- 26 - according to petitioner, I-Tech could have legally marketed products during or after the 6-month period. The question is not whether it is possible in principle, or by further contract, to engage in a trade or business, but whether in reality, the taxpayer possessed the capability in the years before the Court to enter a new trade or business in connection with the discovery. See Diamond v. Commissioner, 930 F.2d at 375. The answer to the question of reality must be found in economic reality. See id. Economically, it was not in I- Tech’s interest to market the discoveries/products on its own behalf during the 6-month nonexclusive period. I-Tech was entitled to royalty income from each R&D company that successfully completed its research and reduced it to practice during the nonexclusive option period. If the R&D companies were successful in exploiting their technology, they would exercise their buy-out options to acquire all rights, title, and interest in the technology at the expiration of the nonexclusive license period and continue to pay I-Tech royalty income. I-Tech then had the right to convert its royalty interests into substantial equity interests in successful R&D companies. Finally, the restrictions imposed by the Israeli Government seriously undermined I-Tech’s ability to exploit the products in the future. Under the terms of the Chief Scientist Agreement, only I-Tech in its independent capacity could obtain any patentPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011