The Changing Nature of Intellectual Property and Intangible Assets

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1 The Changing Nature of Intellectual Property and Intangible Assets An excerpt from Chapter 3 of IP Valuation and Management By Weston Anson In the prior chapter, we discussed the four basic types of intellectual property: Patents, trademarks, copyrights, and trade secrets. However, as the world evolves, new intellectual property and intangible assets are being created, and the definitions of the core intellectual property classifications are ever expanding and changing. Before we tackle some of the expanded definitions of the core categories, it is useful to take a brief look at other IP and intangibles with value that are increasingly common. Because of the very nature of intangibles, IP will always be changing, expanding and being modified as the business environment changes, expands, and modifies to adjust to today s global marketplace. To take just one example, we can look at databases. Databases that have a degree of creativity in them can be registered under copyright law, and hence become a piece of intellectual property. However, not all databases have value. Let us think about a small company with no more than 50 customers on a handwritten list; and compare it to a company with 200 customers listed and preserved electronically; and finally compare that to a consumer goods retailers that may have a database measured well into the millions, detailed and stored in very specific software which can be manipulated in many ways. Clearly all three of these companies have databases; however, not all of them can be protected legally, and the importance, value, and ability to monetize this new form of intellectual property is going to vary substantially amongst the three companies. We also want to illustrate here how the nature of IP is undergoing constant change. In order to do so, we briefly examine seven different areas of IP and intangible assets. Note that the border between IP and intangible assets is being blurred in several areas -- for example, the definition of what constitutes a specific piece of IP is fraught with questions: What constitutes a patent and what is patentable? What is covered under copyright law and how long does copyright law protection last? The definitions are being constantly expanded in legal practice, and, importantly, being driven by changes in the business world. The changes even within the four core categories are constant. Let us first look at trademarks, and then copyrights, patents, Internet assets, celebrity rights, software, and licenses. Trademarks The definition of trademarks has been expanding over the past few decades to include entirely new areas not thought of 20 years ago, including digital and electronic images. Today, in addition to new types of imaging that can be trademarked, one can also register a color as a trademark. In some key European markets, a specific smell or taste can be registered as a trademark (for example, tennis balls impregnated with the smell of grass). In the US and overseas, in some cases a specific sound can be registered as a trademark. There are limits, however; Harley Davidson attempted to register the unique sound of the Harley Davidson motorcycle as a trademark, but lost a pitched battle with the USPTO after a protracted appeals process. Even in secondary and emerging markets, the issue of new types of trademarks is being discussed. For example, during the summer of 2009, the Southeast Asian countries held a two-day forum in Malaysia on the emergence of nontraditional trademarks. Copyright 2010 CONSOR Intellectual Asset Management 1

2 Patents There has been as much change in the scope and definition of a patent as there has been in any other area of IP, as the concept of what constitutes an invention or unique device and the definition of the necessary components of a patentable idea have expanded. For example, genetically modified plants, as well as genetically engineered animals, can be registered as patents. The number of applications for patents continues to rise. In 2008, the World Intellectual Property Organization (WIPO) estimated that nearly 164,000 applications were filed under the Patent Cooperation Treaty (PCT) globally. That was the highest number ever received in a single year. Up until 2008, the growth of patent applications was averaging between 9% and 10% per year. The economic downturn of 2008 and 2009 has, of course, affected that rate of growth. The highest rates of growth seen in patent applications came from Sweden, China and Republic of Korea, where applications went up approximately 12% in 2008 alone. In just a few short years, China has gone from a society that essentially did not recognize patents, to the number six position among all countries registering patents. In fact, the one company in the world with the highest number of patent applications in 2008 was the Chinese company Huawei Technologies. In 2008 they registered 1737 applications. The leading US filers continue to be the high-tech companies, including Qualcomm, Microsoft, and Motorola Rankin g Applicant s Name Exhibit 3.1 Top 10 PCT Applicants in 2008 Country Of Origin Pct Applications Published In 2008 Increased Over Huawei Technologies Co., Ltd. CN Panasonic Corporation JP Koninklijke Philips Electronics N.V. NL Toyota Jidosha Kabushiki Kaisha JP Robert Bosch Gmbh DE Siemens Aktiengesellschaft DE Nokia Corporation FI LG Electronics Inc. KR Telefonaktiebolaget Lm Ericsson (Publ) SE Fujitsu Limited JP Source: WIPO, 2009 In a category of patents that was virtually unknown a decade ago, a broadly defined new type of patent, called the business method patent (BMP), has become the centerpiece of many companies patent portfolios. A BMP covers a specific business technique. For example, the Amazon 1-click system of ordering has been approved as a unique and patentable process. However, it must be noted that a great deal of debate still surrounds the concept of business Copyright 2010 CONSOR Intellectual Asset Management 2

