MISSION INTANGIBLE

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MISSION:INTANGIBLE, the blog of the Intangible Asset Finance Society, offers critical comments on intangible asset, corporate reputation, and finance; supplemented by quantitative reputation metrics. Intangible assets include business processes, patents, trademarks; reputations for ethics and integrity; quality, safety, sustainability, security, and resilience; and comprise 70% of the average company's value. MISSION:INTANGIBLE is a registered trademark of the Intangible Asset Finance Society.

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Liquidity: You're at risk for doing it wrong

C. HUYGENS - Friday, July 19, 2013
Since the Pittsburgh Conference of the G20 in 2009, where Huygens used the skirmishes with anarchists to educate his daughter on the ideals of civil disobedience and the realities of tear gas, there’s been a coordinated effort to mitigate the risk of another global liquidity crisis. The consensus strategy among world governments is capital adequacy.

“Adequacy” is a fuzzy concept, but the intent is that institutions would hold capital sufficient to meet the expectations of stakeholders for unfettered access to funds on demand; i.e., liquidity. “Expectations” is also a fuzzy concept, but well appreciated by followers of this blog. The meaning here is that as long as stakeholders expect adequate capital to meet demand, there will not be a panic-driven run on financial institutions.

The word used in BaFin’s (Germany) regulations for this expectation of adequate capital is -- wait for it -- “reputation.” Similarly, this expectation of adequate capital is what Alan Greenspan meant when he said “In a market based on trust, reputation has enormous value.” Liquidity risk is therefore linked to reputation risk when the latter is defined as “the threat to enterprise value when myriad stakeholders perceive that corporate behavior violates their expectations."

Reputation risk is a governance and control problem, and it can be exacerbated through adverse publicity, but it is first and foremost not a PR issue. The legislative problem, and the source for "doing it wrong," is that the word “reputation” has a lay meaning -- likeability -- which is how at least some regulators are interpreting the word. Rereading the paragraphs above and replacing the notion of “expectation for capital adequacy” with “corporate likeability,” leads to a diversity of wrong activities.

The first group of wrong activities comprise restrictions on business counterparties -- not on the basis of creditworthiness, but rather on the basis of likeability. This is flat-out goofy, as discussed in American Banker and partially in Forbes. The second group of wrong activities comprise fostering business controls over the wrong business processes -- not on the controls that manage stakeholder expectations of capital adequacy, but rather over drivers of likeability. This will direct corporate resources in the wrong direction, and do nothing for addressing the core risk of capital adequacy, as discussed both in Forbes and an earlier Intangible Asset Finance Society blog note.

Reputation: Lost in translation

C. HUYGENS - Tuesday, July 16, 2013
While losses in translation can be funny, there is a dark side. Last January, the press circulated a story about the British tourist who said he was going to "destroy America," meaning he was going to party hard. Homeland Security took the threat seriously.

The current government misunderstanding, involving liquidity risk and reputation, is causing grief on sources of revenue while missing the point about liquidity risk mitigation involving an estimated $800 billion in contingent capital. As described in the linked article from Forbes magazine earlier this month, senior regulators are misinterpreting ‘reputation’ in its lay sense of ‘likability.’ Regulators are suggesting banks avoid doing business with entities that may not be ‘likeable.’

However, as the term is employed in the Federal Reserve’s Interagency Policy Statement on Funding and Liquidity Risk Management (March 17, 2010), the term is used in its psychology sense as an ‘expectation of behavior.’ It's the meaning of ‘reputation’ Alan Greenspan intended when he explained that in a market based on trust, reputation has significant value. It's the meaning captured in the metrics from Steel City Re and Consensiv.

The Policy Statement (download here) recommends that to “mitigate the potential for reputation contagion, effective communication with counterparties, credit-rating agencies, and other stakeholders when liquidity problems arise is of vital importance...In addition, groupwide contingency funding plans, liquidity cushions, and multiple sources of funding are mechanisms that may mitigate reputation concerns.”

