Intellectual property (IP) forms a fundamental element of most businesses. It encompasses creativity, innovation and, in some instances, education. In certain circumstances, intellectual property rights may be registered, making provision for particular, exclusive rights over an invention, creative expression or brand. Securing protection for intellectual property, may provide for a competitive market place advantage, and facilitate an increase in profit margins and growth.
Multiple forms of IP rights are available. Available rights include, but are not limited to, trademarks, patents, designs, plant variety rights and copyright. IP rights are predominantly territorial, meaning enforceability is often limited to the country in which the right is registered, granted or otherwise issued.
A particular advantage of licensing over a sale is that the potential to maximise profits is maintained better under a licence by way of ongoing payments. The financial benefit of selling IP is certainty of payment. However, the transaction is disadvantaged in that the return on the investment made in developing IP is limited to the sale price.
Most licence agreements require the licensee to pay fees comprising of an upfront licence fee and ongoing royalties. To refer back to the earlier analogy, the fee scheme may be compared with a rental plan for a car lease with the requirement of regular monetary instalments.
Royalties are generally calculated as a percentage of the net sales or profits, or on an amount per unit of the licensed property sold. Three main methodologies exist in relation to royalty valuation, including the cost approach, comparable market approach and the income approach.
However, as a starting point, the IP owner often seeks to be paid around 25% of the net value obtained by the licensee. For example, if a licensee was selling jeans at a profit of $40 then the royalties might be structured in such a way that the owner of the trade mark under which the jeans were sold (e.g. Levi) would make $10 per pair of jeans.