UCC Issues: Excluded Property and Anti-assignment Provisions | Practical Law

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UCC Issues: Excluded Property and Anti-assignment Provisions

Practical law practice note 0-567-7345  (approx. 8 pages).

ucc late assignments

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Are there any circumstances under which i can submit a late exam/assessment appeal.

Only in very exceptional circumstances and by the agreement of the Examinations Appeals Committee will a student be permitted to submit an appeal outside of the two weeks appeal window. There is a ‘permission to submit an appeal late’ application form which must be submitted to the Examination Appeals Officer who will then ask the EAC to consider.

For further information please see exam appeals, mitigation, and re-checks .

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Ucc assignment and federal uspto assignment: one word, two meanings.

UCC Assignment and USPTO Assignment - Intellectual Property Due Diligence

Fairly frequently, I am asked the following question:

“Do assignment filings made with the USPTO have the same effect as assignment filings made under Article 9 of the Uniform Commercial Code?”

While in certain situations the answer is yes, the more helpful and short answer is no . UCC assignments are typically filed centrally or locally in each state, IP filings are made at the federal level. Moreover, the word ‘assignment’ may have a different meaning. 

I’ll explore some of the similarities and differences between Article 9 assignments and assignments made with the U.S. Patent and Trademark Office (USPTO) to explain why.

What is an Assignment?

Let's start with setting the scope of what we mean by the term ‘assignment’. When used with respect to property, particularly in the legal world, assignment is defined as “the act of transferring an interest in property or some right (such as contract benefits) to another”.

UCC Assignment

Article 9 of the  Uniform Commercial Code (UCC)  allows a secured party (SP) to file assignments via UCC3 amendments. In the UCC Article 9 world, an assignment (UCC3) is linked to the initial financing statement (UCC1) in the public record so that the relationship between the two filings is clear. Both filings, the UCC1 and UCC3, are indexed together so that a search of the public record by a debtor name will reveal both the financing statement and the amendment in one search.

There are several types of UCC assignment filings a secured party may make with the appropriate central filing office and/or local filing office: 

  • The secured party (assignor) may assign all of its rights to another party (assignee). (This is considered a full assignment.)
  • The secured party may assign the rights to some portion or percentage of all the collateral covered by the initial UCC financing statement to another party. (A partial assignment.)
  • The secured party may assign the rights of the 100% interest in a  portion  of the collateral to another party. (Also a partial assignment.)

USPTO Assignment

Like the rights to security interests that may be fully or partially assigned under the UCC,  intellectual property (IP) , such as patents and trademarks, may also have ownership rights transferred in full or in part on the public record at the USPTO. In both cases, when an IP or UCC assignment filing is made, the filings end up in the public record so that searchers can find them.

At the USPTO, however, assignments and other changes are not directly linked on one index when searching by name, which is ordinarily how due diligence searching is conducted. A name search of the USPTO index will not yield one set of complete results containing both trademark applications and registrations and all trademark assignment filings. Separate searches are needed in different sections of the USPTO website. Once those searches are completed, a searcher may need to manually review the results in order to determine if there is a parent-child relationship between the records.

This is also important to note because an IP assignment can be filed before a patent is granted or a trademark application and registration appears on the USPTO records, because it might still be going through the review process at the USPTO.

On top of that, some filings categorized as ‘assignments’ at the USPTO, because they are indexed in the assignments database, are not assignments by definition. In other words,  a filing on the USPTO assignment database may NOT be transferring rights in full or in part . This means that search results will include actual assignments and other records that are not assignments in the true sense of the rights of transfer. 

USPTO Assignment Recordation Examples

So, what other filings are included as ‘assignments’ at the USPTO that are not really assignments? As an example, let’s say that the owner of IP changes their name while retaining ownership in their IP. Searching either of the assignment indexes at the USPTO may include name change results. Technically, this is not an assignment by definition – there was no transfer of rights – but the name change is filed on the assignment index. A security interest in IP is another example of a type of lien filing found on the USPTO assignments database but is not, by definition, an assignment.

Adding to the confusion, IP filers can choose to file using the option of ‘Other’ and can enter a conveyance type not already provided as a standard selection, which means that almost anything can be included on the ‘assignment’ records at the USPTO. 

