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Anything but Bankruptcy! Intellectual Property Transactions In Restructuring 15th Annual Advanced Restructuring and Plan of Reorganization Conference in New York November 14, 2016 – Union League Club, New York City Copyright 2016. All Rights Reserved. Panelists Hon. Kevin J. Carey U.S. Bankruptcy Court, D. of Delaware David Bart, CIRA, CDBV RSM US LLP Mark Hayden Deloitte Advisory LLP Robert Stark, Esq. Brown Rudnick LLP Prof. Jack F. Williams, CIRA, Baker Tilly Virchow Krause, LLP CDBV 2 Introductions & Topics The dramatic rise in intellectual property (IP) transactions occurring in a restructuring environment has generated many questions: What is intellectual property? What property rights are involved and can it be sold or transferred? What is the legal context for thinking about IP in restructurings? Should IP be separated as unique assets or left as part of the overall business concern? What special issues arise in IP valuation? 3 THE WORLD OF IP TRANSACTIONS 4 What is IP? Tangible Asset: An asset that has a physical form -- includes both fixed assets, such as machinery, buildings and land, and current assets, such as inventory Intangible Asset: An asset that is not physical in nature – includes corporate intellectual property, goodwill and brand recognition -- it is the excess value of a going concern that exceeds tangible asset values, i.e. discounted cash flow or other income value less the appraised values of all other identifiable assets Intellectual Property: Defined legal rights to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce -- includes patents, trademarks, copyrights, business methodologies 5 Tangible v. Intangible Asset Values Ocean Tomo’s most recent analysis of S&P 500 asset value composition was 2015 6 Current Trends 2015 witnessed a record level of 709,453 patent and application filings Although the number of issued utility patents (the top light blue bar) decreased for the first time in a decade, design patents (shown in black) increased by approximately 10% (AcclaimIP) 7 Current Trends AcclaimIP analyzed the top patent categories for 2015 Consumer products dominate (everything from furniture to footwear, lighting to tires) The largest categories remain audio/video, medical supply, computer equipment 8 IP as Collateral IP is increasingly used as collateral for asset-based lending by bankers and financiers IP royalties and licensing fees increased from $60 billion in 1996 to over $185 billion by 2012 -- a compounded annual growth rate > 7%, even after including two significant recessionary periods in 2001 and 2009 (Kim, S. 2016, Jan./Feb. IP Asset Value as Collateral: The Increasing use of Patents as Collateral in Asset Based Lending, ABF Journal) From 1996-2005, nearly 21% of U.S. originated secured syndicated loans had been collateralized by intangible assets and property (Loumioti, M. 2012, Nov. 1. The Use of Intangible Assets as Loan Collateral) 9 IP as Collateral The presence of IP is also increasing the amount of debt that can be borrowed 40% of patenting firms in 2013 pledged patents as collateral at some point -- these firms performed 28% of all research and development and 22% of all patenting by Compustat companies in that year (Mann, W. 2015, April 27. Creditor Rights and Innovation: Evidence From Patent Collateral. UCLA Anderson School) Since 1980, approximately 16% of all domestic patents produced in the U.S. have been pledged as collateral at some point (Ibid.) The patenting companies were found to have raised more debt financing when creditor rights to the patents were strengthened (Ibid.) 10 IP’s Emerging Marketplace Growth of secondary markets has brought further liquidity: Active secondary markets in IP have grown as well: Ocean Tomo, RPX, AST and other large patent aggregators Increasing liquidity has allowed lenders to regard patents as potential collateral Private “over-the-counter” transactions, bi-lateral transactions, and recognition of IP assets in mergers and acquisitions further demonstrate the recognition of a growing liquid marketplace 11 IP Has Entered the Restructuring Realm IP has also made headlines in the restructuring realm Nortel’s 6,000 patents sold at a bankruptcy auction in June 2011 for $4.5 billion Kodak’s 1,700 digital imaging patents sold at a bankruptcy auction in February 2013 for $94 million However, projected vs. actual values indicate widely varied opinions on these assets Projected Actual Nortel $1BB $4.5BB Kodak $2.2-2.6BB $94MM 12 Shifting Legal Environment The legal environment is changing NPEs, non-practicing entities who hold a patent for a product or process but have no intention of developing it (patent trolls), accumulate patents and litigate potential infringements (2015 Patent Litigation Study. 