Michael D. Moberly November 19, 2008
In today’s globally competitive, aggressive, and winner-take-all business transaction environment, the management, oversight, and stewardship of intangible assets, IP, and proprietary competitive advantages that are in play – part of deals are fiduciary responsibilities and business decisions not solely legal processes.
By framing transactions in this context, it adds credibility, confidence, and efficiencies to the work of transaction management teams and increases the probability that pertinent details, particularly those related to the intangible assets that are in play, will become action items in the transaction management teams’ interaction with c-suites and boardrooms.
All intellectual properties are intangible assets, but, conventional forms of IP ownership-enforcement, i.e., patents, copyrights, and trademarks are absolutely not synonymous with (a.) sustaining control, use, ownership, or value of those assets, or (b.) the ability to maximize any projected economic rewards/benefits from a transaction.
Similarly, the time frames when a company can realize the most value from acquired IP and intangibles relatiive to the life, value, and functionality cycles of those assets continues to be compressed, in part, because of:
– barrier free (global) entry points and quick and substantial profits from large scale misappropriation, infringement, and product counterfeiting operations which are, in some regions, a more favored and certainly more lucrative option.
– increasing vulnerability to external exploitation, i.e., sophisticated and predatorial business intelligence and data mining campaigns that can rapidly undermine and/or erode asset value and project (transaction) momentum.
When substantial – valuable intangible assets are in play, business transaction management teams may be well advised to:
1. Focus squarely on the economic fact – business reality that today, as much as 75+% of a transactions’ value and ultimately the sustainable economic benefits to a party lie in intangible assets…
2. Treat the control, use, ownership, and value of intangible assets as business decisions and fiduciary responsibilities integral to relevant legal processes…
3. Integrate measures/techniques to mitigate risks – threats to the intangible assets that are in play, which, if they materialize (pre – post transaction) could:
– undermine competitive advantages and erode projected profitability
– cause time consuming distractios that disrupt transaction momentum
– ensnare-entangle the assets in costly legal challenges and/or disputes.
As business transaction management teams integrate the above guidance, particularly when intangible assets are in play – part of the deal, it will enable-facilitate stronger, more secure, profitable, and efficient transactions, not impede them!