European Perspective on Nanotechnology Patents

European Perspective on Nanotechnology Patents An Overview of Nanotechnology Patents: A European Perspective The future world will to a large extent consist of a knowledge based society. Intellectual property (IP) will play an important role in generating wealth and employment in that society. A general rule is that the more developed a country is the more stricter and secure for IP and strict to uphold the IPR. IP assets have become between 50 and 70 percent of the gross domestic products of a developed country.[1] In that sense it can be said that IP has become one of the most important assets of knowledge based economies.[2] Creativity is essential to economic growth.[3] It is feared that the development of new technologies and thereby the progress of societies will be halted without the presence of intellectual property rights (IPR). IPRs encourage the development of new technologies. IPRs aim at creating a harmonious relationship among investors, inventors and consumers. Patent rights are one of the important branches of IPR. The ultimate goal of patent rights is to promote invention a nd encourage further development of that invention for the benefit of society. Before going into an in-depth discussion on nanotechnology patents, it will be wise to discuss patent rights. The main aim of patent rights is to protect technological inventions.[4] Patents can be seen as the outcome indicators of applied research and technological advancement.[5] A patent protects novel and non-obvious ideas and not mere the expressions of those ideas.[6] The patent system is meant to protect technology, actual machines, devices and new chemical, biotechnological/nanotechnological compositions rather than pure concepts.[7] The main of the system is to promote the continuation of intellectual community[8] and industrial and technological development. Generally a patent may be defined as the exclusive right granted by statute to a party who conceives or discovers a non obvious and novel invention, to use and develop that invention, to prevent others from manufacturing, selling or using the invention for a limited time, which depends on the inventions and jurisdictions. Patent terms are typically from 14 to 20 years.[9] The applicant of a patent must show that the invention is eligible subject matter, novel, having industrial application or utility, inventive step and non-obviousness i.e. that the invention is not obvious to a skilled person in the field with ordinary knowledge and lastly adequate disclosure. Its not enough that an invention is new for a company or in a definite country. The described invention must be new in the international context.[10] Patent is very important in the intellectual and scientific community because of it relate to their reputation and to enrich their resume. In the sense of commercial sector, it i s important because it creates barriers to entry into the market.[11] The emergence of a new and pioneer technology creates issues and possibilities in perfecting IP rights.[12] Like other present technologies, nanotechnology isnt merely a part of a distant future, but is also a significant technology today.[13] Its obvious that nanotechnology will be one of the essential technologies of the 21st century which have enough potentiality to create new markets and prosperity.[14] Nanotechnologies are treated not as a standalone topic, but as a potential and important approach to develop new materials and accomplishment new properties. Their potential for characterizing and building up nano-structure will meet future goals in nearly all sectors. Nanotechnologies have the merit of joining together chemists, physicists, biologists, medical doctors, sociologists, etc. It has been held that nanotechnology will be one of the largest sectors of economic growth of world in the foreseeable future.[15] Such technology will be used in a wide range of products from mi litary weapons to clothing.[16] Many multinational companies have already invested huge amounts in the field of nanotechnology. The nano-world is full of surprise and potential.[17] As its a nascent technology, it may pose problems and opportunities for IP regimes.[18] Nanotechnology patents are not treated differently than other patents but it is true that more complex technology creates more complex problem within the patent system. It may be the next legal challenge in the field of IPR. Although early predictions for nanotechnology commercialization are encouraging, however, there are formidable challenges that include legal, environmental, ethical and regulatory questions, as well as emerging thickets of overlapping patent claims. The rapid technological development of nanotechnology will challenge the traditional regulatory system in patent law.[19] Another problem will arise to classify the nanotechnology because advanced nano-products may suit into different categories simultaneously.[20] One thing is certain, however, nanotechnology is here to stay and will generate both evolutionary as well as revolutionary products in the future, thereby improving all sectors of our life.[21] The impact of nanotechnology on our way of life is widely belie ved to reach profound and hitherto unimagined levels in the coming decades.[22] Nanotechnology is just passing its early stage in the field of science and very little development has occurred in the legal arena on nanotech. In this thesis, I will focus on legal sides of nanotechnology patents. My overall point of discussion is legal rather than technical. The first part of the thesis will contain a general overview of nanotechnology from a scientific view point, different governmental and non-governmental organizations approach as well as the importance of nanotechnology from other general aspects. In the second part of the thesis, the relationship between nanotechnology and IPR will be discussed. The third part of the thesis addresses the possibility of patenting nanotechnology inventions. This part also contains a brief description on EU policy towards nanotechnology patents. Finally, the future legal challenges which may face legal experts in the IP field regarding the patenting of nanotechnology products are analyzed. 1. What is Nanotechnology: Technological and theoretical improvements have moved us to the place where our knowledge of atomic construction and behavior has significantly improved.[23] This advancement enables human to enter the age of nanotechnology.[24] Nanotechnology is mainly consists of ‘nano- materials- e.g. carbon nano-tubes, fullerenes, nano-particles, quantum dots, dendrimers, nano-crystalline diamonds, nano-wires, etc.[25] According to Eric Drexler, a nano-optimist, nanotechnology can change the world in the way that the steam engine did.[26] A proper definition is very important in a field of science and technology, not least for patents.[27] It is very important to define nanotechnology from a legal point of view. The world of nanotechnology is a world of individual atoms and molecules.[28] Its the science to study and use of the unique characteristics of materials at nano-scale.[29] A precise definition of ‘nanotechnology in law and science is yet to be decided. It encompasses many dif ferent concepts and fields simultaneously, which is a difficult task. Even scientists in the field maintain that it â€Å"depends on whom you ask.†[30] Many experts and different governmental institutions have tried to define the concept of nanotechnology. Generally ‘nanotechnology seems to refer to very small science.[31] ‘Technology derives from the Greek tekhne, which means ‘skill or ‘discipline and ‘logos which means ‘speech.[32] ‘Nano comes from the Latin word for ‘dwarf, but today the prefix is more known to denote one billionth (i.e. one billionth of a metre).[33] Therefore nanotechnology could mean the discipline of assembly at the nanometer scale or in other words, molecular assemblage and mass molecular production.[34] Nanotechnology is an umbrella term used to define the properties or products and process at the nano/micro scale that have resulted from the convergence of the physical, chemical and life science.[35] EPO[36] defines ‘nanotechnology as follows: The term nanotechnology covers entities with a controlled geometrical size of at least one functional component below 100 nano-metres in one or more dimensions susceptible of making physical, chemical or biological effects available which are intrinsic to that size. It covers equipment and methods for controlled analysis, manipulation, processing, fabrication or measurement with a precision below 100 nano-metres. The U.S. ‘National Nanotechnology Initiative (NNI) predicted in a report issued by the U.S. Department of Energys Office of Basic Energy Sciences, the near term benefits of the developments of this new technology. The White House Office of Management and Budget devised a broader, more functional definition for nanotechnology. It defines Nanotechnology as : research and technology development at the atomic, molecular or macromolecular levels in the length scale of approximately 1-100 nano-meter range, to provide a fundamental understanding of the phenomena and materials properties at the nano-scale and to model, create, characterize, manipulate and use structures, device and systems that have novel properties and functions because of their small or intermediate size.[37] Nobel laureate Richard Smalley defines nanotechnology as ‘the art and science of building stuff that does stuff on the nano-meter scale. Eric Drexler defines nanotechnology as â€Å"engineering in the molecular scale†.[38] Some legal expert characterizes it â€Å"as the skillful management of matter at the scale of one billionth of a meter or smaller†.[39] The US Nanotechnology Act[40] defines nanotechnology as the science and technology that will enable one to understand measure, manipulate, and manufacture at the atomic, molecular, and supra-molecular levels.[41] Although nanotechnology encompasses many different types of concepts, it can be said generally that nanotechnology is a science to manipulation of matter or things at the scale of nano-meter.[42] Nanotechnology covers several established domains and technologies, with the exact definition of what are nanotechnology still being debated.[43] 1.1 Why is nanotechnology important? Nanotechnology is important in many senses. Nanotechnology will certainly change the nature of almost every human made object in the next century and will reshape out interaction with the surrounding world.[44] It covers a multiple fields of science and will create a vital opportunity in the future world. In the view of transformational impact, its a simple fact that it gives us a set of tools that make us enable to transform the world at a far smaller scale than was ever available to us before.[45] Nanotechnology enables us to change the structure of many different fields by giving us opportunity to access a realm where many of the old rules associated with matter apply no more.[46] Nanotechnology attracts a considerable amount of attention because it gives us opportunity to access to radically different capabilities with wide range of materials, even though we have been using those materials for many years. Nanotechnology will give rise to a wealth of new materials and manufacturin g possibilities, which will cause a great impact on our future economy, environment and society. Nest I will address some fields where the application of nanotechnology will have an important impact: Economic Impact: Many economists predict that nanotechnology will be the next economic turning point in the global economy. It may be the issue of every economic sector as it encompasses a large and diverse field. In nearly every economic sector such as health and medicine, materials, computing and electronics, military weapons, environment, energy, transportation and virtually every other commercial sector nanotechnology will play a great role in coming decades considering its numerous fields of applications. Nanotechnology has attracted the worldwide companies vastly. As of 2004, 1500 companies worldwide have declared their plans on nanotechnology research and development and of these 80% were newly startup companies.[47] The U.S. National Science has presumed that the world market for nanotechnology will reach 1 trillion USD or more within 20 years.[48] According to Lux Research, within next ten years nanotechnology applications will affect nearly every type of manufactured goods.[49] The EU recog nized nanotechnology as an important element for the benefit of its citizens. In 2007 the European Commission allocated EUR 600 million for nanotechnology research and development.[50] The former president of the United States, George W. Bush signed the 21st Century Nanotechnology Research and Development Act[51] on December 3, 2004 authorizing approximately $3.7 billion in federal funding for the development and research of nanotechnology over the next four years.[52] According to Mike Honda, California House Representative and co-drafter of the original Nanotechnology Act, the worldwide market for nanotechnology products and services could reach $ 1 trillion by 2015.