Patent ValuationImproving Decision Making through Analysis
Wiley Finance, Band 571 1. Aufl.
A practical resource for valuing patents that is accessible to the complete spectrum of decision makers in the patent process In today's economy, patents tend to be the most important of the intellectual property (IP) assets. It is often the ability to create, manage, defend, and extract value from patents that can distinguish competitive success and significant wealth creation from competitive failure and economic waste. Patent Valuation enhances the utility and value of patents by providing IP managers, IP creators, attorneys, and government officials with a useable resource that allows them to use actual or implied valuations when making patent-related decisions. Involves a combination of techniques for describing patent valuation Includes descriptions of various topics, illustrative cases, step-by-step valuation techniques, user-friendly procedures and checklists, and examples Serves as a useable resource that allows IP managers to use actual or implied valuations when making patent-related decisions One of the most fundamental premises of the book is that these valuation skills can be made accessible to each of the various decision makers in the patent process. Patent Valuation involves narrative descriptions of the various topics, illustrative cases, step-by-step valuation techniques, user-friendly procedures and checklists, and an abundance of examples to demonstrate the more complex concepts.
Preface ix Acknowledgments xiii PART ONE Foundations for Patent Valuation and Decision Making 1 CHAPTER 1 Valuation Basics 3 What Is Value? 5 The Valuation Process 7 Identifying the Subject Matter of the Valuation 9 Valuation Misconceptions 12 The Three Basic Valuation Methodologies 16 Limitations on Rationality in Valuation and Decision-Making Exercises 20 References 20 Notes 21 CHAPTER 2 Patent Basics 23 What Is a Patent? 26 Anatomy of a Patent 32 Criteria for a Patent 33 Transferring Patent Rights 36 Nationality of a Patent 39 References 40 Notes 40 CHAPTER 3 Using Valuation Analysis to Improve Patent Decision Making 43 Patent Decisions 45 Maximizing, Optimizing, and Satisficing: How Much to Invest in Valuation Analysis 52 Preliminary Portfolio Valuation Audit: A Practical Valuation Technique 58 References 65 Notes 65 CHAPTER 4 Disassembly 67 Disassembly and Decision Trees 69 Using Disassembly to Develop Higher-Quality Data 75 Using Disassembly to Understand Data Better 84 References 86 Notes 87 PART TWO Patent Valuation Techniques 89 CHAPTER 5 Preparing for the Valuation 91 Understanding the Bundle of Legal Rights 91 Ownership Interest in the Patent 93 Description of the Patent Rights 99 Encumbrances on the Patent Rights 100 Understanding the Patent Rights’ Neighborhood 102 Exploiting the Patent Rights 103 References 117 Notes 119 CHAPTER 6 Income Methods: Discounted Future Economic Benefits Analysis 121 Basic Arithmetic of the Discounted Future Economic Benefits Analysis 124 Garbage In, Garbage Out: The Challenges Lay in the Inputs, Not the Math 131 Projecting Future Net Economic Benefits 133 Developing Projections from Analytical Analyses 143 Estimating the Discount Rate 151 References 159 Notes 160 CHAPTER 7 Advanced Income Methods: Incorporating the Value of Future Decision Opportunities 161 Option Contracts and Their Value 164 Real Options 168 Valuing Patents Using Option-Pricing Insights 170 Using Decision Trees to Incorporate the Value of a Patent’s Future Decision Opportunities 174 References 185 Notes 186 CHAPTER 8 Market Methods 189 Markets and Patent Rights 191 Competitive Exchange 198 Comparable Transactions 205 Alternatives to the Core Market Methods 207 References 214 Notes 216 CHAPTER 9 Cost Methods 219 A Few Accounting Principles 220 Cost of Development: Questionable Valuation Tool 224 Cost of Reasonable Alternatives: Establishing a Maximum Price 227 References 230 Notes 231 PART 3 Patent Valuation in Practice 233 CHAPTER 10 Pricing Patent Licenses 235 Payment Structures 236 Determining the Price for a License 246 Less Formal Valuation Techniques for Setting Royalty Rates 248 References 264 Notes 265 CHAPTER 11 Patent Infringement Damages 269 U.S. Legal Framework for Calculating Damages in Patent Infringement Cases 271 Lost Profits 275 Reasonable Royalty 285 Additional Patent Damages Matters 297 Answering the Sue or Settle Question 299 References 306 Notes 307 CHAPTER 12 Unlocking the Potential Value within Patents 313 Keeping Pace with Economic Changes 316 Patents as Collateral for Secured Loans 317 Securitizing Patents 325 References 333 Notes 334 CHAPTER 13 Valuation in Patent-Based Tax-Planning Strategies 337 Examples of Patent-Based Tax-Reduction Strategies 339 Transfer Pricing 344 Determining Transfer Prices for Patent Rights 348 References 358 Notes 359 About the Authors 363 Index 365
