Ed Black, co-head of Ropes & Gray’s IP transactions and technology, media & telecommunications practice groups, discusses changing values of IP and data in M&A transactions.
One of the things that's had a huge effect on the way M&A transactions have been handled over the last year or so, are changing values around intellectual property. In particular, if you look at the way patents have changed in value, the way data has changed in value and the way territories and jurisdictions play into the value calculation, we've ended up with transactions that have shifted in structure, shifted in form. Some have gone and not gone based on these issues.
On the patent side, what we're seeing is finally the effects washing through of patent reform. Patents have generally gone down in value. Method patents are no more. The PTAB proceedings where you can object and get patents cancelled are very effective. Offsetting a little bit is the fact that the European Union is finally getting online with unified patents; whereas, a patent used to be mainly valuable in the U.S., now that patent is also valuable in Europe with a very large commercial footprint. But these shifting values mean that deals that used to be patent-driven and used to be done almost exclusively to get or divest patent values have now shifted around. Patents are just much less important – you see much less talk about them, less diligence activity, less deal terms, less structures.
On the other hand, data has skyrocketed up in value. I think people are generally aware that artificial intelligence and big data is taking over everything we do. Half the stuff on your phone, all those apps – they're all artificial intelligence, and artificial intelligence needs data. So companies that have data and have organized data that can feed into these artificial intelligence structures have gone dramatically up in value. We've seen this in transactions in the health care space and certain other spaces where everyone sees it coming. But we also see it in consumer goods and other industries, where people have not traditionally thought of data as being key, but now it is. And with data going up in value, we also see some industries coming online around IP in ways they haven't before. So in investment management, for example, where we used to have human judgment being the key to deciding what stock to buy and when to buy it, now computers are all making those trades. And so, investment management organizations are investing heavily in technology, artificial intelligence and data sources. And we're seeing transactions coming in that reflect these new values – transactions we would have never seen a few years ago.
So in thinking about what these trends mean, I would spot sort of three forward-looking issues. The first is: every business now is an opportunity to collect and manage data. And collecting and managing data is going to drive value in your day-to-day commercial operations, but it's particularly going to drive value if your company is ever thrown into an M&A setting. It's going to be featured in the road show, the banker presentations, etc., and so start thinking about that now. Second piece, particularly around patents: global patent strategy is more important than ever. The availability of rights that are going to mean something commercially in the European Union should be affecting everyone’s forward strategy, starting right away. I think a lot of people have not yet gotten onboard with that. Brexit pushed things off a little bit, but it looks like that's only a delay, not a change in course. Also, patent monetization, that final piece. You know, in the past years, we've had deals where people would get a patent and they'd say, "Gee, I can build a standalone business around this patent; licensing it, buying it, selling it." Patent monetization as a standalone business has taken a huge hit. Buying value, selling values of patents have dropped precipitously. Large companies that are focused on that activity have seen some tough times and if you're thinking that you're in an organization that has an IP strategy, you're looking to develop assets that will help you in an M&A or reorg setting, patents are crucial, not unimportant – just not as important as they used to be. Whereas, data, data analytics have sky rocketed up and you should be working with those tools.