Expectation management, in other words, should be a combination of effective communication and authentic reliable sources of contingent capital. If counterparties expect that there will be no liquidity problem, they will not panic and trigger a bank run that will precipitate a liquidity crisis. This is a matter of balance sheet transparency. Likeability has no role here.

UBS: Truth in Libor

C. HUYGENS - Thursday, March 17, 2011
“We are committed to retaining the reputation and integrity of BBA Libor, which continues to be the authoritative benchmark of the wholesale money market,” said a spokesman for the British Bankers’ Association, according to the Financial Times. 

That there should even be a question about the  London interbank offered rate's -- Libor’s -- integrity is problematic. As the Financial Times explains, Libor is used as a reference rate for about $350,000bn in financial products.

Regulators in the US, Japan and UK are investigating whether some of the biggest banks conspired to “manipulate” this benchmark interest rate. The investigation centres on the panel of 16 banks that help the British Bankers’ Association set  Libor – the estimated cost of borrowing for banks between each other.

The probe came to light on Tuesday when the Swiss bank UBS (NYSE:UBS) disclosed in its annual report that it had received subpoenas from three US agencies and an information demand from the Japanese Financial Supervisory Agency. The other banks on the panel are: Bank of America, Barclays, Citigroup, Credit Suisse, Deutsche Bank, HSBC, JPMorgan Chase, Lloyds, Rabobank, Royal Bank of Canada, Bank of Tokyo-Mitsubishi, Norinchukin Bank, Royal Bank of Scotland and West LB.

As to the Libor calculation algorithm, “…it is fully transparent – all of the data inputted by the contributor banks is publicly available, as is our methodology,” said the BBA.

Pennies from heaven: Monetizing intellectual capital

Nir Kossovsky - Saturday, April 10, 2010
Ken Jarboe, President of Society partner Athena Alliance and Chair of the Society's Public Policy Committee has given us permission to share the following post from the blog, Intangible Economy.

As the U.S. economy evolves, intangible asset investments are becoming vital to economic growth and sustainability. But, as our new paper "Intangible Assets: Innovative Financing for Innovation" outlines, intangible assets can also be the source of financial capital. As industry has invested capital in research and development (R&D) to create new technology and advance other creative activities, a niche market of firms specializing in intangibles-based financing is springing up. Some intangible assets--traditional IP consisting of patents, trademarks, and copyrights--have been used in sale, leasing, equity, equity-debt, debt, and sale-leaseback transactions to finance the next round of innovation.

The paper outlines a number of public policy actions that can be taken to foster the use of intangible asset financing. These include streamlining the technology transfer process, developing underwriting standards to cover the use of intangible assets as collateral and making financial statements more transparent with respect to intangible assets.

The deals that have been done demonstrate that IP and other intangibles are viable assets to secure capital. Unlike other "exotic" financing vehicles, however, intangible-asset financial products are built on some of the most basic financing mechanisms. Far from exotic, they use traditional techniques in new ways to help companies innovate and grow. As the paper shows, there is plenty of opportunity to harness the power of intangibles.

The paper is a summary of our two reports:
Intangible Asset Monetization: The Promise and the Reality and Maximizing Intellectual Property and Intangible Assets: Case Studies in Intangible Asset Finance. Published in the Winter issue of Issues in Science and Technology, the paper is also available on the Issues website.

IAFS Membership Drive

Nir Kossovsky - Wednesday, February 24, 2010
The IAFS launched its 2010 membership drive this past week. This is why. On February 28, new US SEC regulations will drive into the boardrooms risk, reputation and intangible asset management. 

You have a decision. Will you be at the table or on the menu?

These regs mean that every board member, in fact every top executive, can expect major new challenges. Members of the Intangible Asset Finance Society (IAFS) will be prepared. Here’s how:

1. Thought Leadership. The IAFS is the only interdisciplinary Society of professionals committed to the financial exploitation of intangible assets. That translates into enhanced pricing power; lower operating and credit costs; and higher net incomes and earnings multiples.

