The Lexpert Special Editions profiles selected Lexpert-ranked lawyers whose focus is in Corporate, Infrastructure, Energy and Litigation law and relevant practices. It also includes feature articles on legal aspects of Canadian business issues.
Issue link: https://digital.carswellmedia.com/i/133445
30 VALUING INTELLECTUAL PROPERTY "IT CAN BE DIFFICULT FOR SOMEONE TO COME IN TO ANALYZE WHAT YOU ARE CONCERNED ABOUT WHEN THERE'S A SHORT TIME FRAME, PARTICULARLY WHEN YOU ARE TALKING ABOUT VERY SOPHISTICATED IP ." realizing they have IP that's not adequately protected and are now starting to protect it to bolster their own bottom line." That leads to the next step as part of the process, he says, "which is looking at the IP strategically and saying 'by protecting this IP can I now undermine competitors?'" If IP is worth protecting to bolster a company's bottom line, what's it worth to a potential suitor in terms of its own competitive strategies? "If you are the seller you may be able to say to the buyer 'look at what I'm delivering to you and strategically what you can do with it,'" he says. "Conversely, depending on the nature of the target, we've had situations where we've been purposely told not to do too much IP investigation because the buyer is aware of the value of the IP and does not want to trigger in the minds of the seller that they are focusing on it," says Singer. And while Singer says although we haven't seen it yet, when an IP-based transaction is initiated, a competitor could start an infringement claim to derail the process. "You can see it in an aggressive situation; if it happens, it probably isn't going to happen first in Canada in any event." Defending your IP or using it for offensive purposes is only one component of any M&A activity. Sometimes the M&A driver may be the personnel, the human capital who created the innovation and/or the customer relationships among those who utilize the innovation. "It's the personnel – certainly the key personnel – that you want to lock up if you are doing an acquisition," says Hewat. "There's a growing trend where a buyer's senior human resources people are included as part of the front-end due diligence. The buyer understands the value of retaining the IP personnel and the need to structure going-forward arrangements that provide the key personnel with an understanding of what their futures hold and why it will be attractive to remain." That's why "when doing the deal, it's important to think about the 'integration' of the purchase business with your business to get the greatest value out of the synergies you feel are there," says Barnes, "properly recognizing that human resources are an essential element to achieving the maximum value from combining the businesses." Bev Cline is a freelance business and legal-affairs writer and editor in Toronto. LEXPERT® RANKED LAWYERS RANKED LAWYERS Reagh, Charles S. Stewart McKelvey (902) 420-3335 csr@stewartmckelvey. com Mr. Reagh's practice embraces corporate, commercial, securities, corporate finance, and asset/equipment financing and leasing matters. He incorporates and amalgamates companies, conducts searches, and provides transaction and agency opinions. ROB.indd 30 Richards, Gabrielle M.R. Robitaille, Steeve Rodger, J. Mark Romano, Simon A. Ross, Donald C. McCarthy Tétrault LLP (416) 601-7766 grichards@mccarthy.ca Stikeman Elliott LLP (514) 397-3024 srobitaille@ stikeman.com Borden Ladner Gervais LLP (416) 367-6190 mrodger@blg.com Stikeman Elliott LLP (416) 869-5596 sromano@stikeman.com Osler, Hoskin & Harcourt LLP (416) 862-4288 dross@osler.com Ms. Richards is a partner who focuses on tax implications of M&As, corporate reorganizations, corporate finance and other corporate tax matters. Frequent speaker on taxation matters. Member of the Canadian Tax Foundation Board of Governors. Mr. Robitaille is a partner and head of the Montréal office's Corporate/Commercial Group. Practice focuses on securities, public/ private M&A, corporate finance and governance. Advises investment funds, income trusts and private-equity funds. Mr. Rodger's energy markets practice focuses on the regulatory, corporate and government relations aspects of infrastructure renewal in the electricity, natural gas and water sectors. He represents governments and private interests. Mr. Romano focuses on securities, public and private M&A, corporate finance and private equity. Clients include corporations, dealers and private-equity funds. Extensive experience with alternative trading systems and REITs. Mr. Ross's practice embraces domestic and cross-border M&A and corporate finance, corporate governance, privatization and other strategic legal issues. He regularly advises major shareholders, boards of directors and senior management. 13-04-23 12:10 PM