table of contents
· introduction
1. Several issues that need to be clarified in the enterprise intellectual property pledge loan
(1) The inherent instability of the value of the patent right
(2) Uncertainty in the assessment of the value of patent rights
(3) Two principles that should be followed in the pledge of intellectual property rights
2. Risk management and control in enterprise intellectual property pledge loans
(1) Begin to control risks from the transaction structure
(2) Start with the loan review process to control risks
(3) Manage and control risks from the design of the loan cycle and the extension of loan renewal
3. Analysis of the necessity and feasibility of introducing NPE as a loan guarantor
(1) Introduction to NPE
(2) Analysis of the necessity of introducing NPE as a loan guarantor
(3) Feasibility analysis of the introduction of NPE as a loan guarantor
IV. Conclusion
INTRODUCTION
In the case of enterprise intellectual property pledge loans, a common concern and concern of the bank, as the lender, is the "realization" of intellectual property as pledged collateral. However, there is also another view that the bank, as the pledgee of the corresponding intellectual property rights, can control the key lifeline of the enterprise to a certain extent through the "key" of intellectual property rights, so there is no need to worry too much about the issue of "realization". The basic logic is that the enterprise will hand over its life to the bank, and the bank will release the funds in its hands to the enterprise, and the two sides can completely benefit and trust each other and cooperate for a win-win situation! Specifically, when the pledgee has no choice but to dispose of the corresponding intellectual property rights, even if it cannot be sold and cannot be directly realized, it can easily obtain the ownership or exclusive license of the corresponding intellectual property rights and become the actual right holder. If the enterprise is really an IP-intensive enterprise, the main product is indeed a patented product with the corresponding intellectual property right or a registered trademark in the corresponding intellectual property right. So the enterprise is actually equivalent to putting its life in the hands of the bank, and isn't this the best kind of pledge guarantee? Therefore, as long as the enterprise is not a leather bag company, as long as the enterprise is a normal production or service-oriented enterprise with profitability. As long as the bank can grasp these important and critical lifelines of the enterprise, why is it afraid that the enterprise will cheat at that time? According to this viewpoint, the key for banks to make intellectual property pledge loans lies in two points: first, they must have a good understanding of the actual operation of the enterprise; The second is to be able to obtain the intellectual property rights that are the key lifeline of the enterprise, that is, once the enterprise defaults on its loan, it must be able to rely on these things to "hold" the enterprise. Once banks achieve these two points, they can reduce the risk of lending to related enterprises to a certain extent, or even a large extent, and may also use this to screen out truly high-quality corporate customers.
In the following article, the author will analyze and sort out the relevant problems and risk management and control in the intellectual property pledge loans of enterprises from the above two perspectives, and try to put forward some solutions to them.
1. Several issues that need to be clarified in the enterprise intellectual property pledge loan
(1) The inherent instability of the value of the patent right
The value of a patent right must be realized by exercising the right, that is, directly or indirectly asserting its rights against the patent infringer. In other words, if a patent right cannot obtain due remedies when it is infringed, that is, the patentee does not assert its rights against the infringer, it just confirms the proverb that there is no right without remedy. And if the rights are gone, how can we talk about the value of the rights? If the rights are worthless, how can we talk about rights-based pledge loans?
However, once the patentee wants to claim rights against the patent infringer, the accused infringer will inevitably invalidate the patent right. A common saying in the industry is, "There is no invalid patent, if there is, try again, as long as you are willing to spend money, the vast majority of patent rights can be invalidated". Although this statement is a bit of a joke and an exaggeration, it also illustrates the inherent instability of the value of patent rights to a certain extent.