[53] Nanotechnology in food security, environmental and public health issues: Nanotechnology will have a great impact on food security and environmental issues. In September 2003, the United States Department of Agriculture published its roadmap and in that report the Department predicted that nanotechnology will change the appearance of food industry, changing the way food is produced, processed, packaged, transported and consumed.[54] Helmuth Kaiser Consultancy predicts that the market of nano-food will rise from 2.6 billion USD to 20.4 billion USD by 2010.[55] Nanotechnology is capable of changing the agriculture and food industry with e.g. new tools for the molecular treatment of disease, speedy disease detection, raising the ability of plants to absorb nutrients etc..[56] Intelligent sensors and small delivery systems will help the agricultural industry combat viruses and other crop disease producing agents.[57] There is strong possibility that in the near future nano-structured catalysts will be available which will enhance the competency of pesticides a nd herbicides, allowing lower doses to be used. In CEA (Controlled Environment Agriculture), nano-technological devices providing ‘scouting capabilities could enormously improve the growers ability to determine the suitable time of harvest for the crop.[58] Another important role for nanotechnology-enabled devices will be the increased use of automatic sensors linked into a GPS system for real-time monitoring. These nano-sensors could be fixed throughout the field where they can monitor soil conditions and crop growth.[59] Wireless sensors are already being used in specific parts of the US and Australia. Nanotechnology can help us to improve our understanding of the biology of different crops and thus potentially increase yields or nutritional values.[60] Nanotechnology has also potential to save our environment indirectly through the use of renewable energy supplies, and filters or catalysts to control environment pollution and clean-up existing pollutants.[61] Nanotechnology can also be used to clean ground water. The US Company Argonide uses 2nm diameter aluminum oxide nano-fibres (Nano-cream) as an element of water purifier. This nano-level filtration system helps to remove viruses, bacteria and protozoan cysts from water. Developing countries like India and South Africa are also running similar projects using the same technique.[62] Research at the Centre for Biological and Environmental Nanotechnology (CBEN) has shown that nano-scale iron oxide particles are tremendously effective at binding and removing arsenic from groundwater,[63] which will play a great role especially in the developing countries where environmental pollution is an important factor. The development of nano-technological based remediation techniques can resto re and clean-up environmental injury and pollution (e.g. oil in water or soil).[64] Most of the opposition to nanotechnology has been targeted on the long term risks connected with self-replicating nano-robots. Some environmental groups, e.g. the Action Group On Erosion, Technology and Concentration (ETC) predicts that nano-materials may cause harm to human health and environment. Moreover the group urges to ban the production of nano-materials.[65] Besides these, some experts feel worried about impact of nano-particles in the environment and predict that some nano-elements will also be harmful for the environment and suggest that there must be a risk assessment authority for nano-particles. Nanotechnology in the medical sector: Nanotechnology is a technology which has vast possibilities in the development of health and medical treatment.[66] Medical science has made big advances in understanding the structure and functions of living organisms down to the genetic level. Nanotechnology created the opportunity to apply that knowledge significantly more perfect to the diagnosis and treatment of illness and injuries than in the traditional way.[67] Nanotechnology applications in medicine are growing significant interest, which can be labeled as ‘nano-medicine. ‘Nano-medicine can be defined as the medical application of nanotechnology that will have potential to lead to useful research tools, advanced drug delivery systems and new ways to combat disease or repair injured tissues and cells.[68] The advancement of nano-medicine may result in more significant interventions in respect of illness.[69] Nano-medicine is capable of prevention, early and accurate diagnosis and treatment of different diseases.[ 70] The experts on physical science predict that in future nanotechnology will apply to surgery and to cure different complex diseases in human body. Nanotechnology in military weapons: The first wave of nanotechnology will primarily be used in the military for state security related purposes.[71] Many nanotechnology experts presume that in many states have already taken lots of initiatives in their military sectors and given top priority to research in making nanotechnology weapons and its potentiality at the time of war and other military uses. It should be remembered that the Internet, computer and other land marking inventions of the last century were also military projects and now these inventions have changed the world in every sector and are being used for the welfare of mankind. The ultimate question comes down to whether the good outweigh the bad with respect to the utilization of this technology in this domain.[72] Nanotechnology in Information Technology (IT): Nanotechnology has enough potential for creating faster computers with larger memories than the present transistors and other components permit.[73] Carbon nano-tubes will also be used in IT. These tubes could be either conducting or semiconducting and have the potential for memory and storage as well. By using nanotechnology, computer tools will be cheaper than today and will create a sustainable IT sector. Without doubt nanotechnology will vastly affect the IT sector in the future. 1.2 EU policy for nanotechnology: Presently nanotechnologies strengthen many useful and practical applications and have huge possibilities to improve the quality of life and protection of environment and accelerate Europes industrial competition.[74] The European Commission has taken several steps to take nanotechnology research benefits for the development of the EU[75]. The EU is proceeding toward a collective and correlated strategy for nanotechnology research and development.[76] The Commission has not yet adopted any broad and specific public policy for nanotechnology but has adopted a strategy plan for the allocation of significant resources for supporting nanotechnology research and development.[77] But this strategy has yet not been turned into any formal legislation and/or regulation.[78] On June 7, 2005 the European Commission passed an Action Plan for the implementation of a strategy for European nano-science and nanotechnology development.[79] This action plan is not obligatory by law and in apparently it is simply a declaration and a step towards regulating nanotechnology further. In this action plan, the importance of research and examining the future impact of nano-science and nanotechnology is emphasised. The Commission have divided the Action Plan into five steps: Promote RD in the Europe: In this phase, the Commission recognized that by collaborating with public and private sectors across Europe for the research and development of nanotechnology, an interdisciplinary initiative is necessary. In 2007-2008, the Commission invested EUR 2.5 billion under the Research Framework Programme and before that in 2003-2006 EUR 1.4 billion had been invested.[80] As nanotechnologies have multidisciplinary character, the Research and Development (RD) projects have taken in different industrial sectors such as health, food, energy, transport, environment, etc.[81] Frame a base of European â€Å"Poles of Excellence†: This phases main aim is to build up poles of excellence into present structures for establishing highly-presentable world class poles in the area of nanotechnology by providing necessary services to the research community.[82] State of art equipment and instrumentation is day by day a challenge for the development of nanotechnology and to establish whether RD is enabling to transform into capable of being wealth rendering product and process.[83] The Commission is giving support continuously by funding access to present facilities and creating new facilities, which have led to ‘durable integration in the form of new institutes and virtual infrastructure such as the European Theoretical Spectroscopy Facility (ETSF).[84] Investing in human resources: The purpose of this axis is to conforming European educational system to the specifies of nanotechnology in the higher level studies which also cover legal technical subjects such as patenting nanotechnology and encourage the young people in the EU to nanotech studies and research.[85] Actually the development of nanotechnology mainly depends upon the skilled manpower and interdisciplinary actions. The main aim of this phase is to transform the nanotech knowledge from academy to industry.[86] Patronizing the transformation of knowledge into Industrial Applications: In this phase the Commissions strategy and its Action Plan pointed to two issues connected to IP: Patents and Standardization.[87] In respect of patents, the Commissions Action Plan advocates to establish a patent monitoring system for nanotechnology and to harmonize the patent prosecution system especially ‘sufficiency of disclosure and ‘inventive step, (which are crucial in case of nanotechnology patents) among the leading patent offices in the world such as the European Patent Office (EPO), the US Patent and Trademarks Office (USPTO) and the Japan Patent Office.[88] Concerning standardization, the Commission encourages pre-normative research and development in combined actions with the activities of European Standard Bodies.[89] Integrate the Social Dimension: The purpose of this phase is to recall an EU strategy about ethical principles in respect of health, safety and environmental aspects in the development of nanotechnology and making a transparent approach by open dialogues with E.U. citizens and stakeholders.[90] The Commission has taken several actions to reflect the peoples expectations and take their views into account.[91] In February 2008, EC passed a recommendation of ‘Code of conduct for responsible nano-science and nano-technologies research which gives guidelines towards a responsible and open approach.[92] Every proposal considered for funding by the Commission must meet the requirements of ethical issues.[93] The Commission is also giving efforts to increase researchers awareness to the Code of Conduct on nanotechnology research. Actually the Commission seeks the nanotechnology research to reflect and comply with the basic ethical values described in the core European Agreements such as ‘the European Charter of Fundamental Rights. 2.0 Relationship between Nanotechnology and IP: IPRs play a significance role in the development of new technologies. IPRs are essential in the present technology-driven age.[94] For an international perspective, nanotechnology is presently one of the most effective new technologies, in terms of number of patent applications.[95] Moreover, competitors in the nascent nanotechnology industries employ trade secrets legislation to supplement their control over key technology and expertise. In spite of being less directly involved in the nanotechnology industry, copyright and trademark legislation are also affect competitors in nanotechnology markets as the companies use computer software for nanotechnology research and development. Moreover, companies are also active to give their products commercial identification and trademark is playing a great role in that respect. IP law yields the primary regulatory vehicle by which ownership, control and use of nanotechnology are managed. The basic purpose of IP law is to facilitate for creators or inventors and encourage continuation of further development and creation. Thus IP law plays an influential role in a new and highly divergent functioning field of research and development like nanotechnology.[96] IP law also plays an important role in the integration of nanotechnology development into commercial applications.[97] The next part investigates how nanotechnology is related to IPRs. Patent: Patent law give legal rights to inventors. For a patent right to be granted certain criteria should be fulfilled such as eligible subject matter, inventive step, novelty and usefulness or industrial application and lastly sufficient disclosure and description.[98] Patents are important to protect small, emerging technology business.[99] Most business enterprises need a quantity of patent portfolio as insurance towards their already risky investment.