Distinguishing Intellectual Property Valuation (Ipv) From Other Company Assets In Mergers And Acquisitions

Distinguishing Intellectual Property Valuation (IPV) From Other Company Assets In Mergers And Acquisitions

 

  1. Introduction

With the increasing desire for expansion of businesses and development in the corporate world, companies engage in highly sophisticated corporate restructuring options to remain relevant. The result of this desire has led to the increasing rate of mergers and acquisitions in today’s business trends. In some instances, mergers and acquisitions may occur when an unlisted acquirer obtains the controlling shares of a listed target and may want to continue to operate in the name of the acquired target entity so as to enjoy its listed status and associated goodwill- this transactional approach which is referred to as the Reverse Acquisition in mergers and acquisition parlance. Examples of this nature help to demonstrate how a deep understanding of the corporate assets such as IP and the like could influence decision making around business combinations. Indeed, many organizations often fail to appreciate the commercial value of, and the dangers to their Intellectual Property (IP), even when IP accounts for a high measure of the company’s worth when these corporate restructuring options are being executed.

 

When organizations develop their IP, there is usually this urge to make high returns from their investment despite their minimal resources. And when its objective is not maximized, it could be devastating for the company.[1]

 

A company’s assets may be broadly divided into two categories: Tangible assets – including structures, facilities, financial assets and infrastructure – and Intangible assets – ranging from human assets and knowledge, ideas, brands, goodwill, strategies and other intangible assets. Usually, corporeal assets have constituted a large chunk of company assets and they are considerable in determining the position of the company in the market place. Increasingly, and largely as a consequence of the information technology revolution and the growth of the service economy, companies are realizing that, the goodwill of a company is far more valuable than their physical assets.

 

In Nigeria, the essence of IP in business is insufficiently understood; it is probably under-valued, under-managed or under-exploited.[2]  Worldwide, IP is recognized as a very relevant asset of many of the world’s largest and most influential companies; it is extremely key to market dominance and continuing profitability of leading corporations. It is often a major objective in mergers and acquisitions and knowledgeable companies are increasingly adopting permissible ways to relocate assets to areas where the tax obligation is low. Accounting Standards are not necessarily useful in demonstrating the worth of IP rights and intangible assets (IPRs) in company accounts[3]; however, an international accounting method could be adopted in the valuation of IP where the value of a company’s IP portfolio could be measured separately and independently of its tangible assets.  It is worth mentioning that the dynamic of assets appreciation is changing and a paradigm shift to powerful software and ground-breaking thoughts as the main platform for generating income in most corporations worldwide is becoming commonplace. One crucial way of doing so is by protecting intangible assets within a suitable legal framework and where they meet the standards for intellectual property protection, acquiring and maintaining IP rights.[4]

In developed countries around the world, there is an ever-growing shift towards the knowledge economy, or industries based on innovation and intangible assets. In such a climate, businesses that base their operations on intangible assets and innovation have a higher likelihood of thriving. Intellectual property can help businesses legally protect and capitalize on these inventions. Contrary to popular belief, the number one reason firms acquire intellectual property is not for litigation purposes, but to have legal and transferable proof of ownership to some of their most important intangible assets. Intellectual property valuation can help corporations determine the true value of their businesses and capitalize on assets that they may not have been aware of possessing.[5]

Furthermore, changes in international commercial communities have influenced the expansion of business models where IP is a central element creating value and potential growth. In addition to these changes, international accounting practices place pressure on firms to recognize and value all identifiable intangible assets of a firm as part of a transaction, especially, in mergers and acquisitions.

As a result of these developments, proper valuation of IP, followed by measures to protect that value, have become a key element of the success and dynamism of a modern firm. The importance of intangible capital and its acquisition have accounted for more than half of the increased output in developed economies over the course of the last few decades.[6]

 

  1. Diligence in IP Valuation

Significant due diligence should be undertaken when the fundamentals of a given transaction consist of assets such as trademarks, knowledge and technologies.  The commercial standards of such transactions largely orbit around intellectual property and these could include trademarks, patents, industrial designs and copyrights.

Registered and granted intellectual property rights, such as granted patents, trademark registrations, and copyright registrations, which are acquired by application to intellectual property offices, provide legal evidence of a beneficiary’s ownership over intangible assets as well as give such beneficiary the right to exclude others from use of the rights. This means several things: owners have the means to protect themselves against infringement by competitors; owners can profitably license assets and sell same to others to provide them with rights they would otherwise not have; increase in the gross value of a beneficiary’s business.