2. Risk Management. A lost reputation can destroy a firm overnight. IAFS can keep you up to date with risk management strategies for ethics, innovation, quality, safety, environmental sustainability, and security.

3. Preferential Pricing. Society members receive preferential rates for IAFS products at our new store and discounted registration to various professional meetings. Discounted registrations for the March ICAP Ocean Tomo meeting in San Francisco and the June IP Business Congress in Munich, for example, are now offered.

4. Incentive Premium. Sign on for your academic or corporate membership including payment by March 15 and receive a complementary copy of the IAFS’s latest book, Mission: Intangible. Managing risk and reputation to create enterprise value (a $29.95 value).

Click here to learn how our strengths in Thought Leaders and Risk Management, financial benefits such preferential pricing, and premiums such as the book shown at right make joining the Society today an offer you can't refuse.

Leftovers - M:I MB of 10-Jan-8 (Part I)

Nir Kossovsky - Tuesday, January 12, 2010
Among the educational resources offered by the Society are the Mission:Intangible® Monthly Briefings. These one hour events comprise about 45 minutes of prepared remarks backed up by presentation materials, and about 15 minutes of responses to questions submitted by listeners. Often, because of time constraints, there are questions leftover.

The 8 January 2010 Mission: Intangible Monthly Briefing comprising a robust panel of Society committee chairs evoked many questions. As promised, here are some of the leftovers.

QUESTION TO CATHY REESE: Your comments about the concept of director's duty of oversight driving greater attention to intangibles management are intriguing. Must a new area like this be built case by case or can there be a catalyst that speeds up the process (such a new set of laws and/or regulations). Is this reasonable to expect in the space of the next ten years?

ANSWER: Directors and officers currently have an affirmative duty under Delaware fiduciary law to oversee and monitor corporate assets and liabilities. Delaware's highest court has said that directors and officers can be held personally liable for losses suffered by the corporation as a result of their inattention. That court has also said that directors violate this duty by failing to (i) implement "reporting and information systems and controls" designed to ferret out such risks and report them on a timely basis to the board, or (ii) failing to monitor and update such systems and controls and thus ignore red flags that can lead to corporate liability. The losses engendered by one patent infringement suit can be enormous, particularly in a wilful infringement suit where damages may be trebled because the company "wilfully" continued to infringe when it knew or should have known of the infringement. I believe that the catalyst that will speed up the process and lead to nationwide awareness that this body of law applies to IP or IA risks and losses, would be one shareholder suit against corporate directors seeking to recover from them personally these infringement damages. Another route might be a shareholder suit to recover market losses for director and officer failure to monitor or address reputational risks before they damaged the value of the company. Shareholder actions for breaches of fiduciary duties by director and officers that are filed in the Delaware Chancery Court receive nationwide attention from corporate lawyers and the boards that they advise and can lead to instant changes in board focus.

Cathy L. Reese, Esq.
Fish & Richardson P.C.

QUESTION TO MARK LUCIER: In your presentation, you made reference to “IA-based financial products and investment vehicles.” How do we position these products so as to avoid being tainted by the recent financial derivatives debacle?

ANSWER: When I was talking about financial products and investment vehicles, what I was referring to was inventing new ways to "ring fence" intangible assets and the risks associated with them, thereby enabling investors to own or finance those assets or bear those risks. The creativity and complexity, then, is more about how we isolate the assets and risk than in how we slice, dice and allocate cash flows among various classes of investors.....think of it more as creating an intangible asset tracking stock or risk-linked security than as engineering a multi-tranche royalty-based CDO or securitization. Alternatively, to the extent we're able to quantify value & risk associated with intangibles, and further, if we can somehow link that to more traditional measures of financial or equity value and risk, then that could serve as the basis for a financial product that enables a company or its outside investors to share in the value being created by the company's intangibles or to hedge against the risk associated with those intangibles.

