Ruler for ingenuity – Newspaper Kommersant No. 197 (7398) of 10/24/2022

The Ministry of Economy has developed a draft of a new federal standard for valuation of intellectual property and intangible assets (FSO XI). An important innovation of the document (Kommersant has it) is a section on the specifics of conducting an assessment when pledging such assets. This is necessary for the development of lending with “smart” collateral. Now banks are extremely reluctant to issue money secured by such objects because of the difficulties with the assessment. Experts approve the project, but note that the solution of the issue will require a complex of measures and time.

The Ministry of Economy has prepared a draft order on the approval of the Federal Security Service “Evaluation of intellectual property and intangible assets (FSO XI)”. It will replace the FSO “Assessment of intangible assets and intellectual property (FSO No. 11)” 2015. This is required by the “road map” of the business climate transformation plan “Intellectual Property”. According to it, the Ministry of Economy and Rospatent should amend the standard in November 2022, improving the procedure for assessing IP objects when providing bank loans (for this, the section “Peculiarities of valuation with collateral” has been introduced into the project). As noted in the department, the document should help banks determine the value of the results of intellectual activity, but the decision to accept them as collateral remains with credit institutions.

The issue of improving the collateral qualities of intangible assets (IA) has been on the agenda for a long time, says Sofya Volkova, a lawyer at the Asterisk law firm. Now banks are focused on standard collateral – real estate, vehicles – and are extremely reluctant to issue a loan secured by IP objects, primarily because of the complexity of the assessment. The project of the Ministry of Economy proposes to evaluate the liquidity of such assets by the presence of transactions with them or similar objects (including the conclusion of license agreements) with companies for which such objects are core, according to retrospective data (the dynamics of sales volumes of products using the object of assessment) and according to ” “significantly high” probability of commercialization of such an object. Recall that earlier the Central Bank noted that intangible assets will be able to act as collateral for a loan if they are liquid, but this requires an active market that will allow the formation of a reliable assessment of such assets (see Kommersant dated August 19 for more details).

The document also specifies the objects to which the assessment standard applies: these are exclusive rights to the results of intellectual activity (RIA) and (or) means of individualization (intellectual property), in accordance with Art. 1225 of the Civil Code, and the rights to use them. Also, complex objects that include several protected results of intellectual activity fall under the standard, in accordance with Art. 1240 of the Civil Code of the Russian Federation. At the same time, the rights to individual protected results as part of a complex object can act as independent ones.

Formalization of the definition of liquidity of intangible assets and intellectual property, criteria and additional requirements for the analysis of encumbrances and their impact on the result “may contribute to the development of lending secured by such objects and property,” VEB.RF notes. Andrey Krichevsky, head of the RSPP Committee on Intellectual Property and Creative Industries, considers the update of the standard a good sign for the market. However, a more direct package of measures is needed to develop IP-backed lending, he says. One of them is the improvement of the work of the banks themselves through new approaches to the implementation of the principle of “due diligence” in relation to the “portfolio” of intellectual rights, in assessing the risks of the bank and the borrower’s ability to maintain the value of the collateral.

According to Sophia Volkova, the standard will not have a quick impact on the market. “First, a full-fledged market for such assets must be formed, mortgage banks must understand their real value – this will happen over time. It’s good that a legal framework is already emerging,” she says.

Venera Petrova