Introduction

In the pursuit of profitability, enterprises are endowed with two fundamental categories of assets: tangible and intangible. Tangible assets encompass physical entities such as buildings and machinery, whereas intangible assets transcend the physical realm. Traditionally categorized under the umbrella term “Goodwill,” intangible assets include diverse elements, ranging from customer loyalty and a distinguished business name to the calibre and morale of employees, and notably, Intellectual Property (IP).

In essence, an asset is a resource controlled by an entity, be it a corporation or a business, stemming from past events such as purchase or self-creation, with the promise of yielding future economic benefits. Within the ambit of intangible assets, Intellectual Property assumes a distinctive role as a legally protected subset. It encompasses patents, industrial designs, trademarks, copyrights, and trade secrets, distinguished by characteristics like transferability, independent identification, and an economic life that exceeds its legal tenure.

Intellectual Property wears a dual identity, comprising a legal perspective and an economic one. While every economically valuable IP entails a legal standpoint, not all legally protected IPs necessarily harbour economic value. For instance, an IP that fails to contribute to an enterprise’s income lacks economic worth, despite its legal safeguards. To extract profits from an IP, enterprises must not only shield it, but also comprehensively understand its value.

In today’s rapidly evolving business landscape, where innovation is paramount, the significance of Intellectual Property cannot be overstated. As technological advancements and creative endeavours shape industries, IP emerges as a critical driver of competitive advantage. It is within this context that the valuation of Intellectual Property gains prominence, serving as a strategic tool for businesses to unlock the full potential of their intangible assets.

This article gives a closer look at how we figure out the value of intellectual property. We’ll explore the details, methods, and reasons to determining its worth and understand if there is any difference in the value of different kinds of IPs.

Distinction Between “Value” and “Price”

Distinguishing between “Price” and “Value” in the context of intellectual property (IP) reveals a notable contrast. The price of an IP asset refers to the monetary amount for which its ownership could be transferred between a willing buyer and seller. This amount represents the financial consideration in the market, defined as what a buyer is willing to pay based on their perceived value in an arm’s-length transaction. Determining this price is subject to various factors such as time, demand, motivations for selling, buyer synergies, and negotiation skills.

In contrast, the value of an IP asset pertains to the potential future economic benefits for the owner or authorized user. This value emanates from the anticipated economic advantages the asset is poised to provide. The crux of an IP asset’s value lies in its ability to exclude competitors from a specific market. While the legal right grants exclusivity, the economic right hinges on the exclusivity of use, allowing control over the asset’s utilization. To have quantifiable value, an IP asset must generate measurable economic benefits for its owner, contributing to the enhanced value of associated assets.

Reasons and benefits of valuation

There is no reason why we should not value an IP. Main reasons for valuation of IP can be sorted down to the following:

• Asset Recognition: Valuation helps in recognizing IP as a valuable asset on a company’s balance sheet.
• Strategic Decision-Making: IP valuation guides strategic decisions, such as licensing, selling, or leveraging IP assets.
• Financial Reporting: It provides accurate financial reporting, offering transparency regarding the value of intangible assets.
• Mergers and Acquisitions: Essential for M&A transactions, IP valuation determines the fair value of intangible assets during negotiations.
• Investment Attraction: IP valuation attracts investors by showcasing the tangible value of a company’s intangible assets.
• Litigation and Dispute Resolution: Valuation serves as evidence in legal disputes, determining damages or settlement values related to IP infringement.
• Brand Value Determination: IP valuation contributes to determining the fair value of a brand, which is often a significant part of a company’s IP.

Therefore, recognizing the economic worth of your Intellectual Property (IP) assets through the process of IP valuation is crucial. Having an understanding of the potential value of your assets proves beneficial in a range of transactions, such as licensing, selling, donating IP rights, or engaging in joint ventures and collaborative agreements.

How to value? Methods for valuation

There are mainly three methods for valuing IP assets, which are explained as follows:

• Income method: The income method evaluates the value of an intellectual property (IP) asset based on the expected economic income it is anticipated to generate, adjusted to its present-day value. Widely recognized as the primary approach for IP valuation, this method involves discounting the associated risks from the income amount using a discount rate or capitalization rate. It is particularly suitable for assessing the value of IP with consistent cash flows. Examples of its application include the sale or purchase of a company and the licensing of IP assets. Various income methods fall into two analytical categories:

1. Direct Capitalization: In this approach, the valuer estimates the appropriate measure of economic income for a single period (i.e., one period into the future from the valuation date) and divides that measure by an appropriate investment rate of return, known as the capitalization rate.
2. Discounted Cash Flow (DCF) or Discounted Future Economic Benefits: This method involves projecting the suitable measure of economic income (cash flows) for multiple discrete time periods into the future. The valuer then discounts these future cash flows to their present value.

• Market method: Market-based IP valuation methods ascertain the value of an asset by examining the prices involved in transactions for similar intellectual property (IP) between unrelated parties. This approach involves scrutinizing comparable market transactions, whether for the sale or purchase of similar assets, to draw conclusions about the value of the subject asset. The accuracy of the calculation relies on the availability of appropriate information regarding the nature and extent of rights transferred and the circumstances of the transaction. In essence, the market method relies on comparing the actual price paid for a similar IP asset under comparable circumstances. The steps of the market method can be outlined as follows:

1. Research: The appropriate market needs to be researched to procure information on sale transactions, listings and sell or licence IP assets which are similar to the subject IP.
2. Verification: verify the information by confirming that the data obtained are factually accurate and that the market transactions reflect arm’s length market considerations.
3. Unit selection: Select relevant units of comparison and develop a comparative analysis for each unit of comparison.
4. Adjustment: Compare “guideline” IP asset transaction with the subject IP asset using the variables or factors for comparison and make adjustments to the price of each guideline IP asset transaction.
5. Reconcilement: Reconcile the various indications produced from the analysis of the guideline transaction into a single value indication or a range of values.