(2) Uncertainty in the assessment of the value of patent rights
Taking the famous "selfie stick patent" as an example, it has gone through 24 patent invalidation procedures and is still standing, creating hundreds of millions of yuan in sales revenue for the company every year, and earning tens of millions of yuan in direct intellectual property rights for the patentee through patent licensing and patent infringement litigation compensation, and thus won the 20th China Patent Gold Award in 2018. However, in these more than 20 invalidation procedures, if one of them fails to hold up and is successfully invalidated, then there will be no glory of the patent that was widely known later, and it is more likely to be drowned in the dust of history and no one knows, and as a small utility model patent, it is very difficult to win the 20th China Patent Gold Award.
So judging from the final result, are the subsequent more than 20 ineffective people all those people wasting their efforts? Definitely! Because the cost of each invalidation is not low, any invalidation proposed by others must be a last resort, and they have made great efforts and full preparations, but in the end they may only be so "breathless" and cannot succeed. On the other hand, if someone can make up for that breath in the midst of these repeated invalidations, then the patent may indeed be invalidated. In other words, in fact, in every invalidation procedure, as long as the invalidation petitioner can find appropriate comparative documents or prior art, the patent has a high probability of being invalidated. In the end, it was not invalidated, which has to be said to be a certain degree of luck, not just how remarkable the patent itself is. This further illustrates the uncertainty of the valuation of patent rights. Because once a patent that can be played and valued is invalidated, it will be regarded as non-existent from the beginning in law, and the value will be instantly zeroed; However, if you don't fight and accept repeated ineffective challenges, you can't demonstrate and achieve its true value.
(3) Two principles that should be followed in the pledge of intellectual property rights
First, when an enterprise pledges its relevant intellectual property rights, it must be "packaged" and pledged, rather than a single pledge. Because a single intellectual property right, especially a patent right, has its inherent instability and uncertainty, in order to avoid the excessive risk of a single intellectual property right, when an enterprise pledges its relevant intellectual property rights, financial institutions should require the enterprise to "package" and pledge the relevant intellectual property rights as a whole, rather than only separating one or several of them and pledging them.
Second, after the enterprise has "packaged" its relevant intellectual property rights as a whole, it should be pledged to one financial institution in a centralized manner, that is, the relevant intellectual property rights of an enterprise cannot be pledged to two or more financial institutions at the same time.
2. Risk management and control in enterprise intellectual property pledge loans
(1) Begin to control risks from the transaction structure
The transaction structure of a contract usually directly affects the substance and form of the contract, directly determines the parties to the contract, the validity and feasibility of the contract, and the type of contract chosen, and of course, the specific content of the contract. In practice, the rational design of the transaction structure is usually considered from the perspective of managing legal risks and the legal feasibility of the transaction.
Among the various measures to control transaction risks, guarantee or guarantee measures are undoubtedly the most direct and effective. Although the IP pledge loan itself is a pledge guarantee contract used in the loan contract, in order to prevent the risks of the pledge guarantee contract itself, if an effective guarantee contract can be further introduced, it may be more conducive to the risk management and control in the loan and the guarantee contract.
But who is suitable or willing to be this guarantor? The answer may be NPEs or NPE-like institutions. The reasons are: on the one hand, they are better at making a more reasonable valuation of the relevant intellectual property; On the other hand, if the guarantee contract stipulates that they can obtain the qualification to exercise the corresponding intellectual property rights within the guarantee period, they will not be afraid that the enterprise that pledged the relevant intellectual property rights will not repay the money to the bank. Because as long as the NPEs hold the lives of these companies in their hands, they will definitely have a way to force these companies to comply, and they will have to pay back obediently.
(2) Start with the loan review process to control risks
This is because the logic of asset disposal or realization after default of an IP pledged loan is very different from that of traditional or tangible property. Specifically, traditional or tangible property can usually be sold for some money when it is disposed of or realized, even if it is disposed of as scrap metal, it can be sold for some money. However, intellectual property rights are like the protons of other countries in order to check and balance each other during the Warring States Period, although these protons are expensive princes, but it is difficult to realize them directly, so they can only be used as a means to blackmail their countries. When intellectual property rights are used as "pledges", although it is difficult for the bank to directly realize them as the pledgee, as long as these intellectual property rights are really the lifeblood and lifeblood of the relevant enterprises, there is no fear that the bank will "not be able to hold" the relevant enterprises when necessary.
