Investment Research Associates - Page 368




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          this Court previously noted:  (1) In view of the broad definition            
          of the term "Patent Rights", as defined in the March 28, 1978,               
          agreement between Newport and Sloan-Kettering, it is difficult to            
          see that IRC acquired ownership of anything that could be                    
          commercially exploited in a trade or business; (2) the existence             
          of the IRC Shareholders-Newport Put/Call Agreement made it                   
          extremely unlikely IRC would ever exploit the research Newport               
          conducted in a trade or business because (a) if the research were            
          sufficiently successful to require the payment of royalties, then            
          Newport likely would exercise its call option and, (b) if the                
          research were not sufficiently successful to require the payment             
          of royalties, then IRC's shareholders would be motivated to put              
          their IRC shares to Newport in return for Newport common stock;              
          (3) after its initial capital was expended, IRC had no further               
          capital to conduct or finance further research, and the existence            
          of the put and call agreements gave IRC's shareholders no                    
          incentive to contribute additional capital to IRC; and (4) some              
          of IRC's shareholders apparently had always wanted to acquire                
          Newport stock and such investment was structured as a research               
          and development activity in the hope of allowing the investors a             
          deduction for their investment.                                              
               Although Kanter testified in the instant cases, we find his             
          testimony unconvincing and view it as more in the nature of                  
          advocacy than the presentation of substantive evidence.  It does             






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