[100] These criteria are not technology specific and thus should also be fulfilled in case of nanotechnology inventions. As much of the research in nanotechnology has been conducted through multidisciplinary fields, it may challenge the present patent system. For an example, as its a newly adopted technology in the field of science the patent examiner may grant broad patent rights to the inventor which in the future may cause a great barrier in the development of nanotechnology and society may be deprived from the benefits of nanot echnology. Copyright: Copyright law protects original expressions of ideas of literary and artistic works but not for the ideas themselves.[101] The main key of copyright is the ‘originality of authorship.[102] The issues of copyright are mostly likely to arise in respect of nanotechnology regarding computer software programs which is likely to be used for nanotechnology research and development.[103] Trademarks: Trademark rights protect words, logos and any other type of commercial identifiers.[104] These marks help the public to identify the respective products or services of a company. It also helps customers from not being misled by deceptive use of marks. As many nanotechnology related companies will come into the market, trademarks will play an important role to identify the different company and their products which is most crucial for investment of a company. Trademarks also indicate the goodwill of the company. Trade Secrets: Trade secrets can be defined as ‘confidential information or knowledge which is not widely known and gives competitive advantages to its owner. Companies may be more interested to keep some information or know-how of their products as trade secrets because under patent law after the expiry of the protection period the product will come into public domain. For trade secrets there is no time limit and business advantages may come from by using trade secret protection wisely, or a combination of patents and trade secrets. The use of different forms of IP offers different options for developers of nanotechnology. While nanotechnology industry is highly patent oriented the possibility of vast legal battles over nanotechnology patents in the future is likely to be happen. It also should be kept in mind that aggressive assertion of IPRs can create obstacles in important research of nanotechnology.[105] Patent busting, generics, technical standards and open sources are a few of the leading examples of critical IP challenges to all technology, including nanotechnology.[106] The challenges of IPR management of nanotechnology are not only for the ownership of IP but also the possibility of huge economic value from nanotechnology. 3.0 Patentability of Nanotechnology-European Aspect: The recent advancement of industrial research and development in the nanotechnology field is a worldwide phenomenon. Since last few years national and international governmental authorities, research institutes and industrial companies have increasingly aware of nanotechnology as a driving force for innovation in different fields including chemistry, material science, biotechnology and electronics.[107] For nanotechnology, patents are the most used and by far most important form of IP.[108] Nanotechnology is incomparably among the most patentable technologies, in that it is exceptional in attributes and nascent.[109] The main attraction in nanotechnology patenting is not only its size but also its ‘unique cross-industry pattern. Nanotechnology is exceptional compared with other technologies because it does not originates in a single branch of science like biotechnology, information technology etc.[110] The main characteristic of nanotechnology is its size. Surprisingly this is nearly the first new field in almost a century in which basic ideas, i.e. ‘the basic building block was patented at the beginning.[111] Patent rights give the rights holder an opportunity to gain economic and other related profits for a certain period as a reward for the invention. In case of nanotech research and invention there is a need for huge long term investments thus patent rights play a substantial role to recoup the investment of a company. Without a clear and sound patent regulatory system, large companies will be reluctant to invest in the field of nanotechnology and the development of nanotechnology invention will be hampered. Its no doubt that the rapid growth of nanotechnology will result a multiple field of application and jurisdiction and obviously will create a legal challenge in future IP regimes. The most basic issue is that whether nanotech inventions are patentable or not? In this chapter the ‘patentability of nanotechnology will be discussed in the light of European legal instruments and the WTO TRIPS Agreement. All inventions are not patentable. A patentable subject matter might not be (a) an abstract idea; (b) laws of nature; and (c) physical phenomena.[112] As mentioned, to qualify the patentability of an invention certain conditions must be satisfied. i) patent eligible subject matter; ii) utility; iii) novelty; iv) non-obviousness; and v) sufficient disclosure. In addition to the already mentioned patentability criteria, the claims have to be clear, brief and must be supported by the description.[113] The application of the inventions requires disclosing the invention is such a way as a whole that a person skilled in the art is being capable to carry out the invention.[114] There are not separate patentability rules for nanotech inventions. Thus any patent connected with the nano-field must fulfill the general requirements of patentability.[115] 3.1 Procedures at the European Patent Office: In Europe, an applicant can file a patent application either in the national patent office or in the Europe European Perspective on Nanotechnology Patents European Perspective on Nanotechnology Patents An Overview of Nanotechnology Patents: A European Perspective The future world will to a large extent consist of a knowledge based society. Intellectual property (IP) will play an important role in generating wealth and employment in that society. A general rule is that the more developed a country is the more stricter and secure for IP and strict to uphold the IPR. IP assets have become between 50 and 70 percent of the gross domestic products of a developed country.[1] In that sense it can be said that IP has become one of the most important assets of knowledge based economies.[2] Creativity is essential to economic growth.[3] It is feared that the development of new technologies and thereby the progress of societies will be halted without the presence of intellectual property rights (IPR). IPRs encourage the development of new technologies. IPRs aim at creating a harmonious relationship among investors, inventors and consumers. Patent rights are one of the important branches of IPR. The ultimate goal of patent rights is to promote invention a nd encourage further development of that invention for the benefit of society. Before going into an in-depth discussion on nanotechnology patents, it will be wise to discuss patent rights. The main aim of patent rights is to protect technological inventions.[4] Patents can be seen as the outcome indicators of applied research and technological advancement.[5] A patent protects novel and non-obvious ideas and not mere the expressions of those ideas.[6] The patent system is meant to protect technology, actual machines, devices and new chemical, biotechnological/nanotechnological compositions rather than pure concepts.[7] The main of the system is to promote the continuation of intellectual community[8] and industrial and technological development. Generally a patent may be defined as the exclusive right granted by statute to a party who conceives or discovers a non obvious and novel invention, to use and develop that invention, to prevent others from manufacturing, selling or using the invention for a limited time, which depends on the inventions and jurisdictions. Patent terms are typically from 14 to 20 years.[9] The applicant of a patent must show that the invention is eligible subject matter, novel, having industrial application or utility, inventive step and non-obviousness i.e. that the invention is not obvious to a skilled person in the field with ordinary knowledge and lastly adequate disclosure. Its not enough that an invention is new for a company or in a definite country. The described invention must be new in the international context.[10] Patent is very important in the intellectual and scientific community because of it relate to their reputation and to enrich their resume. In the sense of commercial sector, it i s important because it creates barriers to entry into the market.[11] The emergence of a new and pioneer technology creates issues and possibilities in perfecting IP rights.[12] Like other present technologies, nanotechnology isnt merely a part of a distant future, but is also a significant technology today.[13] Its obvious that nanotechnology will be one of the essential technologies of the 21st century which have enough potentiality to create new markets and prosperity.[14] Nanotechnologies are treated not as a standalone topic, but as a potential and important approach to develop new materials and accomplishment new properties. Their potential for characterizing and building up nano-structure will meet future goals in nearly all sectors. Nanotechnologies have the merit of joining together chemists, physicists, biologists, medical doctors, sociologists, etc. It has been held that nanotechnology will be one of the largest sectors of economic growth of world in the foreseeable future.[15] Such technology will be used in a wide range of products from mi litary weapons to clothing.[16] Many multinational companies have already invested huge amounts in the field of nanotechnology. The nano-world is full of surprise and potential.[17] As its a nascent technology, it may pose problems and opportunities for IP regimes.[18] Nanotechnology patents are not treated differently than other patents but it is true that more complex technology creates more complex problem within the patent system. It may be the next legal challenge in the field of IPR. Although early predictions for nanotechnology commercialization are encouraging, however, there are formidable challenges that include legal, environmental, ethical and regulatory questions, as well as emerging thickets of overlapping patent claims. The rapid technological development of nanotechnology will challenge the traditional regulatory system in patent law.[19] Another problem will arise to classify the nanotechnology because advanced nano-products may suit into different categories simultaneously.[20] One thing is certain, however, nanotechnology is here to stay and will generate both evolutionary as well as revolutionary products in the future, thereby improving all sectors of our life.[21] The impact of nanotechnology on our way of life is widely belie ved to reach profound and hitherto unimagined levels in the coming decades.[22] Nanotechnology is just passing its early stage in the field of science and very little development has occurred in the legal arena on nanotech. In this thesis, I will focus on legal sides of nanotechnology patents. My overall point of discussion is legal rather than technical. The first part of the thesis will contain a general overview of nanotechnology from a scientific view point, different governmental and non-governmental organizations approach as well as the importance of nanotechnology from other general aspects. In the second part of the thesis, the relationship between nanotechnology and IPR will be discussed. The third part of the thesis addresses the possibility of patenting nanotechnology inventions. This part also contains a brief description on EU policy towards nanotechnology patents. Finally, the future legal challenges which may face legal experts in the IP field regarding the patenting of nanotechnology products are analyzed. 1. What is Nanotechnology: Technological and theoretical improvements have moved us to the place where our knowledge of atomic construction and behavior has significantly improved.[23] This advancement enables human to enter the age of nanotechnology.[24] Nanotechnology is mainly consists of ‘nano- materials- e.g. carbon nano-tubes, fullerenes, nano-particles, quantum dots, dendrimers, nano-crystalline diamonds, nano-wires, etc.[25] According to Eric Drexler, a nano-optimist, nanotechnology can change the world in the way that the steam engine did.[26] A proper definition is very important in a field of science and technology, not least for patents.[27] It is very important to define nanotechnology from a legal point of view. The world of nanotechnology is a world of individual atoms and molecules.[28] Its the science to study and use of the unique characteristics of materials at nano-scale.[29] A precise definition of ‘nanotechnology in law and science is yet to be decided. It encompasses many dif ferent concepts and fields simultaneously, which is a difficult task. Even scientists in the field maintain that it â€Å"depends on whom you ask.†[30] Many experts and different governmental institutions have tried to define the concept of nanotechnology. Generally ‘nanotechnology seems to refer to very small science.