Therefore, the key issue here is that the bank can really grasp the lifeline or lifeblood of the enterprise in the loan review process, that is, to ensure that the real "prince" and important "prince" are bet, rather than fake "princes" or unimportant "princes". On the other hand, it is also necessary to determine whether the enterprise itself is valuable and developing benignly, otherwise, even if it is pressing his most important true "prince", when it is about to collapse, it will be difficult for the pledgee to use the "prince" in his hand to squeeze any oil and water from it.
(3) Manage and control risks from the design of the loan cycle and the extension of loan renewal
At present, the cycle of IP-pledged loans is usually set to a one-year loan, and this relatively short loan period is commensurate with the risks of IP-pledged loans. However, the question is whether the relevant loan can not be settled after the end of a loan cycle, whether the loan review link can still be carried out "only as at first sight" in the subsequent deferred renewal of the loan, so as to ensure that the relevant enterprise can detect and stop the continued lending in time when the relevant enterprise has already experienced a business decline or insolvency risk.
So, how to set up the loan review link in the deferred renewal? And how to ensure that the changing trend of the company's operating conditions is detected in a timely manner? It is also an important aspect of risk management and control in enterprise intellectual property pledge loans.
3. Analysis of the necessity and feasibility of introducing NPE as a loan guarantor
(1) Introduction to NPE
NPE (Non-Practicing Entities) corresponds to the Chinese translation of non-patent implementing entities or non-implementing entities, also called patent business entities, non-patent operating entities, and some notorious titles, such as "patent trolls" or "patent cockroaches". Regardless of its title, its essence is that the subject of the patent right does not implement the patented technology itself, that is, it is not engaged in the implementation or transformation of the patented technology, but only does the operation and protection of the relevant patent rights.
(2) Analysis of the necessity of introducing NPE as a loan guarantor
At present, in the case of intellectual property pledge loans, interest-free subsidies are usually given by the local government in order to reduce the financing cost of enterprises. If a guarantor is introduced, generally speaking, it is necessary to provide the necessary counter-guarantee to the guarantor, and a certain amount of guarantee fees will be incurred, so the pursuit of reducing the financing cost of the enterprise may be frustrated.
However, in the absence of a guarantor, if the relevant intellectual property rights are only pledged, the bank may only deal with them in the form of credit loans and quotas, and cannot fully realize the value of the intellectual property itself, on the one hand, because the value of the intellectual property itself is relatively weak, and on the other hand, because there is no one to effectively endorse its value. Although there may be an appraisal report issued by the appraisal agency, the appraisal agency will not be responsible for the value of its appraisal, so such a report may not be better than nothing, or it will not solve the concerns and doubts of the lender bank at all.
If the legal representative of the enterprise is the guarantor, the legal representative can be held jointly and severally liable, but it is afraid that when the enterprise is mismanaged and has debts, the legal representative has too many creditors or no property at all to enforce.
It can be seen that if an appropriate guarantor can be introduced, the risk management and control of the corresponding intellectual property pledge loan is of course the best solution. However, because the traditional guarantee company has to require both counter-guarantee and guarantee fee, it is obviously not suitable for this special scenario of intellectual property pledge loan. Therefore, at present, it is necessary to have a new way of thinking to solve this practical dilemma in intellectual property pledge loans. So is there any way to introduce a guarantor, and at the same time minimize or exempt the guarantee fee and counter-guarantee? This probably requires some ideas of "turning waste into treasure", that is, turning "waste" that is useless for one party into "treasures" that are of great use to the other. The above purpose can be achieved to a certain extent by introducing NPE as a guarantor in the IP pledge loan and appropriately dividing the rights and interests of the corresponding IP rights.