Of course, your point is well taken that regulators and the general public are skeptical of (read: hostile toward) anything that requires more than one or two boxes and arrows to describe its structure. A financial product's purpose should be plainly evident to those on Main Street and not just to those of us on Wall Street. If we are to be successful in creating these instruments and having them be broadly accepted, our driving motivation needs to be a focus on creating something that funnels capital to intangible assets to support and encourage innovation, rather than on cleverly shuffling the capital structure deck and obfuscating the instrument's true purpose. If we approach the creation of new financial products from that perspective, then "positioning" what we've created will simply be about highlighting the substantive economic benefits, rather than hiding something from the regulators or the Wall Street Journal.

Marc Lucier
Deutsche Bank

Case studies in IA Finance

Nir Kossovsky - Monday, November 02, 2009
The Society's mission is to increase the visibility, transparency, and positive impact of intangible asset finance through education, the promulgation of standards, and advocacy. The Athena Alliance, a friend of the Society, specializes in advocacy. Its President, Ken Jarboe, provided us with the following:

As innovative companies struggle to raise funds, intellectual property and intangible assets are providing alternative ways of financing innovation. But greater awareness of them as an asset class is needed. Raising that awareness is the focus of a new report from Athena Alliance, Maximizing Intellectual Property and Intangible Assets: Case Studies in Intangible Asset Finance by Ian Ellis, a former U.S. Department of Commerce official specializing in intellectual property and international trade.

The report outlines increasing, but still nascent, means of financing innovation based on these assets in public, private and venture capital markets. As industry has invested capital in research and development to develop new technology and advance other creative activities, intellectual capital has become a valuable asset class, according to the paper. In response, firms specializing in intangible-based financing are springing up, using them to raise capital for the next round of innovation.

The paper details equity, equity-debt, debt, and sale-leaseback transactions, both private and public, that have helped companies raise capital, based on careful, rigorous analysis and conservative underwriting standards. For example, the author notes that in 2000, there were two public deals using royalty securitization, raising $145 million. In 2007-08, $3.3 billion was raised in 19 deals.

Unlike some of the exotic financial vehicles, however, the financial products discussed in this paper are some of the most basic financing mechanisms in business. The innovation is in recognizing the value of intangible assets for corporate finance. These new financial firms are using traditional financial techniques in new ways to help innovative companies.

But more should be done.

One important step would be developing sound, industry-wide, underwriting standards, according to the report. For example, Small Business Administration (SBA) rules permit its loans to be used for acquisition of intangible assets when buying on-going businesses. Rules are unclear on whether those assets can be used as collateral. The paper recommends that SBA work with commercial lenders to develop standards for using intangible assets as collateral.

The report builds on earlier Athena Alliance papers, notably Intangible Asset Monetization: The Promise and the Reality.

Get a second life

Nir Kossovsky - Tuesday, September 22, 2009
From IP 360, the legal newswire, we share the following: "Two makers of virtual clothing, sex toys and erotic animations for sale in the online alternative reality game Second Life have slapped the game's maker with putative class action allegations of trademark and copyright infringement, saying the company allows piracy of their products to run rampant in Second Life and even profits from it."

The Intangible Asset Finance Society takes interest in this IP issue. We are intrigued because virtual sex toys and erotic animations are unambiguous examples of intangible assets and because the alleged millions of dollars at stake comprise a material level of finance.

We quote from the legal blog, Above the Law: "We’re intimately familiar with neither Second Life nor sex toys, but our understanding is that the two go hand in hand. Eros LLC, a virtual sex toy maker, has apparently made a pretty penny selling sex goods in Second Life. But now other Second Life vendors are ripping off its designs and selling knock-offs. Eros’s CEO Kevin Alderman — who goes by Stroker Serpentine in Second Life and built the first in-world sex bed, a digital bed with built-in sex position animations — is filing a class-action suit against Second Life’s creators for enabling this virtual counterfeiting. Alderman, who has been called “the ‘Hugh Heffner’ of the digital millennium,” wants Second Life to shut down its virtual version of Canal Street (counterfeit central in New York). "

The working elements of the Society are its standing committees that address areas of intangible asset finance practice. We asked Darren Cohen, Chair of our Quality & Integrity Asset Management Commitee, and partner in the Intellectual Property Practice Group at Reed Smith, to give us the "inside baseball" view of this case. We also asked David Ruder, Chair of our Trademark Asset Management Committee; VP, Business Development, at RPX; and a founder of Terrier IP Investments, LLC, a private investment firm focused on intellectual property-based investments in firms backed by hedge funds and private equity, for his perspective on asset monetization.

