“Each IP Asset can have multiple types of Intellectual Property Rights (IPR) which can generate economic benefits, either from earning royalties or from licensing and franchising fees.”
Intangible (IP) Assets
An Intangible Intellectual Property Asset is an identifiable, non-monetary, without physical substance, separable and controllable asset with future economic benefits. The common examples of Intellectual Property (“IP”) Assets are computer software, patents, copyrights, motion picture films, trademarks, industrial designs, integrated circuits designs and plant varieties.
Each IP Asset can have multiple types of Intellectual Property Rights (IPR) which can generate economic benefits, either from earning royalties or from licensing and franchising fees. The significant characteristic of an IP Asset is that its IPRs are non-extinguishable. That means, multiple rights can be issued to multiple entities in multiple jurisdictions (provided an IP Asset is duly registered) for the same IP Asset. This feature enhances the earning potential of the owner of IP Asset. With the increasing number of successful inventions and innovations, the owner of a portfolio of IP Assets gain reputation and becomes a well-known brand, which can further enhance the market share.
In accordance with IRAS Section 19(B)(11) “Intellectual Property Rights” means the right to do or authorize the doing of anything which would, but for that right, be an infringement of any patent, copyright, trademark, registered design, geographical indication, layout-design of integrated circuit, trade secret or information that has commercial value, or the grant of protection of a plant variety.”
The motivation for development of IP Assets begins with incentives and benefits under Income Tax Regulations of a State. For instance, several leading nations like in Singapore, provisions under the IRAS Act offer a range of benefits for continuous growth and sustainability of innovative companies. Starting from a concessionary rate or tax free for a period of up to 10 years subject to IPRs qualified under IRAS Regulations. In addition, for IP Assets generated within Singapore, the deductions and allowances may also be available for qualified entities and IP assets:
- Deduction for costs for protecting intellectual property – up to 300%
- Deduction for expenditure on licensing intellectual property rights
- Enhanced deduction for expenditure on licensing intellectual property rights
- Capital Allowances – writing-down allowances for intellectual property rights
- Rates of Tax – Concessionary rate of tax for intellectual property income
Recognizing Intellectual Property Assets
Harnessing the benefits of intellectual property begins with identifying which type of assets can be classified as intangible assets and then separating intellectual property assets owned by an entity. The three factor criteria for recognizing IP assets in accordance with International Financial Reporting Standards (IFRS 38) are identifiability, Control and Future Economic benefits. These factors are also fundamental to the sustainability of an entity and indicators of future growth. Thus, for an entity to be sustainable there is limit to investment in tangible assets like plant, land, machinery, and equipment, but growth can be faster and exponential through intangible assets like IP Assets.
An IP asset is identifiable if it is separable or capable of being separated and sold, transferred, divided, licensed, rented, exchanged either individually or with a related contract, irrespective of intention to do so.
An IP Asset can also meet the requirement of identifiability if it arises from contractual or other legal rights, regardless of whether those rights are transferable or separable from the entity or from other rights and obligations prevailing in the entity.
The right to own and or control an IP Asset implies the legal authority or right to reap the future economic benefits from the IP Asset.
In accordance with IFRS 38 (§13), “An entity controls an asset if the entity has the power to obtain the future economic benefits flowing from the underlying resource and to restrict the access of others to those benefits. The capacity of an entity to control the future economic benefits from an intangible asset would normally stem from legal rights that are enforceable in a court of law. In the absence of legal rights, it is more difficult to demonstrate control. However, legal enforceability of a right is not a necessary condition for control because an entity may be able to control the future economic benefits in some other way.” Thus, control can be demonstrated by exclusive rights over a specified geographical area, market sector or specific application, as part of an assignment agreement, license, or government concession.
- Future Economic Benefits
The future economic benefits from an IP Asset must flow to an entity exercising control over it. The economic benefits can be in terms of income from royalties, licensing fees, cost savings in existing production operations, increased sales due to exclusive IP rights in certain markets and access to new markets.
Thus, it is crucial for an entity to recognize its IP Assets and ascertain the probability of the expected future economic benefits which flow to the entity; and the cost of managing the IP asset whether can be measured reliably.
Importance of IP Audit
The forward looking and growth-oriented entities conduct self-regulation on a proactive basis instead of simply adopting protocols for regulatory compliances. Unlike financial audits for Annual Financial Reporting Requirements, IP Assets Audits can be conducted periodically and especially prior to corporate strategic planning meetings. Some of the key benefits of IP Audits are:
- Identifying current status of remaining life of IP Assets in the repository
- Performance statistics of different IP assets
- Infringements if any of others IP assets
- Avenues of growth and development of new IP assets
- Life extension program
- Potential for acquisition of complimentary IP assets
- Impact of acquired IP assets due to business combinations after a Merger or Acquisition
- Assets due to Government grants and potential for SEPs
IP Audit is based on the ages old Agade, “Necessity is mother of invention!” Only through audits, one can identify needs and necessities of the market and sustainability of an entity.
Inventions are happening in the world continuously which is evidenced by the increasing number of patents in the last 10 years. It will be futile to incur considerable R & D expenses in developing a process or a product which is already a subject of patent application in some part of the world. Therefore, the first wise step will be to do internal IP audit.
For assistance in conducting an IP Audit or IP related advisory services, contact firstname.lastname@example.org
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