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(a) The prevailing rates in the same industry or for
similar property,
(b) The offers of competing transferors or the bids of
competing transferees,
(c) The terms of the transfer, including limitations on
the geographic area covered and the exclusive or nonexclusive
character of any rights granted,
(d) The uniqueness of the property and the period for
which it is likely to remain unique,
(e) The degree and duration of protection afforded to the
property under the laws of the relevant countries,
(f) Value of services rendered by the transferor to the
transferee in connection with the transfer within the meaning
of paragraph (b)(8) of this section,
(g) Prospective profits to be realized or costs to be
saved by the transferee through its use or subsequent transfer
of the property,
(h) The capital investment and starting up expenses
required of the transferee,
(i) The next subdivision is (j),
(j) The availability of substitutes for the property
transferred,
(k) The arm's length rates and prices paid by unrelated
parties where the property is resold or sublicensed to such
parties,
(l) The costs incurred by the transferor in developing the
property, and
(m) Any other fact or circumstance which unrelated parties
would have been likely to consider in determining the amount of
an arm's length consideration for the property.
c. The Court’s Holding as to the Arm’s-Length Royalty
Rate
We must decide whether the record contains a sufficiently
similar transaction involving an unrelated party. Petitioners point
to the license agreement entered into between Powertex and Insta-
Bulk in settlement of their litigation as a sufficiently similar
transaction involving an unrelated party. Respondent disagrees,
8(...continued)
Cir. 1991).
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