[31] ‘Technology derives from the Greek tekhne, which means ‘skill or ‘discipline and ‘logos which means ‘speech.[32] ‘Nano comes from the Latin word for ‘dwarf, but today the prefix is more known to denote one billionth (i.e. one billionth of a metre).[33] Therefore nanotechnology could mean the discipline of assembly at the nanometer scale or in other words, molecular assemblage and mass molecular production.[34] Nanotechnology is an umbrella term used to define the properties or products and process at the nano/micro scale that have resulted from the convergence of the physical, chemical and life science.[35] EPO[36] defines ‘nanotechnology as follows: The term nanotechnology covers entities with a controlled geometrical size of at least one functional component below 100 nano-metres in one or more dimensions susceptible of making physical, chemical or biological effects available which are intrinsic to that size. It covers equipment and methods for controlled analysis, manipulation, processing, fabrication or measurement with a precision below 100 nano-metres. The U.S. ‘National Nanotechnology Initiative (NNI) predicted in a report issued by the U.S. Department of Energys Office of Basic Energy Sciences, the near term benefits of the developments of this new technology. The White House Office of Management and Budget devised a broader, more functional definition for nanotechnology. It defines Nanotechnology as : research and technology development at the atomic, molecular or macromolecular levels in the length scale of approximately 1-100 nano-meter range, to provide a fundamental understanding of the phenomena and materials properties at the nano-scale and to model, create, characterize, manipulate and use structures, device and systems that have novel properties and functions because of their small or intermediate size.[37] Nobel laureate Richard Smalley defines nanotechnology as ‘the art and science of building stuff that does stuff on the nano-meter scale. Eric Drexler defines nanotechnology as â€Å"engineering in the molecular scale†.[38] Some legal expert characterizes it â€Å"as the skillful management of matter at the scale of one billionth of a meter or smaller†.[39] The US Nanotechnology Act[40] defines nanotechnology as the science and technology that will enable one to understand measure, manipulate, and manufacture at the atomic, molecular, and supra-molecular levels.[41] Although nanotechnology encompasses many different types of concepts, it can be said generally that nanotechnology is a science to manipulation of matter or things at the scale of nano-meter.[42] Nanotechnology covers several established domains and technologies, with the exact definition of what are nanotechnology still being debated.[43] 1.1 Why is nanotechnology important? Nanotechnology is important in many senses. Nanotechnology will certainly change the nature of almost every human made object in the next century and will reshape out interaction with the surrounding world.[44] It covers a multiple fields of science and will create a vital opportunity in the future world. In the view of transformational impact, its a simple fact that it gives us a set of tools that make us enable to transform the world at a far smaller scale than was ever available to us before.[45] Nanotechnology enables us to change the structure of many different fields by giving us opportunity to access a realm where many of the old rules associated with matter apply no more.[46] Nanotechnology attracts a considerable amount of attention because it gives us opportunity to access to radically different capabilities with wide range of materials, even though we have been using those materials for many years. Nanotechnology will give rise to a wealth of new materials and manufacturin g possibilities, which will cause a great impact on our future economy, environment and society. Nest I will address some fields where the application of nanotechnology will have an important impact: Economic Impact: Many economists predict that nanotechnology will be the next economic turning point in the global economy. It may be the issue of every economic sector as it encompasses a large and diverse field. In nearly every economic sector such as health and medicine, materials, computing and electronics, military weapons, environment, energy, transportation and virtually every other commercial sector nanotechnology will play a great role in coming decades considering its numerous fields of applications. Nanotechnology has attracted the worldwide companies vastly. As of 2004, 1500 companies worldwide have declared their plans on nanotechnology research and development and of these 80% were newly startup companies.[47] The U.S. National Science has presumed that the world market for nanotechnology will reach 1 trillion USD or more within 20 years.[48] According to Lux Research, within next ten years nanotechnology applications will affect nearly every type of manufactured goods.[49] The EU recog nized nanotechnology as an important element for the benefit of its citizens. In 2007 the European Commission allocated EUR 600 million for nanotechnology research and development.[50] The former president of the United States, George W. Bush signed the 21st Century Nanotechnology Research and Development Act[51] on December 3, 2004 authorizing approximately $3.7 billion in federal funding for the development and research of nanotechnology over the next four years.[52] According to Mike Honda, California House Representative and co-drafter of the original Nanotechnology Act, the worldwide market for nanotechnology products and services could reach $ 1 trillion by 2015.[53] Nanotechnology in food security, environmental and public health issues: Nanotechnology will have a great impact on food security and environmental issues. In September 2003, the United States Department of Agriculture published its roadmap and in that report the Department predicted that nanotechnology will change the appearance of food industry, changing the way food is produced, processed, packaged, transported and consumed.[54] Helmuth Kaiser Consultancy predicts that the market of nano-food will rise from 2.6 billion USD to 20.4 billion USD by 2010.[55] Nanotechnology is capable of changing the agriculture and food industry with e.g. new tools for the molecular treatment of disease, speedy disease detection, raising the ability of plants to absorb nutrients etc..[56] Intelligent sensors and small delivery systems will help the agricultural industry combat viruses and other crop disease producing agents.[57] There is strong possibility that in the near future nano-structured catalysts will be available which will enhance the competency of pesticides a nd herbicides, allowing lower doses to be used. In CEA (Controlled Environment Agriculture), nano-technological devices providing ‘scouting capabilities could enormously improve the growers ability to determine the suitable time of harvest for the crop.[58] Another important role for nanotechnology-enabled devices will be the increased use of automatic sensors linked into a GPS system for real-time monitoring. These nano-sensors could be fixed throughout the field where they can monitor soil conditions and crop growth.[59] Wireless sensors are already being used in specific parts of the US and Australia. Nanotechnology can help us to improve our understanding of the biology of different crops and thus potentially increase yields or nutritional values.[60] Nanotechnology has also potential to save our environment indirectly through the use of renewable energy supplies, and filters or catalysts to control environment pollution and clean-up existing pollutants.[61] Nanotechnology can also be used to clean ground water. The US Company Argonide uses 2nm diameter aluminum oxide nano-fibres (Nano-cream) as an element of water purifier. This nano-level filtration system helps to remove viruses, bacteria and protozoan cysts from water. Developing countries like India and South Africa are also running similar projects using the same technique.[62] Research at the Centre for Biological and Environmental Nanotechnology (CBEN) has shown that nano-scale iron oxide particles are tremendously effective at binding and removing arsenic from groundwater,[63] which will play a great role especially in the developing countries where environmental pollution is an important factor. The development of nano-technological based remediation techniques can resto re and clean-up environmental injury and pollution (e.g. oil in water or soil).[64] Most of the opposition to nanotechnology has been targeted on the long term risks connected with self-replicating nano-robots. Some environmental groups, e.g. the Action Group On Erosion, Technology and Concentration (ETC) predicts that nano-materials may cause harm to human health and environment. Moreover the group urges to ban the production of nano-materials.[65] Besides these, some experts feel worried about impact of nano-particles in the environment and predict that some nano-elements will also be harmful for the environment and suggest that there must be a risk assessment authority for nano-particles. Nanotechnology in the medical sector: Nanotechnology is a technology which has vast possibilities in the development of health and medical treatment.[66] Medical science has made big advances in understanding the structure and functions of living organisms down to the genetic level. Nanotechnology created the opportunity to apply that knowledge significantly more perfect to the diagnosis and treatment of illness and injuries than in the traditional way.[67] Nanotechnology applications in medicine are growing significant interest, which can be labeled as ‘nano-medicine. ‘Nano-medicine can be defined as the medical application of nanotechnology that will have potential to lead to useful research tools, advanced drug delivery systems and new ways to combat disease or repair injured tissues and cells.[68] The advancement of nano-medicine may result in more significant interventions in respect of illness.[69] Nano-medicine is capable of prevention, early and accurate diagnosis and treatment of different diseases.[ 70] The experts on physical science predict that in future nanotechnology will apply to surgery and to cure different complex diseases in human body. Nanotechnology in military weapons: The first wave of nanotechnology will primarily be used in the military for state security related purposes.[71] Many nanotechnology experts presume that in many states have already taken lots of initiatives in their military sectors and given top priority to research in making nanotechnology weapons and its potentiality at the time of war and other military uses. It should be remembered that the Internet, computer and other land marking inventions of the last century were also military projects and now these inventions have changed the world in every sector and are being used for the welfare of mankind. The ultimate question comes down to whether the good outweigh the bad with respect to the utilization of this technology in this domain.[72] Nanotechnology in Information Technology (IT): Nanotechnology has enough potential for creating faster computers with larger memories than the present transistors and other components permit.[73] Carbon nano-tubes will also be used in IT. These tubes could be either conducting or semiconducting and have the potential for memory and storage as well. By using nanotechnology, computer tools will be cheaper than today and will create a sustainable IT sector. Without doubt nanotechnology will vastly affect the IT sector in the future. 1.2 EU policy for nanotechnology: Presently nanotechnologies strengthen many useful and practical applications and have huge possibilities to improve the quality of life and protection of environment and accelerate Europes industrial competition.[74] The European Commission has taken several steps to take nanotechnology research benefits for the development of the EU[75]. The EU is proceeding toward a collective and correlated strategy for nanotechnology research and development.[76] The Commission has not yet adopted any broad and specific public policy for nanotechnology but has adopted a strategy plan for the allocation of significant resources for supporting nanotechnology research and development.[77] But this strategy has yet not been turned into any formal legislation and/or regulation.[78] On June 7, 2005 the European Commission passed an Action Plan for the implementation of a strategy for European nano-science and nanotechnology development.[79] This action plan is not obligatory by law and in apparently it is simply a declaration and a step towards regulating nanotechnology further. In this action plan, the importance of research and examining the future impact of nano-science and nanotechnology is emphasised. The Commission have divided the Action Plan into five steps: Promote RD in the Europe: In this phase, the Commission recognized that by collaborating with public and private sectors across Europe for the research and development of nanotechnology, an interdisciplinary initiative is necessary. In 2007-2008, the Commission invested EUR 2.5 billion under the Research Framework Programme and before that in 2003-2006 EUR 1.4 billion had been invested.