

    Other trade secrets include WD-40, Thomas’s English Muffins, the Google search algorithm, Listerine, Mrs. Field’s Chocolate Chip Cookies, Kentucky Fried Chicken, Big Mac special sauce, Bush’s Baked Beans, and the New York Times Bestseller List algorithm

    When you look at Strategic Business Planning Company’s Perpetual Innovation™ series of books, you will find descriptions of Trade Secrets and when they might be best utilized. In many cases, trade secrets that are ultimately released in commercial products are more advertising gimmicks than true secrets. Someone with a refined pallet, and a spectrometer, can identify all the elements that go into a bottle of Coke, for example. In which case, the copyrights © and Trademarks ® are more important than the (open) secret. We have had clients that wanted to use Intellectual Property (IP) protection for food products and consumer electronics. In both cases, the secret would be out there for an industrious competitor to reverse engineer once the product is launched. An “outed” secret in a competitor’s hands! A ruthless competitor could utilize all the powers of Intellectual Property against you, and all the powers of unethical business (like knock-offs) as well. 

    Probably the best trade secret is related to internal manufacturing where the finished product gives no evidence as to the innovation that yields a competitive advantage. In fact, we have had clients who patent an internal manufacturing process but have no way of determining if competitors adopt the technique inside their factories. The patent application tells them how to improve their processes. Our advice might have been to keep this invention internal as a trade secret. However, once the patent application was filed (published really), the next best approach was to manufacture and sell the new machines that capitalized on the invention. Everyone in the industry needed to upgrade to realize the production improvement.

    Our Trade Secrets Assessment Tool

    SBP has a Short Trade Secret Checklist and a regular checklist to see if new technology should be considered for protection as a Trade Secret. Here is the short form (with only 6 of the original 11 questions).

    As well, here is the interpretation of the checklist assessment in this Short Form example; the score was 4.8 (out of 10). The Longer Form (not shown here) for this same business case was slightly higher at 5.1, up slightly from a low to a medium trade secret position.
    If a trade secret is the decision for IP protection, then you will want to develop a Trade Secret Plan. The plan will include how to protect the secret by limiting who knows the secret, confidentiality agreements, etc. The Trade Secret Plan will also address what happens when the secret is exposed. Note the when, not if, here. There might be circumstances where you would expose the secret yourself, maybe in the disclosure associated with a patent application.

    #TradeSecret #IntellectualProperty 
    #IntellZine #IPplan #SBPlan

    Uniform Trade Secrets Act (UTSA)

    This is from the UTSA (with 1985 Amendments):

    The USTA (Uniform Trade Secrets Act) “trade secret” (UTSA § 1.4) “means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

    The UTSA also provided refinement through comments to the definition of a trade secret itself:

    • Multiple parties may hold rights to the same trade secret, as they may all individually derive value from it.
    • A trade secret ceases to exist when it is common knowledge within the community in which it is profitable. This means that the secret does not need to be known by the general public, but only throughout the industry that stands to profit from it.
    • A party that reverse engineers a trade secret may also obtain trade secret protection for their knowledge, provided the reverse engineering process is non-trivial.
    • Knowledge preventing loss of funds, such as that a particular idea does not work, is valuable and as such qualifies for trade secret protection.

    Regarding reasonable efforts to maintain secrecy, the UTSA maintained that actions such as restricting access to a “need-to-know basis” and informing employees that the information is secret met the criteria for reasonable efforts. The UTSA stated that the courts do not require procedures to protect against “flagrant industrial espionage” were not necessary.(Uniform Trade Secrets Act with 1985 Amendments”. Retrieved 2020-04-19.)

    Remedies. The UTSA provided for several potential remedies for wrongs committed under the act, including injunctive relief, damages, and attorney’s fees.

  • The Patent KING: IBM for 28 years

    The Patent KING: IBM for 28 years

    IBM is again the leader in patents issued. That’s 28 years and running.  IBM had 9,130 patents issued in 2020, compared to the next highest, Samsung with 6,416.  There’s about 15 electronic and manufacturing companies with 2,000 to 3,000 patents issued. Note that all the top 10 are electronics and/or chip makers.  Forbes has a nice article by Roberts about the top 20 patent recipients of 2020

    Apple, the largest company by market cap ($2.1T), is 8th with 2,792 patents. Apple is starting to get serious about batteries and autos.

    Amazon and Google are the only two in the top 20 that are not electronics and/or manufacturing. Amazon (2,244 patents) comes up at 11th. Google at 17th had 1,817 patents issued. The automakers of Toyota and Ford are 14th and 15th.

    A couple years ago, Samsung kinda dethroned the King as discussed in our 2017 blog post: The End of a Patent Dynasty, IBM has Been Dethroned. Samsung, including all of its related companies, with lots and lots of design patents, outpaced IBM in 2016. For 2020, Samsung Display company had 1,902 patents, so Samsung, as a consortium of companies, again rivals IBM in total patents.

    GE, even though it is a shell of it’s former mega company, is still in the top 18, with 1,760 patents.  GE continues to divest of various business unites including financials to focus on a few core business like turbines, renewables, transportation and healthcare. 

    A Bloomberg article by Brody Ford on March 12 2021 discusses IBM as more of a Godfather of Patents than a King. With more that 38,000 active patents and a spectacular war chest of patent licenses, or cross licenses, IBM is a force to be reckoned with. Ford discussed Chewy fighting back, kind of the dog nipping at the heels of the King (or the Godfather). IBM is way down from the times when it was customary to produce $1B a year from licensing royalties. Patent revenues peaked at $1.7B in 2000 and then again in 2016 at $1.6B. The patent landscape has changed. One thing that Ford alluded to, but didn’t fully address, is that IBM has significantly changed the way they approach patent commercialization. If they can’t directly use patents, they seem to be doing a much better job of figuring out ways to commercialize. If they sell the patent, that, I believe, would not show up in their patent revenues which reflects royalty streams. 

    In the meanwhile, IBM is on a multi-decade move to upgrade the company to more relevant businesses and business models. Mainframes are only needed for businesses in “as a service” models (SaaS). 

    IBM is a leader in Quantum computing and in blockchain. IBM is actually my way to play the blockchain mega trend and avoid the mania associated with various bits and bytes of cyber coins.