The precise monetary worth of intellectual property, however, can be challenging to determine, as there are several factors that determine the value of the intangible assets in question. Registration or grant of an intellectual property right is sometimes a precondition to valuation, especially quantitative valuation, and enables the process of monetizing intangible assets.[7]

Conducting a valuation of intellectual property rights has significant benefits. Assessing the value of your patent, trademark or copyright may simplify the licensing or assignment process, and help you determine the royalty rates that should be paid to you as a result of using your intellectual property assets. Further, ascribing a reasonable valuation to your intellectual property, if not currently accounted for, increases the overall value of your business and provides you with collateral for loans or mortgages.[8]

The valuation of IP is therefore vital in the structure of commercial transactions. Unfortunately, this characteristic is often ignored by companies not knowledgeable in these sorts of deals, resulting in transactions that are either overestimated or underestimated or loss-making.  It is therefore important to scrutinize and assess the worth of the IP during the negotiation process, before the conclusion of a commercial transaction. One of the key factors affecting a company’s success or failure is the degree of value attributed to the exploitation of IP. Management in these organizations clearly need to gain an understanding of the value of their IP rights. This is so because this understanding facilitates a deeper knowledge of the value to be placed on the assets under their management. Markets, institutions and shareholders need to be educated. Abuse can assume many forms ranging from outright sale of an asset, a joint venture or a licensing contract. It is equally important to mention that exploitation and abuse exposes a company to increased risks.[9]

 

  1. IP Valuation Methods

The rule in commercial valuation of intellectual property relates to the fact that the value of an object cannot be estimated in the abstract and all that can be estimated is the value of such object in a particular place, particular time, and in a particular circumstance. More often than not, there could be two or more interested parties, and the valuations proposed could depend upon their circumstances. Failure to take these conditions and those of the owner into account could result in a less-than-satisfactory valuation.[10]

The value of intellectual property could be determined by many factors, but a major principle guiding valuation is how such intellectual property is valued when compared with similar assets in the same industry. When determining the worth of intellectual property, two methods of valuation have traditionally been used: Quantitative and Qualitative methods of valuation.

Quantitative valuation relies on measurable data or numerical information to produce an estimate of the value of your assets. It attempts to answer the question by providing a monetary value or contribution that the intellectual property provides, whether directly to the business or indirectly by increasing the value of other parts of the operation or appeal to investors.

Qualitative methods of valuation attempt to provide a non-monetary estimate of the value of intellectual property by rating it on the basis of its strategic impact, brand loyalty held by consumers, its impact on the company’s future growth, and other intangible metrics that do not rely solely on numbers[11].

There are majorly three major methods for IP valuation using the quantitative method: The Market Approach, the Cost Approach which is based on estimates of future economic benefits, and the Income Approach:

 

3.1       Quantitative Methods

3.1.1    Market Approach: The market approach is based on paid prices as a pointer for the value of an asset. The fundamental principle is that under certain conditions supply and demand lead to equilibrium in competitive markets. This approach encompasses the direct market value method and analogy method. The direct market value method seeks to use directly regarded transaction amounts for the subject asset. This method requires an energetic marketplace for the good, which means that the operated assets have to be same, willing purchasers and vendors can be found at any time and prices are widely known while the analogy method is when appraisers try to find transactions with comparable assets and transfer the paid prices to the valuation object. When comparable transactions are found, a common denominator or index has to be found in order to compute a multiplier for transferring the regarded prices to the valuation object[12].

 

3.1.2    Cost Approach

The cost approach seeks to ration the worth of a good by measuring the cost for the substitution of the asset by another. The basic supposition of this approach is that the cost to build or buy new possessions equals the value of its ownership. In this approach, it is basically composed of the reproduction cost and replacement cost methods. The reproduction cost method uses the cost of an exact imitation, while the replacement cost method guesstimates the cost of the manufacture or acquisition of a good with a corresponding benefit. This means the asset must have the same efficacy but may be quite different in method and appearance. Because of the uniqueness of intellectual property an exact imitation normally cannot be formed. So, when using a cost approach, it is more fitting to use replacement costs in this context[13]. Basically, what this means is the amount used in purchasing an IP asset should outweigh the cost of generating and using the same asset as both should be of equal value but not significantly much. This “cost to create” or “cost to replace” method disregards changes in the period value of money, upkeep and has very little to extol itself other than effortlessness of use.

 

3.1.3    Income Approach

Within the income approach diverse methods can be distinguished according to the way of determining the income flow: Direct Cash Flow Method, Relief from Royalty Method, Multi-period Excess Earnings Method, and Incremental Cash Flow Method.

The direct cash flow method uses the cash flows that are directly attributable to the subject asset. A condition for this is that the cash flows can be measured directly. This will especially be the case if the technology is not used in production processes by the owner himself but is made available to third parties by licensing. The license fees can be used directly as cash flows in the valuation calculation.