[80] As nanotechnologies have multidisciplinary character, the Research and Development (RD) projects have taken in different industrial sectors such as health, food, energy, transport, environment, etc.[81] Frame a base of European â€Å"Poles of Excellence†: This phases main aim is to build up poles of excellence into present structures for establishing highly-presentable world class poles in the area of nanotechnology by providing necessary services to the research community.[82] State of art equipment and instrumentation is day by day a challenge for the development of nanotechnology and to establish whether RD is enabling to transform into capable of being wealth rendering product and process.[83] The Commission is giving support continuously by funding access to present facilities and creating new facilities, which have led to ‘durable integration in the form of new institutes and virtual infrastructure such as the European Theoretical Spectroscopy Facility (ETSF).[84] Investing in human resources: The purpose of this axis is to conforming European educational system to the specifies of nanotechnology in the higher level studies which also cover legal technical subjects such as patenting nanotechnology and encourage the young people in the EU to nanotech studies and research.[85] Actually the development of nanotechnology mainly depends upon the skilled manpower and interdisciplinary actions. The main aim of this phase is to transform the nanotech knowledge from academy to industry.[86] Patronizing the transformation of knowledge into Industrial Applications: In this phase the Commissions strategy and its Action Plan pointed to two issues connected to IP: Patents and Standardization.[87] In respect of patents, the Commissions Action Plan advocates to establish a patent monitoring system for nanotechnology and to harmonize the patent prosecution system especially ‘sufficiency of disclosure and ‘inventive step, (which are crucial in case of nanotechnology patents) among the leading patent offices in the world such as the European Patent Office (EPO), the US Patent and Trademarks Office (USPTO) and the Japan Patent Office.[88] Concerning standardization, the Commission encourages pre-normative research and development in combined actions with the activities of European Standard Bodies.[89] Integrate the Social Dimension: The purpose of this phase is to recall an EU strategy about ethical principles in respect of health, safety and environmental aspects in the development of nanotechnology and making a transparent approach by open dialogues with E.U. citizens and stakeholders.[90] The Commission has taken several actions to reflect the peoples expectations and take their views into account.[91] In February 2008, EC passed a recommendation of ‘Code of conduct for responsible nano-science and nano-technologies research which gives guidelines towards a responsible and open approach.[92] Every proposal considered for funding by the Commission must meet the requirements of ethical issues.[93] The Commission is also giving efforts to increase researchers awareness to the Code of Conduct on nanotechnology research. Actually the Commission seeks the nanotechnology research to reflect and comply with the basic ethical values described in the core European Agreements such as ‘the European Charter of Fundamental Rights. 2.0 Relationship between Nanotechnology and IP: IPRs play a significance role in the development of new technologies. IPRs are essential in the present technology-driven age.[94] For an international perspective, nanotechnology is presently one of the most effective new technologies, in terms of number of patent applications.[95] Moreover, competitors in the nascent nanotechnology industries employ trade secrets legislation to supplement their control over key technology and expertise. In spite of being less directly involved in the nanotechnology industry, copyright and trademark legislation are also affect competitors in nanotechnology markets as the companies use computer software for nanotechnology research and development. Moreover, companies are also active to give their products commercial identification and trademark is playing a great role in that respect. IP law yields the primary regulatory vehicle by which ownership, control and use of nanotechnology are managed. The basic purpose of IP law is to facilitate for creators or inventors and encourage continuation of further development and creation. Thus IP law plays an influential role in a new and highly divergent functioning field of research and development like nanotechnology.[96] IP law also plays an important role in the integration of nanotechnology development into commercial applications.[97] The next part investigates how nanotechnology is related to IPRs. Patent: Patent law give legal rights to inventors. For a patent right to be granted certain criteria should be fulfilled such as eligible subject matter, inventive step, novelty and usefulness or industrial application and lastly sufficient disclosure and description.[98] Patents are important to protect small, emerging technology business.[99] Most business enterprises need a quantity of patent portfolio as insurance towards their already risky investment.[100] These criteria are not technology specific and thus should also be fulfilled in case of nanotechnology inventions. As much of the research in nanotechnology has been conducted through multidisciplinary fields, it may challenge the present patent system. For an example, as its a newly adopted technology in the field of science the patent examiner may grant broad patent rights to the inventor which in the future may cause a great barrier in the development of nanotechnology and society may be deprived from the benefits of nanot echnology. Copyright: Copyright law protects original expressions of ideas of literary and artistic works but not for the ideas themselves.[101] The main key of copyright is the ‘originality of authorship.[102] The issues of copyright are mostly likely to arise in respect of nanotechnology regarding computer software programs which is likely to be used for nanotechnology research and development.[103] Trademarks: Trademark rights protect words, logos and any other type of commercial identifiers.[104] These marks help the public to identify the respective products or services of a company. It also helps customers from not being misled by deceptive use of marks. As many nanotechnology related companies will come into the market, trademarks will play an important role to identify the different company and their products which is most crucial for investment of a company. Trademarks also indicate the goodwill of the company. Trade Secrets: Trade secrets can be defined as ‘confidential information or knowledge which is not widely known and gives competitive advantages to its owner. Companies may be more interested to keep some information or know-how of their products as trade secrets because under patent law after the expiry of the protection period the product will come into public domain. For trade secrets there is no time limit and business advantages may come from by using trade secret protection wisely, or a combination of patents and trade secrets. The use of different forms of IP offers different options for developers of nanotechnology. While nanotechnology industry is highly patent oriented the possibility of vast legal battles over nanotechnology patents in the future is likely to be happen. It also should be kept in mind that aggressive assertion of IPRs can create obstacles in important research of nanotechnology.[105] Patent busting, generics, technical standards and open sources are a few of the leading examples of critical IP challenges to all technology, including nanotechnology.[106] The challenges of IPR management of nanotechnology are not only for the ownership of IP but also the possibility of huge economic value from nanotechnology. 3.0 Patentability of Nanotechnology-European Aspect: The recent advancement of industrial research and development in the nanotechnology field is a worldwide phenomenon. Since last few years national and international governmental authorities, research institutes and industrial companies have increasingly aware of nanotechnology as a driving force for innovation in different fields including chemistry, material science, biotechnology and electronics.[107] For nanotechnology, patents are the most used and by far most important form of IP.[108] Nanotechnology is incomparably among the most patentable technologies, in that it is exceptional in attributes and nascent.[109] The main attraction in nanotechnology patenting is not only its size but also its ‘unique cross-industry pattern. Nanotechnology is exceptional compared with other technologies because it does not originates in a single branch of science like biotechnology, information technology etc.[110] The main characteristic of nanotechnology is its size. Surprisingly this is nearly the first new field in almost a century in which basic ideas, i.e. ‘the basic building block was patented at the beginning.[111] Patent rights give the rights holder an opportunity to gain economic and other related profits for a certain period as a reward for the invention. In case of nanotech research and invention there is a need for huge long term investments thus patent rights play a substantial role to recoup the investment of a company. Without a clear and sound patent regulatory system, large companies will be reluctant to invest in the field of nanotechnology and the development of nanotechnology invention will be hampered. Its no doubt that the rapid growth of nanotechnology will result a multiple field of application and jurisdiction and obviously will create a legal challenge in future IP regimes. The most basic issue is that whether nanotech inventions are patentable or not? In this chapter the ‘patentability of nanotechnology will be discussed in the light of European legal instruments and the WTO TRIPS Agreement. All inventions are not patentable. A patentable subject matter might not be (a) an abstract idea; (b) laws of nature; and (c) physical phenomena.[112] As mentioned, to qualify the patentability of an invention certain conditions must be satisfied. i) patent eligible subject matter; ii) utility; iii) novelty; iv) non-obviousness; and v) sufficient disclosure. In addition to the already mentioned patentability criteria, the claims have to be clear, brief and must be supported by the description.[113] The application of the inventions requires disclosing the invention is such a way as a whole that a person skilled in the art is being capable to carry out the invention.[114] There are not separate patentability rules for nanotech inventions. Thus any patent connected with the nano-field must fulfill the general requirements of patentability.[115] 3.1 Procedures at the European Patent Office: In Europe, an applicant can file a patent application either in the national patent office or in the Europe

Academia and Classroom Essay

