How The IP Dealmakers Are Dealing (2021 Edition)

intellectual-property-law-300×169 Fresh off the heels of a successful litigation finance-focused LF Dealmakers (this year’s edition discussed here), Wendy Chou and the Dealmakers team dove right into the eighth annual installment of the IP Dealmakers Forum. As with prior installments of IP Dealmakers, this year’s event brought together law firms, IP-focused vendors, litigation financiers, and others to discuss the state-of-play in the IP dealmaking world as we enter year three of the pandemic. With participants attending both in-person as well as virtually — with the latter being how I myself attended in my capacity as your trusty columnist — the sold-out event once again leaned heavily on the patent side of the IP ledger in terms of content, if only because patent deals and litigation activity continue to dominate the conversation with respect to high-value IP endeavors. To that end, a broad cross-section of panelists was on offer, sharing their thoughts on everything from strategic patent prosecution for startups to the most cutting-edge thinking on venue for big-ticket patent cases.

Because I attended virtually, I really had the opportunity to focus on the content of the panels that I watched, undistracted by the (worthwhile in the main) networking that takes place when one attends an industry conference in person. In particular, I tried to play close attention to the broader themes being discussed, with an eye toward capturing what is really driving IP dealmaking in these challenging times. And make no mistake, despite the pandemic’s disruptive effects there is plenty of dealmaking going on in the IP world, with the promise of a lot more to come in 2022. I look forward to discussing at least some of that activity as it happens on these pages. For purposes of this column, however, I’d like to build off three words that I think espouse a lot of what underlay the discussion at IP Dealmakers: collegiality, alignment, and transition.

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First, collegiality. Anyone who watched even one of the panels at IP Dealmakers would have been struck by at least two things. One, how well they were constructed in terms of presenting diverse viewpoints, which is a credit to the Dealmakers team. Second, even though certain panels contained panelists representing organizations with sometimes diametrically opposed missions in the IP world — the esprit de corps amongst the IP community that I referenced in last year’s IP Dealmakers recap remains vibrant. Indeed, I am starting to believe the pandemic has helped return the broader IP community to its collegial roots, informed by a recognition that even those with different viewpoints can respectfully disagree as to whether IP rights are being over- or under-respected both domestically and internationally. At bottom, collegiality is good for business when it comes to IP dealmaking, especially in an age where shifting business needs can cause a company that is staunchly anti-NPE, for example, to have to consider monetizing its own patent portfolio — including through divestment to an NPE or two as part of the process! In short, collegiality breeds dealmaking, and the need to make deals helps everyone recognize the benefits of collegiality. Even in the emotion-driven world of IP.

Second, alignment. As IP deals increase in complexity, informed in part by the presence of litigation funding or IP-backed lending in some instances, the need for alignment between stakeholders on a particular side of an IP deal can present a significant challenge. As such, the need to look for mutually beneficial partnerships — ideally with a longer-term perspective coupled with a sober understanding of the risks inherent in IP activity — is at a premium. Likewise, current and aspiring IP dealmakers must continue to question whether the deals they are involved in are structured in a way that properly aligns interests — and they must ask that question on an ongoing basis as the objectives of the deal unfold over time. The fast-paced nature of developments in the IP world, particularly when it comes to the vagaries of litigation or changing licensing environments, really demands that level of attention to maintaining alignment in deals whose success or failure can be difficult to predict with certainty at the outset. And the discussion at IP Dealmakers did not fail to stress the importance of this point, with numerous panelists reinforcing the benefits of a proactive approach to dealmaking. Coupling such a proactive approach with an understanding that an agreements’ signing is just the start of the long march toward a successful result for IP owners and their counterparties is key to winning deal management.

Finally, transition. You could sense at IP Dealmakers that a generational shift is already underway in the IP world, with younger professionals taking leading roles in a wide swath of impactful IP organizations. That is not to say that experienced IP professionals of a certain age are no longer relevant. Of course they are — and many will continue to remain relevant for years to come. At the same time, there is a new generation of dealmaking talent that is just starting to hit its stride, with the challenges of the pandemic turbocharging their ability to adapt and thrive in the global IP ecosystem at the heart of today’s biggest deals. At bottom, this year’s IP Dealmakers reinforced the idea that success in the IP market is not limited to those of a certain age or demographic. And that opportunities in the IP dealmaking space will continue to present themselves to those willing to deal.

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Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

How The IP Dealmakers Are Dealing (2021 Edition)

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