A Rule of Thumb for UCC and IP Assignments

The main point to take away from this discussion is that while assignments of UCCs are always assignments, assignments of IP are not as clear. Assignments of UCCs are always linked to the initial financing statements and are usually reflected in a single search, but assignments of IP filings are found on a different USPTO database from the trademark application and registration database, and patent grant and published pending patent databases, which all require separate searches (and thus, yield separate search results) on the USPTO website. It is necessary for the searcher to match up IP assignments to the parent record, if there is a parent record available.

The terminology may appear the same, but the meaning – and the search processes – for USPTO assignments and UCC assignments are completely different.

For insight on how intellectual property due diligence dovetails with more traditional types of searches, access our free webinar below:

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This content is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Article 9 Filing, Searching and Due Diligence , UCC , Intellectual Property Due Diligence

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§ 3-602. PAYMENT.

(a) Subject to subsection (b), an instrument is paid to the extent payment is made (i) by or on behalf of a party obliged to pay the instrument, and (ii) to a person entitled to enforce the instrument. To the extent of the payment, the obligation of the party obliged to pay the instrument is discharged even though payment is made with knowledge of a claim to the instrument under Section 3-306 by another person.

(b) Subject to subsection (e) a note is paid to the extent payment is made by or on behalf of a party obliged to pay the note to a person that formerly was entitled to enforce the note only if at the time of the payment the party obliged to pay has not received adequate notification that the note has been transferred and that payment is to be made to the transferee. A notification is adequate only if it is signed by the transferor or the transferee; reasonably identifies the transferred note; and provides an address at which payments subsequently can be made. Upon request, a transferee shall seasonably furnish reasonable proof that the note has been transferred. Unless the transferee complies with the request, a payment to the person that formerly was entitled to enforce the note is effective for purposes of subsection (c) even if the party obliged to pay the note has received a notification under this paragraph.

(c) Subject to subsection (e), to the extent of a payment under subsections (a) and (b), the obligation of the party obliged to pay the instrument is discharged even though payment is made with knowledge of a claim to the instrument under Section 3-306 by another person.

(d) Subject to subsection (e), a transferee, or any party that has acquired rights in the instrument directly or indirectly from a transferee, including any such party that has rights as a holder in due course, is deemed to have notice of any payment that is made under subsection (b) after the date that the note is transferred to the transferee but before the party obliged to pay the note receives adequate notification of the transfer.

(e) The obligation of a party to pay the instrument is not discharged under subsections (a) through (d) if:

(1) a claim to the instrument under Section 3-306 is enforceable against the party receiving payment and (i) payment is made with knowledge by the payor that payment is prohibited by injunction or similar process of a court of competent jurisdiction, or (ii) in the case of an instrument other than a cashier's check , teller's check , or certified check , the party making payment accepted, from the person having a claim to the instrument, indemnity against loss resulting from refusal to pay the person entitled to enforce the instrument; or

(2) the person making payment knows that the instrument is a stolen instrument and pays a person it knows is in wrongful possession of the instrument.

(f) As used in this section, "signed," with respect to a record that is not a writing, includes the attachment to or logical association with the record of an electronic symbol, sound, or process to or with the record with the present intent to adopt or accept the record.

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  • Victor Mukhin

Victor Mukhin, Speaker at Chemical Engineering Conferences

Victor M. Mukhin was born in 1946 in the town of Orsk, Russia. In 1970 he graduated the Technological Institute in Leningrad. Victor M. Mukhin was directed to work to the scientific-industrial organization "Neorganika" (Elektrostal, Moscow region) where he is working during 47 years, at present as the head of the laboratory of carbon sorbents.     Victor M. Mukhin defended a Ph. D. thesis and a doctoral thesis at the Mendeleev University of Chemical Technology of Russia (in 1979 and 1997 accordingly). Professor of Mendeleev University of Chemical Technology of Russia. Scientific interests: production, investigation and application of active carbons, technological and ecological carbon-adsorptive processes, environmental protection, production of ecologically clean food.   

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Coordinates of elektrostal in degrees and decimal minutes, utm coordinates of elektrostal, geographic coordinate systems.

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Elektrostal , Moscow Oblast, Russia

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COMMENTS

  1. School Policies & Forms

    Late Assignments Please take careful note of deadline dates and times set for assignments as there are serious lateness penalties as per the book of modules, which states that: Work which is submitted late shall be assigned a mark of zero The school policy is that there are no extensions on work set. The deadline for all assignments is 11h00.

  2. § 3-304. OVERDUE INSTRUMENT.

    (1) If the principal is payable in installments and a due date has not been accelerated, the instrument becomes overdue upon default under the instrument for nonpayment of an installment, and the instrument remains overdue until the default is cured.