2015, May. PwC) In 2014, jury decisions accounted for 67% of identified patent cases in last five years, and median jury awards were 31 times greater than median bench trial awards in the preceding five years Median award from 1995-2014 was approximately $5.4 million Appreciate the distinction between IP valuation and IP damages: the latter may significantly exceed the value of the former Europe is instituting fundamental reforms to patent protections EU states are in the process of rolling out a new European Patent with Unitary Effect and a single Unified Patent Court with divisions located throughout Europe – passed in 2013 by 25/28 EU states This new system is the biggest game-changer in European patent law in history -- bringing fundamental changes for patentees, defendants, their counsel, judges and everyone involved in patent litigation in Europe by creating homogenous EU-wide patent protection where it will become possible to obtain injunctions against infringing products across the entire EU with just one legal action 13 Shifting Legal Environment In the U.S., there is also increasing recognition of the importance of intellectual property issues by the U.S. Supreme Court In 2014, the Supreme Court issued the greatest number of patent and intellectual property cases in its history, marked by nearly unanimous consent – 8/10 decisions were unanimous; all 6 patent decisions were unanimous and all but 1 reversed the U.S. Court of Appeals for the Federal Circuit. (Johnson, S.N. 2014, Aug. 27. Supreme Court Brief: The Roberts Court Gets Intellectual (Property). The National Law Journal) 14 LEGAL FRAMEWORK FOR IP VALUATION ISSUES IN BANKRUPTCY CASES 15 IP in Bankruptcy Cases Section 101(35A) of the United States Bankruptcy Code states: The term “intellectual property” means— (A) trade secret; (B) invention, process, design, or plant protected under title 35; (C) patent application; (D) plant variety; (E) work of authorship protected under title 17; or (F) mask work protected under chapter 9 of title 17; to the extent protected by applicable nonbankruptcy law; Section 101(35A) excludes trademarks 16 Bankruptcy Law Perspectives on Debtor’s IP Bankruptcy Law Perspectives on the Debtor’s IP Assets: IP is an estate asset like any other estate asset. See U.S. v. Inslaw, Inc., 932 F.2d 1467, 1471 (D.C. Cir. 1991) (“It is undisputed that [Section 541(a)(1)] encompasses the debtor’s intellectual property, such as interests in patents, trademarks and copyrights.”). IP, therefore, must be included whenever bankruptcy law requires estate valuation. See In re Bernard Techs., Inc., 398 B.R. 526, 530-31 (Bankr. D. Del. 2008) (recognizing that the Trustee’s failure to account for the value of a Debtor’s assets, including its intellectual property, was problematic in a determination of insolvency). 17 Bankruptcy Law Perspectives on Debtor’s IP IP is evaluated like other estate assets, following the Consolidated Rock mantra. See In re Bicoastal Corp., 164 B.R. 1009, 1017 (Bankr. M.D. Fla. 1993)(“the real value of intellectual property is its potential to generate income.”). Starting points for bankruptcy valuation: IP can have different valuation attributes, depending on circumstance. In some circumstances, the debtor’s IP can be easily evaluated away from the business, as a standalone marketable asset-class. In other circumstances, the IP loses all value attributes away from the debtor. 18 IP Licenses Chapter 11 estates can be constrained in their ability to use the Bankruptcy Code to exploit IP value, when leased from or to third-parties and the third-party does not consent Is the Debtor a Licensor or a Licensee? 19 IP Licenses – Debtor is Licensor Where Debtor Is Licensor (i.e., third-party may use the debtor’s IP) Such licenses often qualify as executory contracts. License arrangements often fit within the Section 365 rubric of executory contracts, theoretically subject to rejection, assumption, or assumption and assignment. See In re Buildnet, Inc., 2002 WL 31103235 (Bankr. M.D. N.C. Sept. 20, 2002). Section 365(n): In the event of rejection, the non-debtor licensee may elect to treat the contract as (i) terminated or (ii) retain its license rights for the duration of the contract and any applicable extensions. If the licensee elects to treat the contract as terminated: Then the licensee loses its ability to use the content provided under the license, but has a damage claim against the debtor as an unsecured creditor. See Section 365(n)(1)(A). 20 IP Licenses – Debtor is Licensor If a licensee elects to retain its rights: Then the licensee’s access to the licensed IP will continue, so long as the licensee continues to make royalty payments due or otherwise perform under the contract. See Section 365(n)(1)(B). Can the debtor’s IP be sold “free and clear” of the licensee’s rights under Section 365(n)? One court has held (albeit in a footnote) that a buyer of estate assets may take them “free and clear” of Section 365(n) rights, per Section 365(f). See In re Portrait Corp.
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