3 method patents, and in many key markets, particularly Europe, there is no recognition of the BMP as of yet (Note: In mid-2009, the Supreme Court agreed to hear the Bilski case to determine what limits, if any, are on business method patents). In other geographies such as Australia and Japan, business method patents can be applied for under the existing laws; and the trend of the Chinese patent office is to allow business method patents -- under strict definitions. In other industrialized and emerging markets, however, business method patents are not being recognized. Canada and India are notable examples. Most importantly, in the European Patent Convention Act of 1977, which covers the UK and other European countries, business method patents as such are excluded from patentability. Copyrights In terms of value, lifespan and protectability, copyrights have changed and expanded just in the last 5 years. As a result of the 2004 amendment to the copyright act, the life of a copyright in existence prior to January 1978 has been extended by 20 years to a total of 95 years. This change was driven heavily by the entertainment and creative industries. As a consequence of this change, assets that were soon to be in the public domain and hence about to lose a substantial amount of the value attributed to the original owner are now further protected. Without the extension, creative properties like Disney s Mickey Mouse or the early drawings of Dr. Seuss would have moved into the public domain recently. Extension of copyright life is such that copyright for works created after 1978 last for the author s life plus 70 years, or for 95 years from publication, or 120 years from creation in the case of anonymous works. Also, as we briefly discussed above, definitions of what is copyrightable continue to expand. The database example above clearly illustrates this. Internet Assets The greatest change in intellectual property has come as a result of the Internet and the World Wide Web. New domain names and new websites are constantly being created -- some as freestanding trademarks, others as part of pre-existing trademarks. Copyright protection for website designs is now available. In addition, search engines and systems are constantly being modified, upgraded and expanded. As a result, more business method patents are being applied for in these new Internet techniques, and the definitions of Internet assets continues to expand. The protection for these assets can take the form of patent protection for business methods, copyright protection, or trademark protection. Celebrity Rights There is no question that the rights of celebrities to not only protect their privacy, which is well established, but to capitalize on their rights of publicity has been increasing at a rapid rate over the last 20 years. The right of publicity for a celebrity is becoming more protectable and enforceable, and the estates of celebrities have become more aggressive about enforcing their celebrity rights, not only enforcing them, but also litigating over misuse. Celebrity rights of publicity extend not only to living people. In many states, they also apply to the estates of dead movie stars and other celebrities, like John Wayne and John F. Kennedy, as well as cartoon characters such as the Pink Panther. Most importantly, the value of these rights has also increased dramatically, both in terms of their absolute value, and in terms of the fees paid to receive a license to use the celebrity s right of publicity in an endorsement or other marketing usage. Copyright 2010 CONSOR Intellectual Asset Management 3

4 Software Of all the areas of intellectual property, software is the one that is both the most complex and in the greatest state of constant reinvention and increasing sophistication. Whether one is dealing with original platform systems, middleware and other business applications, or in consumer and office applications such as Microsoft Word or Excel, complexity and value are both moving on the upslope of the bell curve. However, the debate as to ownership and transferability of these assets is also in flux. For example, if a large retailer such as Tower Records goes into bankruptcy, and they ve spent $50 million on custom-made operating software for their online operations, the question is who owns that software? Depending on how the original contract was written, oftentimes the software continues to belong to the developer, such as SAP. In other cases, if the software has been purchased outright, then it belongs to the company or its estate and can be both valued and sold. At the opposite extreme, the example of a 10,000 seat contract for Microsoft Windows, as was owned by Enron when it went into bankruptcy, may be saleable. In that particular case, the contract had three years left to run, and was ruled to be an asset of the estate and therefore transferable -- but with software, every situation has to be examined individually as to ownership, protection and value. Licenses The key questions about licenses for the use of IP rights are two-fold: First, is a license a piece of intellectual property in and of itself? The answer is yes and no. The second question is, do licenses have individual value in and of themselves? Again, the answer is yes and no. To the first question, one must discover whether the license agreement is both exclusive and transferrable. If it meets both of those tests, then indeed it is a piece of intellectual property, it can be valued, and in fact in many cases can have truly substantial value. However, in answering the second question as to whether the license has value, once again the determinants are whether it is exclusive or non-exclusive, and whether it is transferable or not. Each case and each license agreement is different, and the US Court s different circuits view these license assets in different ways. In general, one can opine that non-exclusive licenses for patents, copyrights, software and trademarks will typically be non-assignable. On the other hand, exclusive licenses for the use of IP or licenses in perpetuity that contain a transferability clause can have value and oftentimes that value can be substantial. Finally, as we ll discuss later in the book, the financial condition of the license holder, whether licensor or licensee, can have an impact. In bankruptcy for example, different rules apply and some bankruptcy courts have held that licenses are saleable and transferable, while in other cases they have not ruled in the same way. The key takeaways of this brief chapter on changing intangible assets are as follows: The definitions of classic types of IP, patents, trademarks, and copyrights, are continually expanding. Intellectual property is becoming more complex, and the Internet and electronic commerce is affecting and growing the range of protectable intellectual property. Copyright 2010 CONSOR Intellectual Asset Management 4

5 Third, the value of intellectual property as a whole is increasing, as measured in corporate equities. The proportion of IP/intangible asset value relative to a company s tangible assets continues to rise. There are major areas of uncertainty in intellectual property ownership and value. For example, the question of whether business method patents will ultimately be protectable, not only overseas but in the US, is still up for debate. Similarly, the definition and protection of what intellectual property is embedded in computer software continues to change. Finally, the value of intellectual property can be strongly influenced by the context in which it is being valued. For example, there is substantial difference in value between a bankruptcy environment and the valuation of intellectual property for the estate of a deceased person. Similarly, the value in litigation of these assets may be different than an open market going concern fair market value. In the next three chapters, we ll deal with how one values intellectual property -- the traditional methodologies and alternative methodologies, as well as some leading edge methodologies. We will follow that with a discussion of the mechanics of how IP is valued and the context of value, which we briefly referred to in this chapter -- sale, bankruptcy, divorce, inter-company transfer, licensing, and estate planning. Copyright 2010 CONSOR Intellectual Asset Management 5

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