(3) Feasibility analysis of the introduction of NPE as a loan guarantor
First of all, on the issue of counter-guarantee, an enterprise can grant the guarantor an exclusive license of the corresponding intellectual property rights during the agreed loan period and guarantee period as a counter-guarantee to the guarantor while pledging the intellectual property rights. Although this kind of exclusive license granted to the guarantor for a certain period of time will damage some interests of the pledgee, it is actually difficult for the pledgee to make real use of the rights of the corresponding intellectual property rights during the above-mentioned period, so the pledgee may wish to allow the enterprise to grant the exclusive license of the corresponding intellectual property rights for that period to the guarantor as a counter-guarantee, in exchange for the guarantor's guarantee to the pledgee. For example, it can be clearly stipulated in the exclusive license contract that when the enterprise lender does not default on the loan, the enterprise has the right to use its relevant intellectual property rights normally (i.e., restrictions on the exclusive license), and once the enterprise defaults on the loan, the exclusive license will be strictly enforced, that is, the enterprise will no longer be allowed to continue to use the relevant intellectual property rights, otherwise it will bear infringement liability. In addition, until the enterprise has repaid the loan, the exclusive license granted to the guarantor for the relevant intellectual property rights will be extended indefinitely until the loan is repaid and the guarantor's guarantee liability is fully discharged.
Secondly, on the issue of guarantee fees, it can be divided into the following two situations:
One scenario is when a corporate lender defaults on its loan because it is unable to repay the loan on time. In this case, the guarantor still actually holds the exclusive license of the relevant intellectual property rights during the guarantee period after the expiration of the loan term, so it can directly initiate an intellectual property infringement lawsuit against the enterprise to force the enterprise to repay the loan, so as to exempt or compensate the guarantor from the guarantee liability. Because the guarantor can not only use the exclusive license to sue the enterprise for infringement compensation, but also issue patent sublicenses or file patent infringement compensation to other enterprises that produce the corresponding patented products, the exclusive license can be regarded as a compensation for the guarantee fees receivable from the guarantor during the extension process after the enterprise breaches the contract.
Another situation is that the borrower and the borrower extend the loan after the loan expires and reset the next loan term, or the corporate lender has repaid the loan on time. In this case, either the previous exclusive license term is extended under the new loan term, or the exclusive license previously granted to the guarantor is converted into an exclusive license for a subsequent period (e.g., five to ten years) after the corporate lender has repaid the loan on time. During the exclusive license period, the patentee of the enterprise can of course use its relevant intellectual property rights normally, and the guarantor can use the exclusive license in its hand to issue sublicenses to other competitors of the enterprise in the market or initiate infringement lawsuits to obtain corresponding patent infringement compensation, so as to compensate the guarantor for the guarantee fees due to the guarantor as a guarantor in the IP pledge loan.
Finally, and most importantly, the exclusive or exclusive license granted by the enterprise as the patentee for a certain period of time and in actual use is often a valuable resource for NPEs. Therefore, to a certain extent, it has realized the "turning waste into treasure", that is, the optimal utilization of enterprise intellectual property resources, which can not only promote the development of enterprises, but also benefit the banking business, and can also enable enterprises that really make innovations to integrate the industry and rectify the market with the help of NPE, so as to realize the healthy development of the industry as a whole and the enterprise itself.
IV. Conclusion
The matter of enterprise intellectual property pledge loan undoubtedly has great practical significance and bright future imagination for promoting enterprise growth, enhancing innovation ability, and accelerating the development of new quality productivity. However, whether it can be done well, especially whether it can be continued to do a good job, to achieve real mutual benefit and mutual trust and win-win cooperation between banks and enterprises, the key issue may lie in risk control, especially the control of the non-performing loan rate. Therefore, anyone who is interested in this work should strive to find a way to solve the risk management and control problem of this matter, once the risk control problem can be effectively solved, then this matter will be smooth, and the social and economic effects and future imagination space brought by it are also obvious to all.
Author: Zhang Yinggang
编辑：Eleven