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Business & Intellectual property

First, sack all the IP lawyers.

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In an article in the Times the argument is made that the true value and potential of intellectual property rights to the UK economy is being stifled by IP laws that are not fit for purpose, and that lawyers are in some way both ignorant of the economic value of patents to business owners and guilty of undermining entrepreneuralism.

As one of the comments in response to this article notes, it is incorrect to blame patent law, which does permit the transfer, licensing and securitisation of patents (which is also true of other IP rights) and it is also incorrect to state that IP rights are not traded. Furthermore, the suggestion that (IP) lawyers are in some way complicit in this failure to realise value from IP rights is not a picture that I recognise in any way, shape or form.

From my perspective, the problem is neither the law nor the lawyers. The difficulties are much more complex than the article seems to suggest. There is still a widespread under-appreciation in most businesses of the importance and value of intellectual property rights. Relatively few businesses either audit or carry out a valuation of their IP rights. If it is done at all, it tends to happen only at the point when a business, together with its IP rights, is being prepared for sale. There are a number of valuation methodologies that are used to put a price on those rights, but a full appreciation of the nuances that tend to be applied in those methodologies is rarely shared equally by valuers and rights owners. In addition, IP rights are not only time-bound (20 years for most UK patents, for example), but susceptible of having their value removed at a stroke. This can happen if a particular IP right is found to be invalid, or to require a licence from a third party, or to be an infringement of other rights. The risk of this happening clearly has an impact on value, and IP lawyers frequently advise on the scope and nature of such risks, as well as recommending steps to mitigate those risks in order to maximise value.

The article also implies that IP is not traded in the same way that commodities are traded. While this is far less common in the UK that in the US, it is untrue that it does not happen at all, but rather that the practical and economic (as well as legal) problems mentioned above make this an exercise fraught with difficulty and the risk that the stated value is or becomes illusory. Securitisation of copyright does happen in the music industry, where an established artist sells the right to the income from exploitation of recordings of their back catalogue, but even that cannot be regarded as a completely safe investment. The value of Taylor Swift’s original recordings has presumably been seriously impacted by her re-recording her early songs.

The suggestions in the article that innovative companies will look to the US or South Korea for valuation, and that valuation in Europe “is even more hidebound” are too simplistic to be taken at face value. IP rights are mostly national, which means that different legal regimes apply to them in every country. The “Chanel” trade mark has to be registered in every country where branded products are sold. While there are international agreements, conventions and protocols which introduce a degree of harmonisation, the process is far from complete. So the suggestion that a single country can produce a mechanism for monetisation of IP rights that works equally well worldwide is more than a little misleading.

The article does argue for early valuation of IP rights, with which I fully agree, but there also needs to be a continuing review, by means of an IP audit of what rights exist in the business; whether they are owned or licensed; whether they are susceptible to competitive threats and what their expected life might be. IP Valuers and lawyers also need to engage business owners in a continuing discussion about different opportunities to realise that value and to promote learning and understanding that different exploitation models are likely to result in different levels of risk and different levels of reward.

Far from being barriers to exploitation of IP rights, IP lawyers working with IP valuers are one of the most important professional services that a business needs to engage with in order to maximise value and minimise risk.

https://www.thetimes.co.uk/article/let-companies-trade-intellectual-property-like-commodities-jqdwdxh2l

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Patrick Wheeler

Partner - Head of IP & Data Protection

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