• Cost method: The Cost method is employed with the aim of determining the value of an intellectual property (IP) asset by computing the cost associated with developing a similar or identical IP asset, either through internal or external means. Valuation under the cost-based approach involves evaluating the expenses incurred in the creation and development of the IP. This method considers the costs borne by the business responsible for the IP’s creation, along with the costs associated with replicating a comparable IP asset or a product utilizing the IP. The costs involved in creating the IP may encompass labour costs, prototype creation expenses, material costs, research and development outlays, testing costs, and expenditures related to the registration and renewal of the IP, among others. A limitation of this valuation method lies in its exclusive reliance on the costs incurred, without incorporating potential future profits into the calculation. This oversight neglects the prospect of future success in the marketplace. There are two types of cost methods^[1]:

1. Reproduction Cost Method: This method envisions the construction of an exact replica of the subject IP, considering the costs associated with reproducing it.
2. Replacement Cost Method: The Replacement Cost Method contemplates the expenses required to recreate the functionality or utility of the subject IP. However, the recreation may take a form or appearance that differs significantly from the original IP.

A crucial stipulation for both methods is that the costs should be determined as of the valuation date, whether it is the current date or another specific date, and not be based on historical expenditures that occurred in the past.^[1]

Is there any difference in the value of different types of IPs, i.e., patents vs. copyright vs. trademarks?

The value of patents, trademarks, and copyrights depends on various factors, and their importance can vary across industries and business strategies. The valuation of intellectual property (IP) is a nuanced process, and the significance of patents, trademarks, and copyrights can be contingent on a multitude of factors. Each type of IP serves distinct purposes, catering to different aspects of innovation, brand identity, and creative expression.

• Patents:

• Purpose: Patents are instrumental in safeguarding inventive processes, machinery, and technologies. They grant inventors exclusive rights to their innovations for a specified duration.
• Value Dynamics: The value of patents is particularly pronounced in industries driven by technological advancements. In sectors where innovation plays a pivotal role, having exclusive rights to groundbreaking inventions can confer a competitive advantage and position a company as a leader in its field.

• Trademarks:

• Purpose: Trademarks, encompassing symbols, names, or distinctive designs, are essential for establishing brand identity and differentiating goods or services from those of competitors.
• Value Dynamics: Trademarks are often considered invaluable assets, especially for businesses reliant on consumer trust and brand loyalty. A well-established trademark can serve as a powerful marketing tool and contribute significantly to the overall value of a brand.

• Copyrights:

• Purpose: Copyrights protect original works of authorship, including literary, artistic, and musical creations, ensuring that the creators have exclusive rights to their expressions of ideas.
• Value Dynamics: In industries driven by creative content, such as publishing, entertainment, and software development, copyrights are pivotal. They provide protection for the unique expression of ideas and creative works, forming a foundation for the economic exploitation of such works.

The relative importance of these types of IP varies based on the nature of a business, its industry, and its strategic objectives. A comprehensive IP strategy often involves a strategic combination of patents, trademarks, and copyrights to address the diverse facets of a company’s intellectual assets. Additionally, the strength of legal protection, market demand, and the potential for commercialization all contribute to the specific value of each IP asset in a given context. Therefore, there is no one-size-fits-all answer to the question of which type of IP is universally more valued—it depends on the unique circumstances of each business and industry.

Conclusion

In conclusion, as businesses strive for success in an era dominated by intangible assets, the recognition and strategic valuation of Intellectual Property (IP) stand as imperative keystones. The evolving landscape, where 90% of S&P 500 assets are intangible, underscores the pivotal role of IP in shaping competitive advantages.

Beyond financial considerations, IP valuation emerges not just as a necessity but as a strategic compass. The distinction between “Price” and “Value” becomes a guiding principle for decision-making, attracting investors, and steering pivotal business functions.

In essence, the value of Intellectual Property is a dynamic terrain, shaped by industrial norms, legal safeguards, market dynamics, and strategic objectives. Recognizing and valuing IP is the key to unlocking the full potential of intangible assets in the competitive business landscape. As we approach the uncharted waters of innovation, Intellectual Property emerges not only as a legal safeguard but as a dynamic force propelling enterprises towards sustained success.

Aditya Kumar Saraswat, a fourth year B.A.LL.B (Hons.) student from Aligarh Muslim University, Aligarh.

References:

• https://ipcloseup.com/2021/01/19/latest-data-show-that-intangible-assets-comprise-90-of-the-value-of-the-sp-500-companies/
• https://ghbintellect.com/importance-of-ip/
• Tim Heberden, Paul Tahalele, and Bob Breeze, Intellectual Property Valuation and Royalty Determination.

^[1]Fair Value Measurement: Practical Guidance and Implementation, Mark L. Zyla 2020.

^[1] APEC Intellectual Property Experts Group, Intellectual Property (IP) Valuation Manual: A Preliminary Guide 2018.

^[2]Fair Value Measurement: Practical Guidance and Implementation, Mark L. Zyla 2020.