The idea of the relief from royalty method is that the income resulting from the ownership of the IP can be measured by the saved license fees, which would have to be paid, if the property would be licensed from another owner. The method requires that licensing agreements for similar assets can be monitored and transmitted.

The multi-period excess earnings method tries to isolate the cash flows attributable to the IP by deducting fictive fees (contributory asset charges) for all other assets from the entire cash flow of the unit. Those charges can be seen as rent or leasing fees for the use of those assets. So, the multi-period excess earnings method uses the opposite way of the relief from royalty method.

The incremental cash flow method seeks to value the benefit of IP by comparing the income of the considered unit with the property to a situation without it. The difference between the cash flows for each period in the two situations shows the additional cash flow that is attributable to the asset being valued[14].

The essence of the income approach is that it takes cognizance of the profits and economic value the remainder of the IP will generate after purchase.

There exist other less commonly used methods of quantitative valuation that often encompass elements of the larger umbrella methods described above but may focus on obtaining specific metrics. Such methods include the brand value equation method, liquidation value and income differential analysis. Depending on the purpose of prospective IP valuation, one or more of these methods may be helpful.

 

3.2       Qualitative Methods

3.2.1    Rating/scoring

To arrive at a definitive score in terms of valuation of IP, there are certain methods that one could adopt to achieve it. Most methods measure strategy, technological advancement and brand strength, as well as evaluating the risks and opportunities that are involved with the asset. The rating system can also be used for IP asset classification, as used in the Prism method, determining the type of function IP plays for the company and assigning a strategy based on the determination made.

3.2.2    Value indicators-based Method

It includes rating methods such as IP Quotient (IPQ), which primarily rates patents based on the strength of the portfolio and the variables that affect patents. This allows for internal comparisons to be drawn based on indicators.

3.2.3    Competitive advantage Method

It assesses the competitive advantage that is brought by intellectual property by comparing it to other non-branded companies in the market. It evaluates intellectual property on several characteristics (often a mix of qualitative and quantitative elements) to determine the brand’s performance and strength.

Because of their largely non-monetary nature, qualitative methods are often used for internal and/or strategic purposes. They can be used to understand the profitability of an IP portfolio and evaluate opportunities and risks, and to develop an overall strategy for businesses. Qualitative methods often tend to be based on common-sense indicators as well, making them viable for presentations to non-expert audiences and audiences without a strong financial grasp on the complicated quantitative measures that yield valuation metrics.[15]

 

3.3       IP Valuation in action

A useful illustration on the value of IP valuation may suffice here. Facebook’s billion-dollar acquisition of Instagram speaks volumes for the tremendous value attached to social media platforms. The fact that the social media giant would put forward such a large sum of money for a company (and a product) that generates no revenue (Instagram is free) is mesmerizing. This is even more so when one considers that Facebook acquired all of Instagram’s user base, instantly made inroads into the iOS and Android markets and has extended its own capabilities from merely being a social media network to a network that now facilitates the creation and sharing of unique user-generated content.

Before the purchase of Instagram, the projected value of the company was being rumored to range between $100 million to $500 million. Nevertheless, it was finally purchased at $1 billion. The rising valuation of the company was representative of the growing audience it had been garnering. It reached nearly 30 million registered users before it launched an Android app, a transformational event for the company. The summary is that Facebook purchased the entire essence of Instagram culminating into its IP valuation. The reason for the purchase is not the subject of this article, but the value attached to the brand known as Instagram is noteworthy here.[16] It is relevant to consider what approach Facebook adopted in this epoch-making merger. It would seem that it took the cost and income approach to arrive at its valuation. In adopting the cost approach, Facebook realized that the cost to acquire an IP asset in Instagram was far less significant in value than the cost of developing a new photo-sharing platform. In fact, the database and goodwill of Instagram will probably be more than that of creating a new platform. 

Bringing this home to Nigeria, in 2018, another event which emphasized the importance of IP valuation was the horizontal merger between Yudala – the acquirer, and Konga – the target (both online retailing firms), after which both companies became one entity, operating under the Konga brand name. Before the merger, Konga was Nigeria’s second largest online mall, second only to Jumia. Yudala was also a strong online and offline retail business with an expansive network of fully stocked offline stores. Together, they have become Africa’s largest online e-commerce business. The two companies in the above example; Konga and Yudala, are businesses whose existence revolve around the utilization of their IP assets. The acquisition of Konga by Yudala was unique, in that, the acquirer changed its brand name to that of target because of the inherent IP value of the target.[17] Prior to the merger, it was perceived that Yudala’s agenda was essentially to utilize Konga’s trademark which, Yudala believed it could effectively leverage to boost her brick-and-mortar retail business model. What approach did Yudala latch on in achieving this merger? Considering that this was a novel merger in the e-commerce sector in Nigeria, the market approach to the acquisition of Konga may not have been significantly considered. The overwhelming approaches may have been the Income and Cost approach as Facebook did. In fact, there was an argument that buyers outside Lagos would be more comfortable visiting a Konga shop than a Yudala shop.