WILLIAM J. MURPHY is a Professor of Law and Chair of the Commerce and Technology Law Graduate Program at the University of New Hampshire School of Law (formerly the Franklin Pierce Law Center), one of the top schools of intellectual property in the country. Murphy cofounded UNH Law's Intellectual Property Valuation Institute and currently serves as its director. He is the author of R&D Cooperation among Marketplace Competitors. Murphy earned a JD degree from Pennsylvania State University's Dickinson School of Law, and he holds master and doctorate degrees from Harvard Business School. JOHN L. ORCUTT is the Associate Dean for Faculty Research and a Professor of Law at the University of New Hampshire School of Law. Orcutt cofounded UNH Law's Intellectual Property Valuation Institute and its International Technology Transfer Institute. Orcutt is the author of Shaping China's Innovation Future: University Technology Transfer in Transition. Before coming to UNH Law, Orcutt worked as a Silicon Valley investment banker and a capital markets attorney. Orcutt earned a JD degree from the University of California, Berkeley. PAUL C. REMUS is a shareholder of the law firm of Devine, Millimet & Branch, P.A., in Manchester, New Hampshire. Remus concentrates his intellectual property practice in prosecuting patent applications, drafting noninfringement opinions, and licensing technology. He also mediates disputes involving intellectual property and is on the U.S. District Court Mediation Panel List. Remus also represents both companies and venture capitalists in private placements and other financing involving intellectual property. Remus earned a JD degree from the University of Michigan.
Patent Valuation Improving Decision Making through Analysis In today's economy, entrepreneurial energies, government attention, and every company's resources are—rightly so—more and more focused on developing various forms of intellectual property (IP), with patents predominantly viewed as the most important of these intellectual property assets. Patent Valuation: Improving Decision Making through Analysis enhances the understanding of these assets by providing IP managers, IP creators, attorneys, and government officials with a hands-on resource that allows them to use actual or implied valuations when making patent-related decisions. In Patent Valuation, intellectual property experts William Murphy, John Orcutt, and Paul Remus explore a broad range of topics, including: Foundations for patent valuation and decision making Using valuation analysis to improve patent decision making Using disassembly to develop higher quality data Patent valuation techniques Valuing patents using option pricing Unlocking the potential value within patents Valuation, particularly with regard to patents, continues to be an increasingly important element in management, litigation, administrative proceedings, and basic decision making, as well as in informing complex legislative and policy choices. Filled with illustrative cases, step-by-step valuation techniques, user-friendly procedures and checklists, Patent Valuation is a practical guide accessible to the complete spectrum of decision makers in the patent process.
Praise for Patent Valuation "With no nonsense or intellectual posturing, the authors tell us what a patent valuation is really about . . . in real life. Readable, sound, and eminently useful, the authors have presented many new and practical insights about the valuation process and about the nature of patents as business assets. While focused on patents, their insights apply to any intellectual property and, in fact, to any valuation. Professionals, corporate managers, attorneys, and anyone else in the IP world will find themselves attached to this clearly written book." —Gordon V. Smith, author of Trademark Valuation and Intellectual Property "Innovation is the key to success for individuals, companies, and entire nations. Patents are the key to providing a marketplace for innovation. In Patent Valuation, Murphy, Orcutt, and Remus cut through the legal complexities of patents to help you figure out your bottom line—what are they worth?" —Jon Dudas, President of FIRST®, Under Secretary of Commerce for Intellectual Property, and Director of the United States Patent and Trademark Office, 2005–2009 "Effective management of IP assets is enhanced when decision making takes into consideration the value of the assets. This new work by William Murphy, John Orcutt, and Paul Remus presents a number of accepted models for calculating value and practical application of these models. I highly recommend Patent Valuation as a reference for those IP professionals who want to leverage greater value from their IP assets." —David Koris, General Counsel, Head of Intellectual Property, Shell International BV, The Hague, Netherlands "Going beyond the conventional primer, this book provides a practical framework that incorporates the art of defining a value proposition with the science of quantitative examples to drive a productive dialogue of patent valuation." —Rajiv Patel, Partner, Fenwick & West LLP
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