First, Darren's perspective:

At first glance, this case challenges accepted notions of intellectual property infringement. For example, under established trademark law, infringement arises when there is a likelihood of consumer confusion among the relevant purchasing public. On this basis, a plaintiff in a trademark case may likely claim damages based on lost or diverted sales, which seem on its face to be anathematic to the use of trademarks, copyrights or other intellectual property on Second Life.

However, it is undeniable that the Second Life population and the "real" life population overlap, and behavior in one medium can surely have an effect, adverse perhaps in this case, on the other. Indeed, reputation and risk management is just as vital in these nontraditional venues as they are in the ordinary course of trade (the standard for bona fide trademark use in commerce). This type of activity may further prevent one from being able to fully exploit IP rights and build IP equity, in particular brand equity, by weakening, diluting and tarnishing trademark rights or serving as a barrier to potential licensing opportunities and avenues. It should not be lost on any holder of IP rights that real profits are being made in forums like Second Life, and whether or not a rights holder wishes to enter these untraditional and "secondary" markets, they should have the same enforcement and exploitation rights, as well as brand and reputation control, as in any other channel of commerce. 

Second, David's perspective:

When I look at trademark rights, the perspective I usually take is a financial one: whether I can acquire the relevant trademark and create licenses across territories and different classes of goods and services and make money. To put this in relief, consider a hypothetical brand licensing campaign by Eros LLC that wants to license out its “SexGen” brand of virtual sex toys to the “real world” in multiple countries or even to a company that wants to sell SexGen sex toys in the Second Life world. If I were a potential licensee one of the questions I would pose to Eros is what trademark rights Eros actually possesses.

To defend its assertion that it owns trademark rights, Eros would point to its US Federal trademark registration 3,483,253 which covers “providing temporary use of non-downloadable software for animating three-dimensional characters.” What is interesting is that in the goods and services there is no mention of “sex toys” at all. In fact, this is in fact a broad description of software. Interestingly, given some recent caselaw this registration may be considered overbroad and thus cancelled if it the statement of use should have been limited to just sex toy software downloads. I have not done research to see if Eros has made non-US trademark applications and in the United States, but Eros did include a specimen of use including a Second Life screenshot to obtain its trademark registration and trademark registrations are presumed to be valid.

From a territorial standpoint one would ask whether Eros has any rights to its trademarks beyond the United States. Again, I don’t know if Eros has secured any non-US trademark registrations. I don’t know if SexGen’s use on servers outside the United States satisfies use requirements to establish rights in other countries. I also don’t know if use is satisfied by consumers on their US computers accessing non-US servers or non-US computers accessing US servers. As a potential licensee, all I have to go on thus far is the US trademark registration and the use on the Second Life game. Based on trademark law as I know it, if the registration is valid, I would think that Eros has the rights for SexGen not only in Second Life, but also any other virtual world that might be created by any software company. I might consider licensing the SexGen trademark for other virtual worlds, but thus far I think I would only have US protection.

From a goods and services standpoint, it seems at first blush that Eros has established no trademark rights at all to any actual real world sex toys as everything so far has been limited to just software as described in the registration. I would not be comfortable as a potential licensee that I should invest resources to create a real world SexGen sexy toy line via license unless there was some concrete evidence that the SexGen brand is used on real life sex toys or that there is actual confusion among consumers of real life sex toys and virtual sex toys as to source. Again I think this trademark really only would cover software.