  3. Submission of Assignments

    Work which is submitted late shall be assigned a mark of zero. If, prior to the deadline, exceptional circumstances arise preventing the student from working towards completion of an assignment, a student can apply for a waiver of the penalty at the link included on the Department's home page.

  4. § 2-210. Delegation of Performance; Assignment of Rights

    § 2-210. Delegation of Performance; Assignment of Rights. (1) A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract.

  5. § 9-514. Assignment of Powers of Secured Party of Record

    An assignment of record of a security interest in a fixture covered by a record of a mortgage which is effective as a financing statement filed as a fixture filing under Section 9-502(c) may be made only by an assignment of record of the mortgage in the manner provided by law of this State other than [the Uniform Commercial Code].

  6. Commercial Contracts in the USA

    Late payment interest. ... Subcontracting, assignment and third-party rights. ... Further, the UCC invalidates assignment restrictions on accounts, including the right to receive payment under the ...

  7. Penalty Exemption Scheme

    Work submitted 15 days late or more shall be assigned a mark of zero. If there are extenuating circumstances, students submitting late work may apply for exemption from the School of History's Penalty Exemption Committee (PEC). The committee may waive all, or part of the penalty, or it may reject the application altogether.

  8. UCC Issues: Excluded Property and Anti-assignment Provisions

    by Practical Law Finance. Maintained • USA (National/Federal) A discussion on why certain agreements containing anti-assignment provisions may be excluded from a lender's collateral and the approaches a lender may take to deal with the issue.

  9. Are there any circumstances under which I can submit a late exam

    There is a 'permission to submit an appeal late' application form which must be submitted to the Examination Appeals Officer who will then ask the EAC to consider. For further information please see exam appeals, mitigation, and re-checks. If you cannot find the answer to your question, or if you need additional support, contact us:

  10. UCC Forms: What You Need to Know

    Unlike a UCC 1, a UCC-3 can be used for multiple purposes. The actions one can take are Amendment, Assignment, Continuation, and Termination. Four types of UCC-3 forms: 1. Amendment. An amendment makes changes to errors or standard adjustments on the UCC-1, which could be for the secured party, debtor or collateral. 2. Assignment

  11. UCC Assignment and Federal USPTO Assignment: One Word, Two Meanings

    Article 9 of the Uniform Commercial Code (UCC) allows a secured party (SP) to file assignments via UCC3 amendments. In the UCC Article 9 world, an assignment (UCC3) is linked to the initial financing statement (UCC1) in the public record so that the relationship between the two filings is clear.

  12. Florida Secured Transaction Registry

    The "Florida Secured Transaction Registry" is a centralized Uniform Commercial Code (UCC) filing and retrieval system containing initial financing statements, amendments, assignments, and other UCC filings as authorized by Florida Statutes Chapter 679.

  13. Keeping Current: Setting the UCC Record Straight on Mortgage Notes

    Article 9 provides a procedure for the buyer or lender to record a document in the real estate records to reflect that assignment. UCC § 9-607(b). Conclusion. The PEB Report describes the application of selected provisions of UCC Articles 3 and 9 to several key issues that may come up in connection with mortgage notes.

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  15. § 3-602. PAYMENT.

    § 3-602. PAYMENT. (a) Subject to subsection (b), an instrument is paid to the extent payment is made (i) by or on behalf of a party obliged to pay the instrument, and (ii) to a person entitled to enforce the instrument.

  16. Having Second Thoughts about your Programme?

    The Student Records and Examinations Office will close for St. Brigid's Day on Friday February, 02 at 5pm and reopen on Tuesday February, 06 at 9am. Change of Module Requests The deadline to register a change of module in Semester Two via the MyStudentAdmin portal has now passed.

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  19. Geographic coordinates of Elektrostal, Moscow Oblast, Russia

    Geographic coordinates of Elektrostal, Moscow Oblast, Russia in WGS 84 coordinate system which is a standard in cartography, geodesy, and navigation, including Global Positioning System (GPS). Latitude of Elektrostal, longitude of Elektrostal, elevation above sea level of Elektrostal.

  20. Assessment Submission

    Penalties for Late Submission may apply after this (see your Information Booklet for more details). Visit our , or view our Photo Prompt Sheet for help finding the location of the Assessment Submission Box. Please Note

  21. BETA GIDA, OOO Company Profile

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  22. Assignments and Exams for All Students

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