The pivotal analysis is that Yudala acquired Konga to leverage its trademark and technology in a bid to make Yudala go online, and to expand its offline stores. “In the end, trademark and technology were the targets in the acquisition.[18]

Furthermore, recent developments in the Nigerian banking sector have further underscored the value of branding and IP rights. In the recent ‘friendly merger’ of Access Bank (the acquirer) and Diamond Bank (the acquired) on April 1, 2019[19], the name ‘Access’ was retained while the re-branded logo of the acquired was retained. Indeed, Access Bank completely purchased the assets of Diamond Bank. However, the merger demonstrated how much value is attached to brands; Access Bank took into account that immense value and then opted to retain an essential IP asset of the acquired- the Diamond i.e. her bank logo. It is fair to deduce that Access bank attached strong weight to the value that the Diamond Bank brand would bring to the table in reaching the decision it did. Practically, Access Bank took the avenue of appreciating the market cost and the income cost of the IP in Diamond bank’s logo.

When assessing the value of an intellectual property, it is essential to first conduct due diligence to determine:

  • the existence, validity and enforceability of the IP rights;
  • the territorial scope covered by the IP rights;
  • the competitive scope of the IP rights by analyzing the scope of the granted claims;
  • the risk of invalidation of the granted IP rights;
  • whether the IP right is subject to a security interest in favor of a third party;
  • whether the IP rights have been assigned and/or licensed to others;
  • whether there is any issue with the ownership of the IP through an analysis of the chain of title;
  • whether the IP rights are being litigated; and whether the rights would rely on third parties’ intellectual property rights in order to mature to commercially viable products.[20]

 

  1. Conclusion

We have examined critically, the different methods of undertaking IP assets valuation and the essence of their valuation. We have learnt that brand owners need to be more commercially aware of what their brand valuation could be worth. We also understand that the primary rule of commercial valuation is to the effect that the worth of assets cannot be quantified in the abstract and all that can be quantified is the value of an asset in a particular place, at a particular time, and in particular circumstances. It is strongly advised that entities that have the intention of valuing their IP should endeavor to use any of the quantitative approaches to achieve such valuation, and while embarking on this, professionals should be employed to do so observing the highest ethical standards and international best practice.

It is also recommended that brand owners should understand the importance of taking steps to protect their brands according to the laws of the land. This is important because, where brands are not adequately protected their owners may not be able to fully exploit the commercial value of the brand regardless of the method of valuation deployed.

 

This article was authored by Blessing Ajunwo-Choko and Doyin Fadare, both of whom practice at Alliance Law Firm.

 

 

REFERENCES:

[1]https://www.wipo.int/export/sites/www/meetings/en/2005/smes_qtc/presentations/wipo_smes_qtc_05_
king.pdf
   Accessed March 27, 2019

[2]https://www.wipo.int/export/sites/www/meetings/en/2005/smes_qtc/presentations/wipo_smes_qtc_05_
king.pdf
   Accessed March 27, 2019

[3]Ibid

[4]https://www.wipo.int/sme/en/ip_business/ip_asset/business_assets.htm accessed on March 27, 2019

[5]https://www.heerlaw.com/determining-value-intellectual-property accessed on January 28, 2020

[6] https://www.marsh.com/us/insights/research/importance-of-intellectual-property.html accessed on March 27, 2019

[7] https://www.heerlaw.com/monetizing-intellectual-property accessed on February 4, 2020

[8] ibid

[9] Ibid (1)

[10] Ibid

[11] Ibid (5)

[12]Valuation of Intellectual Property: A Review of Approaches and Methodshttps://pdfs.semanticscholar.org/a9e2/a7a4377ae882031424f3e81c6c2b5a92c257.pdf accessed on April 1, 2019

[13] Ibid

[14] Ibid

[15] Ibid (5)

[16] https://gigaom.com/2012/04/09/here-is-why-did-facebook-bought-instagram/ accessed on March 27, 2019

[17]http://www.jacksonettiandedu.com/wp-content/uploads/2018/10/ip-valuation-as-a-value-enhancement-1.pdf accessed on March 27, 2019

[18] Peter Oluka, Examining Konga-Yudala Merger https://techeconomy.ng/2018/04/23/examining-konga-yudala-merger/ accessed on March 27, 2019

[19] https://www.pmnewsnigeria.com/2019/04/01/merger-with-diamond-bank-access-launches-new-brand-logo/ accessed April 1, 2019

[20] https://www.tamimi.com/law-update-articles/intellectual-property-valuation-a-must-in-commercial-transactions/ accessed on March 27, 2019

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