If I were to challenge the rights of Eros, I would address the question of how “commerce” is established by Eros in the Second Life world and whether it meets the threshold of use in commerce under trademark law. I don’t know if Eros has made any kind of concessions via license agreement or otherwise to Second Life in its ability to log into the Second Life servers and create its virtual sex toys using Second Life software and servers without giving its rights away. What kind of “commerce” is occurring here and how exactly is Eros paid for offering its software services (and who actually pays Eros)? These are very fact-specific determinations that go to the heart of why trademark rights are granted for any kind of product or service.

Assuming Eros can prove that it has direct relationships with end users that knowingly pay Eros money for use of the virtual sex toys or that Second Life knowingly agreed to a mechanism whereby Eros is paid for its virtual sex toys, then I think Eros has a strong case that it has established trademark rights and these likely have value. It would be especially valuable for Eros to prove users have knowledge of the SexGen brand outside of the Second Life world. For instance perhaps rights can be purchased through eBay.

So far I’m leaning in favor of Eros having valid trademark rights but I would not be comfortable licensing the SexGen brand for anything at this point because I think the rights are in flux and a court needs to make a ruling about what rights actually exist at this point, if any. Even if a court affirms that Eros has rights in the Second Life realm, if I were Eros I wouldn’t be hoping for much compensation unless it can somehow enjoin Second Life from selling virtual sex toys (or if it has broader coverage, the Second Life software altogether). Second Life could simply respond by programming away sex in its world altogether (opening a new branch of virtual anti-trust law, I’m sure). 

Valuation truth vs truthiness

Nir Kossovsky - Friday, April 24, 2009
The past week, Intellectual Asset Management magazine, the official publication partner of the Society, has been hosting a debate on intangible asset valuation. As Joff Wild, editor of IAM magazine describes it,

One subject area that always seems to generate a large number of reader comments is valuation. Witness, for example, the fantastic thread tha developed following a post I wrote back in January entitled Intangible values collapse - the old 70% to 80% claim is now officially dead and buried. Among those taking part in that conversation - indeed the man who indirectly inspired it - was Nir Kossovsky, executive secretary of the Intangible Asset Finance Society and CEO of Steel City Re. Now Nir has written in to question some of the points made by Pat Sullivan and Alexander Wurzer in their IAM article on IP/intangible valuation myths, which I recently previewed on the blog.

The Intangible Asset Finance Society has weighed in on the debate along with our colleagues at the Athena Alliance, with classic language and arguments from the school of American Pragmatism that reflect the financial market principles we support. To follow the debate on the IAM site, click here. To read the comments of Ken Jarboe, President of the Athena Alliance on the Alliance blog, Intangible Economy, click here.


Eclipse of the sun

Nir Kossovsky - Monday, April 13, 2009
Last Monday, 6 April, the world learned that IBM (NYSE:IBM) was no longer interested in acquiring Sun Microsystems (NASDAQ:JAVA). Speculation as to the reasons for the collapsed deal include price, intellectual property and hubris. Let's look at the intangibles of this deal from the perspective of the Steel City Re  Intangible Asset Finance (corporate reputation) (IA) index.

The charts below shows IBM. As seen in the upper chart, among the 48 companies comprising the Computers and Peripherals sector, IBM has ranked in the top 99th or 100th percentile this past year. In terms of return on equity, it outperforms the median of its peers by 33%. As seen in the lower chart, the volatility of its index score is only two orders of magnitude and is decreasing. This is a company with an exceedingly strong reputation that stakeholders believe they understand, and clearly like.



The charts below shows Sun Microsystems. As seen in the upper chart, among the same 48 companies comprising the Computers and Peripherals Group, Sun (JAVA) has ranked no higher than the 50th percentile a year ago and is now ranking below the 20th percentile. In terms of return on equity, notwithstanding the surge in anticipation of a potential deal, it has underperformed its peers by nearly 20%. As seen in the lower chart, the volatility of its index score is three orders of magnitude and is now increasing. This is a company with a rapidly deteriorating reputation that stakeholders are liking less, and are concerned they no longer know.



The data indicate that since Sun Microsystem's reputation is not going to help IBM, the latter can afford to wait until hubris is humbled and the price stabilizes.



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