Question 1 1. 1 Conflict> The practice of recognizing and dealing with disputes in a rational, balanced and effective way. Conflict is an expressed struggle between at least two interdependent parties who perceive incompatible goals, scare resources, and interference from others in achieving their goals. † 1. 2 Decision- making > Is the choice of the most suitable way of solving a problem or handling a situation . 1. 3 Communication> Is a means by which the teacher and pupils’ different needs, feelings and attitudes are conveyed to each other in order to establish cooperation and achieve goals. 1. 4 Motivation> Is the process by means of which motives are provided by, amongst others, a manager or situation in order to bring about certain actions and thus to achieve certain goals. 1. 5 Leadership> Leadership consists of actions that help the group to complete its tasks successfully and maintain effective working relationships among its members. Leadership is a set of skills that anyone can acquire Question 2 2. 1. 1 AUTOCRATIC CLASSROOM MANAGEMENT STYLE When dealing with pupil behaviour the teacher will intervene and try to control the behaviour of the pupils. The teacher is mainly interested in the pupils’ completion of tasks and learning performance . Pupils’ participation in the classroom situation is limited to listening, working and doing. The following are some advantages of this approach: ? Some pupils may feel secure in this kind of situation. ? Because the teacher lays down fixed rules and procedures, pupils know what is expected of them and what they can expect in the classroom. The following are some disadvantages of this approach: ? The classroom atmosphere is characterised by competition, unwillingness to work together and poor discipline when pupils are left unsupervised. ? Creative thinking is suppressed. ? There is no cooperation. ? Pupils may develop a negative attitude towards the subject. 1 Student no : 43713009 EDA 201W Ass no : 2 719493 2. 1. 2 DEMOCRATIC CLASSROOM MANAGEMENT STYLE A democratic style of classroom management correlates with an interactive teaching style. This teaching style requires that teachers should have a sound knowledge of their subject and of human nature so that they can encourage their pupils to participate actively and meaningfully in teaching and learning activities. The control of pupil behaviour in the classroom is jointly controlled by the pupils and the teacher. As a management style it requires the teacher to maintain a balance between the task aspect and the human aspect of the classroom situation. Teaching and learning tasks are completed with the pupils’ willing cooperation and co responsibility which are the hallmarks of democratic classroom management. The following are some advantages: ? ? ? Pupils participate confidently in classroom activities. It encourages initiative and creativity. The classroom atmosphere is relaxed, yet productive. ? Pupils feel that they are involved in teaching activities. 2. 2 Five styles of conflict management ? Avoidance: avoiding conflict is a short-term solution because the conflict will not go away. Sometimes, however, avoidance could be a temporary measure to calm emotions. ? Giving in or accommodating: teachers who badly want the pupils to accept them use this style. With this style the real differences are underemphasized. Sometimes teachers have to give in to avoid hostility in the classroom and to ensure that the work can get done. ? Domination: teachers who want to impose their will on pupils use this style. In the long run this style is seldom effective, although teachers sometimes have to dominate. ? Compromise or settle: this style is marked by a search for compromises and settlement. The teacher will try to meet everyone halfway and to let the majority view prevail. Because a settlement might not satisfy everybody, the dissatisfaction could again cause conflict at a later stage. ? Integrate or collaborate: this style is also known as the problem-solving approach. The parties cooperate in order to find a satisfactory solution. 2. 3 A proper balance between the: task-oriented and the human relations aspects, required in every teaching-learning situation , enables teachers to create a teaching-learning situation with a positive atmosphere. Maintaining a balance between the structural (formal) and human relations (informal) aspects requires a holistic approach to classroom management. The combination and integration of these two dimensions represent the actual structure of the classroom situation, which includes all areas of the teacher’s management task. These studies revealed a clear correlation between classroom atmosphere and pupil performance of grade 9 and grade 10 pupils in 12 secondary schools in Ontario as follows: ? Classroom atmosphere has a significant influence on pupil performance. ? Although the personal and social characteristics of pupils are important factors in their school performance, classroom atmosphere is sometimes more important. ? The psychosocial and academic aspects of teaching are interrelated. 2 Student no : 43713009 EDA 201W Ass no : 2 719493 ? Variables that relate directly to teaching-learning activities in the classroom have a special, unique influence on pupil performance. The following are the guidelines for teachers to cultivate positive attitudes in their pupils: ? Put the pupils in the centre. ? Respect pupils’ opinions and treat all pupils respectfully. ? Give pupils a group feeling. ? Help pupils to feel secure in school. ? Make sure that pupils understand their assignments. ? Realise that pupils are children, not adults. ? Deal with individual behaviour problems in private interviews with the pupil rather than in front of the whole class. ? Involve pupils in decision making where appropriate. ? Do not label pupils. 3 Student no : 43713009 EDA 201W Ass no : 2 719493 2. 4 CLASSROOM POLICY 1. In all instances, civility and respect for classmates and the instructor are expected. 2. Book bags, briefcases, etc. are not allowed on your desk during class. They must remain on the floor near your chair. 3. You may not use cell phones in class. a. All ringers must be turned off. b. You may not text message, place or answer calls. c. All earphones, headphones, headsets or any other accessory for your cell phone may not be used in class – that means, out of sight and not on your head or in your ear. 4. You may not use any device (for example, IPod, MP3 player) to listen to or view music or other programming in class. 5. You will be asked to leave class if you disregard classroom policy. ATTENDANCE / WITHDRAWAL POLICY 1. Since the course is conducted in a seminar format, your attendance is mandatory. 2. You will sign the Attendance Signature sheet at the beginning of each class. 3. Your class participation points may be reduced from if you are late in class. 4. You may be withdrawn from COS 133 if you are absent from 20% of the class. LATE WORK 1. No late work will be accepted. MAKE-UP QUIZ POLICY 1. There are no quiz make-ups. No exemptions. GRADING POLICY 1. Your grade for COS 133 will be based on the points you accumulate for assignments, quizzes, and class participation. 2. Your grade for COS 133 is calculated as follows: Topic 1. Assignments 2. Quizzes 3. Classroom Participation Weight 30% 55% 15% 4 Student no : 43713009 EDA 201W Ass no : 2 719493. Topic Weight A 94 -100 1. Assignments 30% A- 90 – 93 2. Quizzes 55% B+ 87 – 89 3. Classroom Participation 15% B 84 – 86 B- 80 – 83 C+ 77 – 79 C 74 – 76 C- 70 – 73 D+ 67 – 69 D 64 – 66 D- 60 – 63 F < 60 1. Assignments = 30 Points COS assignments consist of a variety of activities designed to promote a successful college experience at MCC. Your assignments will consist of reading textbook chapters and answering related exercise questions. In addition, you may be using your MCC student email to submit Web assignments. Assignments are due at the beginning of the class. However, you may submit your assignments before the due date. Distribution of points are as follows: 10 textbook assignments (3 points each) = 30 points 2. Quizzes = 55 Points Quizzes are based on your chapter reading assignments. o You may use your textbook to answer the questions. However, be well prepared for a very challenging quiz. o If you are late for class and miss the quiz, you will receive a zero for the quiz. Distribution of points is as follows: o 11 textbook quizzes (5 points each) = 55 points 3. Classroom Participation = 15 Points Classroom participation points are earned by behaviors that demonstrate o prompt attendance for class 3 o active listening o positive involvement in small group work o thoughtful contributions during whole class discussions o civility and respect for classmates and the instructor Distribution of points is as follows: o 1 point per week = 15 points o You cannot earn classroom participation points if you are absent. MCC REGULATIONS AND POLICIES Academic Honesty Policy In the academic process, it is assumed that intellectual honesty and integrity are basic responsibilities of any student. However, faculty members should accept their correlative 5 Student no : 43713009 EDA 201W Ass no : 2 719493 responsibility to regulate academic work and to conduct examination procedures in such a manner as not to invite violations of academic honesty. Such violations consist mainly of cheating and plagiarism. For more details regarding MCC’s Academic Honesty policy regarding definitions, disciplinary action, and procedure for appeal check the MCC Catalog and Student Handbook or MCC Website. Policy Statement on Sexual Harassment 1. Monroe Community College strives to recognize human dignity and therefore does not tolerate sexual harassment or any other type of harassment within or connected to this institution. 2. Sexual harassment is illegal and unfairly interferes with the opportunity for all persons, regardless of gender, to have a comfortable and productive education and work environment. 3. We are committed to taking all reasonable steps to prevent sexual harassment and to discipline those who do harass. Code of Conduct The following actions or conducts are prohibited. 1. The obstruction or disruption of any College function or activity, including the classroom instructional environment, administration of the parking program and service functions and activities. 2. The detention, physical abuse or intimidation of any person, or threat thereof, or any 4 conduct which threatens or endangers the health, safety, or welfare of any person on College-owned or operated property or at College-sponsored activities. 3. The use of obscene or abusive language or any other means of expression, language, or action which may reasonably be expected to provoke or encourage physical violence by other persons. 4. The refusal to obey any reasonable or lawful request, order, or directive of a College public safety officer, a teacher, College administrator, or any other identified representative of the College. MCC LEARNING CENTERS 1. Monroe Community College has a number of Learning Centers at Brighton (for example, Accounting, Math, Psychology, Writing, the Electronic Learning Center, etc. ) and at Damon (for example, the Integrated Learning Center, Electronic Learning Center, etc.). 2. Learning centers are staffed with instructional personnel and may be equipped with computers and software to assist students. 3. It is recommended that students use the Learning Centers to get additional help with concepts learned in the classroom and with their homework. SERVICES FOR STUDENTS WITH DISABILITIES 1. Students with a documented learning difficulty should make an appointment with the Coordinator of Services for Students with Disabilities on the Brighton or Damon Campus to arrange for support services. 2. All deaf or hard of hearing students should contact the Counseling and Advising Center. 3. You must provide the instructor with appropriate documentation regarding accommodations within the first two weeks of class. EMERGENCY CLOSINGS 1. If the College is closed due to inclement weather or some other emergency, all Rochester area radio and television stations will be notified no later than 5:30 a. m. 2. In addition, the homepage on the MCC website (www. monroecc. edu) will display a message indicating the College is closed. 3. Please do not call the College to avoid overloading the telephone lines. 5 6 Student no : 43713009 EDA 201W Ass no : 2 719493 CLASS CANCELLATION To access a list of daily class cancellations, you may 1. Call the Public Safety Department (292-2066) at MCC, press 1 for a list of cancelled classes at Brighton and press 2 for a list of cancelled classes at Damon; 2. Go to the Internet, access MCC, go to the A-Z listing to C for Class Cancellations and see the list of cancellations; 3. Check your student email for a cancellation notice from your instructor 6 COURSE SYLLABUS AGREEMENT Detach and return this signed sheet to Professor Rodriguez. ______________________________________ M00______________________ Student’s Printed Name Student MCC College ID Number COS 133 Section Number: _________ Semester / Year: _____________ The Course Syllabus 1. The Course Syllabus (course information sheet) is a written legal covenant between you and your professor. 2. It clarifies the professor’s expectations and your responsibilities. Your professor expects you to meet deadlines for assignments, papers, projects and tests. 3. It is your responsibility to review the course syllabus and clarify any aspect of the syllabus. Therefore, read it carefully and ask questions you may have about its content. Check the appropriate box. I have read the course information sheet for COS 133 – Introduction to College Studies. I understand my responsibilities for this course. I do not have any questions. I do not understand the requirements stated in the COS 133 Course Information Sheet. I will schedule an appointment to discuss my questions with my professor. List your questions for discussion here: ______________________________________ _____________________ Signature Date. Academia and Classroom Essay Question 1 1. 1 Conflict> The practice of recognizing and dealing with disputes in a rational, balanced and effective way. Conflict is an expressed struggle between at least two interdependent parties who perceive incompatible goals, scare resources, and interference from others in achieving their goals. † 1. 2 Decision- making > Is the choice of the most suitable way of solving a problem or handling a situation . 1. 3 Communication> Is a means by which the teacher and pupils’ different needs, feelings and attitudes are conveyed to each other in order to establish cooperation and achieve goals. 1. 4 Motivation> Is the process by means of which motives are provided by, amongst others, a manager or situation in order to bring about certain actions and thus to achieve certain goals. 1. 5 Leadership> Leadership consists of actions that help the group to complete its tasks successfully and maintain effective working relationships among its members. Leadership is a set of skills that anyone can acquire Question 2 2. 1. 1 AUTOCRATIC CLASSROOM MANAGEMENT STYLE When dealing with pupil behaviour the teacher will intervene and try to control the behaviour of the pupils. The teacher is mainly interested in the pupils’ completion of tasks and learning performance . Pupils’ participation in the classroom situation is limited to listening, working and doing. The following are some advantages of this approach: ? Some pupils may feel secure in this kind of situation. ? Because the teacher lays down fixed rules and procedures, pupils know what is expected of them and what they can expect in the classroom. The following are some disadvantages of this approach: ? The classroom atmosphere is characterised by competition, unwillingness to work together and poor discipline when pupils are left unsupervised. ? Creative thinking is suppressed. ? There is no cooperation. ? Pupils may develop a negative attitude towards the subject. 1 Student no : 43713009 EDA 201W Ass no : 2 719493 2. 1. 2 DEMOCRATIC CLASSROOM MANAGEMENT STYLE A democratic style of classroom management correlates with an interactive teaching style. This teaching style requires that teachers should have a sound knowledge of their subject and of human nature so that they can encourage their pupils to participate actively and meaningfully in teaching and learning activities. The control of pupil behaviour in the classroom is jointly controlled by the pupils and the teacher. As a management style it requires the teacher to maintain a balance between the task aspect and the human aspect of the classroom situation. Teaching and learning tasks are completed with the pupils’ willing cooperation and co responsibility which are the hallmarks of democratic classroom management. The following are some advantages: ? ? ? Pupils participate confidently in classroom activities. It encourages initiative and creativity. The classroom atmosphere is relaxed, yet productive. ? Pupils feel that they are involved in teaching activities. 2. 2 Five styles of conflict management ? Avoidance: avoiding conflict is a short-term solution because the conflict will not go away. Sometimes, however, avoidance could be a temporary measure to calm emotions. ? Giving in or accommodating: teachers who badly want the pupils to accept them use this style. With this style the real differences are underemphasized. Sometimes teachers have to give in to avoid hostility in the classroom and to ensure that the work can get done. ? Domination: teachers who want to impose their will on pupils use this style. In the long run this style is seldom effective, although teachers sometimes have to dominate. ? Compromise or settle: this style is marked by a search for compromises and settlement. The teacher will try to meet everyone halfway and to let the majority view prevail. Because a settlement might not satisfy everybody, the dissatisfaction could again cause conflict at a later stage. ? Integrate or collaborate: this style is also known as the problem-solving approach. The parties cooperate in order to find a satisfactory solution. 2. 3 A proper balance between the: task-oriented and the human relations aspects, required in every teaching-learning situation , enables teachers to create a teaching-learning situation with a positive atmosphere. Maintaining a balance between the structural (formal) and human relations (informal) aspects requires a holistic approach to classroom management. The combination and integration of these two dimensions represent the actual structure of the classroom situation, which includes all areas of the teacher’s management task. These studies revealed a clear correlation between classroom atmosphere and pupil performance of grade 9 and grade 10 pupils in 12 secondary schools in Ontario as follows: ? Classroom atmosphere has a significant influence on pupil performance. ? Although the personal and social characteristics of pupils are important factors in their school performance, classroom atmosphere is sometimes more important. ? The psychosocial and academic aspects of teaching are interrelated. 2 Student no : 43713009 EDA 201W Ass no : 2. 719493 ? Variables that relate directly to teaching-learning activities in the classroom have a special, unique influence on pupil performance. The following are the guidelines for teachers to cultivate positive attitudes in their pupils: ? Put the pupils in the centre. ? Respect pupils’ opinions and treat all pupils respectfully. ? Give pupils a group feeling. ? Help pupils to feel secure in school. ? Make sure that pupils understand their assignments. ? Realise that pupils are children, not adults.? Deal with individual behaviour problems in private interviews with the pupil rather than in front of the whole class. ? Involve pupils in decision making where appropriate. ? Do not label pupils. 3 Student no : 43713009 EDA 201W Ass no : 2 719493 2. 4 CLASSROOM POLICY 1. In all instances, civility and respect for classmates and the instructor are expected. 2. Book bags, briefcases, etc. are not allowed on your desk during class. They must remain on the floor near your chair. 3. You may not use cell phones in class. a. All ringers must be turned off. b. You may not text message, place or answer calls. c. All earphones, headphones, headsets or any other accessory for your cell phone may not be used in class – that means, out of sight and not on your head or in your ear. 4. You may not use any device (for example, IPod, MP3 player) to listen to or view music or other programming in class. 5. You will be asked to leave class if you disregard classroom policy. ATTENDANCE / WITHDRAWAL POLICY 1. Since the course is conducted in a seminar format, your attendance is mandatory. 2. You will sign the Attendance Signature sheet at the beginning of each class. 3. Your class participation points may be reduced from if you are late in class. 4. You may be withdrawn from COS 133 if you are absent from 20% of the class. LATE WORK 1. No late work will be accepted. MAKE-UP QUIZ POLICY 1. There are no quiz make-ups. No exemptions. GRADING POLICY 1. Your grade for COS 133 will be based on the points you accumulate for assignments, quizzes, and class participation. 2. Your grade for COS 133 is calculated as follows: Topic 1. Assignments 2. Quizzes 3. Classroom Participation Weight 30% 55% 15% 4 Student no : 43713009 EDA 201W Ass no : 2 719493 Topic Weight A 94 -100 1. Assignments 30% A- 90 – 93 2. Quizzes 55% B+ 87 – 89 3. Classroom Participation 15% B 84 – 86 B- 80 – 83 C+ 77 – 79 C 74 – 76 C- 70 – 73 D+ 67 – 69 D 64 – 66 D- 60 – 63 F < 60 1. Assignments = 30 Points COS assignments consist of a variety of activities designed to promote a successful college experience at MCC. Your assignments will consist of reading textbook chapters and answering related exercise questions. In addition, you may be using your MCC student email to submit Web assignments. Assignments are due at the beginning of the class. However, you may submit your assignments before the due date. Distribution of points are as follows: 10 textbook assignments (3 points each) = 30 points 2. Quizzes = 55 Points Quizzes are based on your chapter reading assignments. o You may use your textbook to answer the questions. However, be well prepared for a very challenging quiz. o If you are late for class and miss the quiz, you will receive a zero for the quiz. Distribution of points is as follows: o 11 textbook quizzes (5 points each) = 55 points 3. Classroom Participation = 15 Points Classroom participation points are earned by behaviors that demonstrate o prompt attendance for class 3 o active listening o positive involvement in small group work o thoughtful contributions during whole class discussions o civility and respect for classmates and the instructor Distribution of points is as follows: o 1 point per week = 15 points o You cannot earn classroom participation points if you are absent. MCC REGULATIONS AND POLICIES Academic Honesty Policy In the academic process, it is assumed that intellectual honesty and integrity are basic responsibilities of any student. However, faculty members should accept their correlative 5 Student no : 43713009 EDA 201W Ass no : 2 719493 responsibility to regulate academic work and to conduct examination procedures in such a manner as not to invite violations of academic honesty. Such violations consist mainly of cheating and plagiarism. For more details regarding MCC’s Academic Honesty policy regarding definitions, disciplinary action, and procedure for appeal check the MCC Catalog and Student Handbook or MCC Website. Policy Statement on Sexual Harassment 1. Monroe Community College strives to recognize human dignity and therefore does not tolerate sexual harassment or any other type of harassment within or connected to this institution. 2. Sexual harassment is illegal and unfairly interferes with the opportunity for all persons, regardless of gender, to have a comfortable and productive education and work environment. 3. We are committed to taking all reasonable steps to prevent sexual harassment and to discipline those who do harass. Code of Conduct The following actions or conducts are prohibited. 1. The obstruction or disruption of any College function or activity, including the classroom instructional environment, administration of the parking program and service functions and activities. 2. The detention, physical abuse or intimidation of any person, or threat thereof, or any 4 conduct which threatens or endangers the health, safety, or welfare of any person on College-owned or operated property or at College-sponsored activities. 3. The use of obscene or abusive language or any other means of expression, language, or action which may reasonably be expected to provoke  or encourage physical violence by other persons. 4. The refusal to obey any reasonable or lawful request, order, or directive of a College public safety officer, a teacher, College administrator, or any other identified representative of the College. MCC LEARNING CENTERS 1. Monroe Community College has a number of Learning Centers at Brighton (for example, Accounting, Math, Psychology, Writing, the Electronic Learning Center, etc. ) and at Damon (for example, the Integrated Learning Center, Electronic Learning Center, etc. ). 2. Learning centers are staffed with instructional personnel and may be equipped with computers and software to assist students. 3. It is recommended that students use the Learning Centers to get additional help with concepts learned in the classroom and with their homework. SERVICES FOR STUDENTS WITH DISABILITIES 1. Students with a documented learning difficulty should make an appointment with the Coordinator of Services for Students with Disabilities on the Brighton or Damon Campus to arrange for support services. 2. All deaf or hard of hearing students should contact the Counseling and Advising Center. 3. You must provide the instructor with appropriate documentation regarding accommodations within the first two weeks of class. EMERGENCY CLOSINGS 1. If the College is closed due to inclement weather or some other emergency, all Rochester area radio and television stations will be notified no later than 5:30 a. m. 2. In addition, the homepage on the MCC website (www. monroecc. edu) will display a message indicating the College is closed. 3. Please do not call the College to avoid overloading the telephone lines. 5 6 Student no : 43713009. EDA 201W Ass no : 2 719493 CLASS CANCELLATION To access a list of daily class cancellations, you may 1. Call the Public Safety Department (292-2066) at MCC, press 1 for a list of cancelled classes at Brighton and press 2 for a list of cancelled classes at Damon; 2. Go to the Internet, access MCC, go to the A-Z listing to C for Class Cancellations and see the list of cancellations; 3. Check your student email for a cancellation notice from your instructor 6 COURSE SYLLABUS AGREEMENT Detach and return this signed sheet to Professor Rodriguez. ______________________________________ M00______________________ Student’s Printed Name Student MCC College ID Number COS 133 Section Number: _________ Semester / Year: _____________ The Course Syllabus 1. The Course Syllabus (course information sheet) is a written legal covenant between you and your professor. 2. It clarifies the professor’s expectations and your responsibilities. Your professor expects you to meet deadlines for assignments, papers, projects and tests. 3. It is your responsibility to review the course syllabus and clarify any aspect of the syllabus. Therefore, read it carefully and ask questions you may have about its content. Check the appropriate box. I have read the course information sheet for COS 133 – Introduction to College Studies. I understand my responsibilities for this course. I do not have any questions. I do not understand the requirements stated in the COS 133 Course Information Sheet. I will schedule an appointment to discuss my questions with my professor. List your questions for discussion here: ______________________________________ _____________________ Signature Date 7.

Identifying a De Facto Director - Free Essay Example

Sample details Pages: 9 Words: 2551 Downloads: 4 Date added: 2017/06/26 Category Law Essay Type Narrative essay Did you like this example? Company Law à ¢Ã¢â€š ¬Ã‹Å"The decision of the Supreme Court in The Commissioners for HM Revenue and Customs v Holland (2010) and the case-law subsequently, has brought much needed clarity to the questions of how to identify whether someone is a de facto director, and why it is necessary for the law to be able to identify a person as a de facto director.à ¢Ã¢â€š ¬Ã¢â€ž ¢ A de facto director is a person who has not been formally and validly appointed and registered at the Companies House as a full de jure director but they will be treated as one by the courts if a dispute would be to arise since the have assumed the status and functions of a company director.[1] They will be subject to the same duties that a de jure director would be therefore it is necessary to establish when a person is acting as one so they can be held accountable should any liabilities arise out of a breach of an obligation. This essay will consider whether the recent Supreme Court decis ion in the Commissioners for HM Revenue and Customs[2] (Holland) provided any clarity regarding de facto directorship, if and how the principles were applied in subsequent cases and why is it important to identify a de facto director. This case provided the court with an opportunity to consider issues surrounding the concept of de facto directorships. Don’t waste time! Our writers will create an original "Identifying a De Facto Director" essay for you Create order The main concern of the case what relatively narrow; whether a director of a corporate director should be considered to be a de facto director of the subsequent company. In this case, Mr Holland created a scheme to provide administration and tax services to contractors who did not wish to set up and run their own companies. They became employees with non-voting rights in exchange for a salary and dividends. This scheme had a complex structure; Holland and his wife owned all of the shares in PS LTD which owned all of the share capital in P(DS) and P(SS) who were respectively the corporate director and secretary of 42 composite companies. Hollands intention was for the companies to pay a lower tax rate, however, the scheme failed and the companies went insolvent. When calculating the distributable profit, the higher tax rate was not accounted for so the dividends that were paid out were unlawful. The HMRC brought a claim against Holland under s212 Insolvency Act[3] on the basis he had been acting as a de facto director of each company thus breached his fiduciary duties by paying out dividends. The HMRC appealed to the Supreme Court where a bare majority of 3;2 dismissed it; they held that Holland was not acting as a de facto director for the subsequent companies. However, the judges all applied different means of reasoning in reaching this decision. Several different approaches to one case suggests that there was a high degree of ambiguity in the law and there was a lack of existing guiding principles. One reason could be that there is a lack of statutory definition and guidance existing so it can be hard to identify them. It is believed they fall into the circular, incomprehensible definition of director which is included in the Company Act 2006[4]; any person occupying the position of a director by whatever name called. This is tautological and unhelpful[5] in identifying a de facto director therefore it has essentially been left up to judges to aid our unde rstanding of the factors, such as nature and extent of control, which constitute a de facto directorship. However, court guidelines have not always been of a uniform nature. In reaching the decision in Holland[6], many earlier cases regarding de facto directors were considered. However, Lord Hope recognised that there were limits to their application; it is plain from the authorities that the circumstances vary widely from case to case[7]. He endorsed the consensus that no single test could be created as the result is based so heavily on the facts of the case. This clarifies that judges such as Jacob J in Tjolle[8] were accurate in saying how it may be difficult to postulate any one decisive test the court takes into account all the relevant factors. Holland[9] held that declaring someone a de facto director is very much a question of fact and degree therefore there cannot be set criteria which needs to be satisfied. However, one factor that has a high degree of significant attac hed is whether there was an assumption of responsibility to act as a director of the subject companies. However, as Lord Walker highlighted[10] a person does not need to be formally appointed as a director to be construed as such it is more important to focus on what they id rather than what their title was. The majority did not believe that Holland[11] had assumed responsibility of that a de facto director would have held however, they failed to provide sufficient details on what would have been sufficient to constitute it. This means that Holland[12] did not completely solve the issue of uncertainty in the concept as consistent guidance is still lacking. Collins provided some help by summarising three factors that would be relevant in deciding whether someone would be held to be acting as a de facto director. They include whether they were a sole director or acting on equal footing with somebody that had been appointed as a true director,[13] whether there was a holding out by the company[14] and whether the individual was part of the corporate governance system.[15] However, Sealy[16] has noted the confusion and uncertainty that arose from the judgements; particularly what is regarded as the obiter dicta. This is due to the ill-defined criteria that the judges included- they included relevant factors but failed to give a reasonable explanation of what they mean therefore there is still a significant lack of clarity regarding how it could be applied. This means that it is still largely unclear what constitutes the assumption of responsibility test. As a result, Holland[17] has clarified that there cannot be a single test but has failed to be as specific regarding anything else. This could be because it is not actually possible to create a comprehensive list of all the relevant factors judges could consider since the decisions of the case are so fact dependant that all the possible circumstances could not be covered and the test provide specific enough gui dance. This leaves it open and gives judges the flexibility to ensure all the facts of the case are considered when making their decision. Another main focus in the judgements was on the principle of separate legal entities. This is a well established principle that a company is its own legal person, separate and distinct from that of its directors and shareholders. When considering this principle, they placed much of their focus on the case of Re Hydrodam[18] and Lord Hope[19] upheld elements Millet Js judgement, particularly the requirement of something more: Attendance of board meetings and voting, with others, may in certain limited circumstances expose a director to personal liability to the company of which he is a director or its creditors. But it does not, without more, constitute him a director of any company of which his company is a director. [20] This means that simply being involved in the companys decision making process as a director of a corporate director will not be enough to be regarded as a de facto director, something more is required. The guiding principle is that as long as he had performed relevant acts entirely within the ambit of the discharge of his duties and responsibilities as director of the corporate director, it was to that capacity that his acts had to be attributed.[21] There was little elaboration regarding what duties and responsibilities are considered to be a directors therefore there is the problem that it is vague. Additionally, the principle of separate legal entity goes against the principle that an individual should be held accountable for their control over the affairs of the company even though they were never formally appointed.[22] This means that the courts appear to be encouraging the use of corporate directorships to be done in a way which involves people developing complex structures in order to be shielded from being considered a de facto director. The minority disagreed with the majority regarding this issue. They believed that the case was not compatible since the facts were significantly different and the decisions are based so heavily on the facts in cases such as these. They argued that Holland had satisfied the something more requirement since he was the sole guiding mind of Paycheck and had complete control over the companies decisions and the power to pay out the dividends without having to consult anybody else. As a result the decision of the case is not logical; a sole director of a corporate director would be a de facto director in most circumstances since he is expected to be making all of the companies important decisions. Despite the decision not making sense logically, it helped to highlight the courts thought process and provide some direction. By following the case of Hydrodam it rejected the idea in Secretary State v Hall[23] which is wrong in principle since it held that a person was a de facto director of the company for acting as a director of the subje ct company. It is now clear that this alone is not enough to be considered a de facto director. The principles that were applied in Holland are being applied to more recent cases of similar issuing suggesting that it is clear enough to follow. In the case of Smithton v Naggar[24] the Court of Appeal cited Lord Collins inHolland statingthere is no one definitive test for identifying whether somebody is ade factodirector. Instead, it must be asked whether that person was part of the corporate governance system of the company and whether he assumed the status and function of a director so as to make himself responsible as if he were a director. It also used some of the relevant criteria that Collins had included for example if there is an overlap between shadow and de facto directors, whether the person assumed responsibility to act as a director and if he was held out as such. The Court of Appeal said that, ordinarily, it will be important for the court to determine a companyà ¢Ã¢ ‚ ¬Ã¢â€ž ¢s corporate governance system to decide whether an individual has assumed the responsibility of a director. This supports the idea that Holland has clarified the law as there is suddenly some consistency arising between cases and being able to hold a de facto director accountable for their actions. Moreover the case of Elsworth Ethanol v Hartely[25] looked at the concept of de facto directorships. The test for de facto directors needed to take all the relevant factors into account and highlighted some of the significant ones similar to Holland, for example equal footing, holding out and part of the corporate governing structure. These cases show that the courts are now considering the same questions when looking at the cases yet still applying it to the facts. As identified above, a de factor director owes the same duties and obligations to the company as a formally appointed de jure director. This means that any statutory duties and prohibitions that apply to a de jure director will be imposed on him if he is found to be undertaking the role of a de facto director in the courts. This means that it is necessary to be able to identify them so that they can be held responsible for their actions. If they cannot be identified then they cannot be held responsible and will appear that the courts are permitting the defence that they were never appointed therefore they cannot be held accountable for their actions. This would allow directors to control the company without having any concern for the consequences that would be attached to their actions if they were a de jure director. However, it could be argued that the case of Holland[26] has not provided any help in being able to identify a de facto director instead it has produced an outcome that allows people to hide behind the structure of a corporate directorship in order to avoid being held liable for acting as a director. In conclusion, the law regarding de facto directors has been complicat ed by the range of different court decisions. It could be argued that Holland[27] has brought some clarity to this aspect of the law by recognising that there is not one test that can be applied to all cases since the decision incorporates the fact so much. It also provides further guidance by stating some concepts that could be considered. However, since these have been criticised for being vague and ill-defined it could be argued that there is still much room for improvement in this area of law for example to clarify what some of the regularly used terms such as corporate governance structure is. Further developments may start to happen as subsequent cases have begun to apply the principles that Holland[28]created meaning that it will get clearer rather than simply expanded since that would now be considered a matter for legislatures. [1] Re Kaytech International PLC[1998] B.C.C 390 [2] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [3] Insolvency Act 1986 s 212 [4] Companies Act 2006 s 250 [5] Ji Lian Yap, De facto directors and corporate directorships [2012] J.B.L 579, 586 [6] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [7] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [8] Secretary of State for Trade and Industry v Tjolle[1998] B.C.C 282 (C.D) [9] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [10] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [11] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [12] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [13] Re Richborough Furniture, LTD Secretary of State for Trade and Industry v Stokes Or s [1996] B.C.C. 155 [14] Secretary of State for Trade and Industry v Tjolle [1998] 1 BCLC 333 [15] Secretary of State for Trade and Industry v Tjolle [1998] 1 BCLC 333, at pp 343à ¢Ã¢â€š ¬Ã¢â‚¬Å"344, approved in Re Kaytech International plc [1999] 2 BCLC 351 , 423 [16] Len Sealy Case comment: paycheck services 3 LT the Supreme Court reviews the Concept of the de facto Director (2001_ 287 Company Law newsletter 1 [17] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [18] Re Hydrodam (Corby) Ltd (In Liquidation)[1993] B.C.C 161 (CD) [19] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [20] Re Hydrodam (Corby) Ltd (In Liquidation)[1993] B.C.C 161 (CD) [21] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [22] Ji Lian Yap, De facto directors and corporate directorships [2012] J.B.L 579, 579 [23] Secretary of State for Trade and Industry v Hall [2006] B.C.C 190 [24] Smithton Ltd v Naggar and others[2014] EWCA Civ 939. [25] Elsworth Ethanol Company Ltd and another v Ensus Ltd and others [2014] EWHC99 (IPEC)3 February 2014. [26] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [27] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C) [28] Revenue and Customs Commissioners v Holland and another[2010] 1 W.L.R 2793 (S.C)