Intellectual property mortgage loans of heat "cold" thinking based on "Fair trade through" empirical research samples

Paper Keywords: intellectual property as security; value assessment; government action; the market mechanism
Abstract: The physical properties are different, many features of intellectual property whose value determines the high degree of uncertainty, which makes IPR pledge loans can not set limits on high-risk conditions and to eliminate the valuation. The recent rise of intellectual property secured loans, commercial banks will be hot in fact shift the risk assessment agencies, security companies and even by the Government. This Yaome involuntary transfer of risk, or irrational, unable to maintain healthy long-term operation. On the contrary, because of its depArture from principle of free choice in the market is not conducive to commercial banks and SMEs develop a real competitive strength.

Type of intellectual property as a property can be used as collateral security for financing for enterprises, which in theory and legislation are not a problem. But because of the value of the instability of non-controllable risk and high transaction costs, making the practice financial institutions in secured loans are not keen on the intellectual property rights. However, with central and local governments in recent years to increase credit support for the introduction of policies for SMEs, Beijing, Shanghai, Tianjin, Sichuan, Hubei and other places of commercial banks have launched the Knowledge Property secured loans business, and ready to billions of funds across the country. to the implementation of the Beijing branch of Bank of Communications, IP pledge loan products - "Show Business Link" for example, from January 2006 IO to September 2009, less than three years up to 61 credit enterprises, a total credit of 85 pen, a total of 984 million yuan loans In 2009, the "exhibition industry links, won the annual award of creative industries in China, the Chinese creative financial innovation service awards and was invited to introduce a number of provinces experience, has become a model to emulate. IP pledge loan all at once from the "cold bread" to "Hong perverse paradox," The reason for that? whether we can draw lessons and discuss the place? This Article is based on the "Show Business Link "The creation of model analysis and evaluation, in order to promote thinking on this issue.

First, the characteristics of its own intellectual property
Mainly due to the risk of intellectual property collateral value of intellectual property highly uncertain until the debtor is unable to repay when due, the pledgee can not be easily and efficiently dispose of the collateral in order to achieve their claims. To this end, the "exhibition industry links" in addition to the pledge there are limits to the type outside (can be the invention patents, utility models, trademarks or copyrights, but does not involve design, new plant varieties, integrated circuits, etc.), also called the ownership clear, there is no dispute or defect, and as a loan and the actual use of all enterprise; pledge period of not less than 8 years of patent, utility model patent is valid not less than 4 years, and must be the core technology and has been at the substantive stage of implementation; trademark has been used at least 2 years, and profitable. Meanwhile, the different types of collateral, the pledging rate cap is also different: 40% of invention patents, utility model patents and 30%, ordinary trade mark is 30%, 40% of well-known trademarks. It should be said that these limits on played a role in risk prevention, but does not fundamentally solve the problem. The reason is:
First, by the limited validity of the pledge is not necessarily reasonable. In China, the patent protection period of 20 years, utility model patent protection for 10 years. But due to technical update soon, the actual average patent life of only 7 - 8 years, while the shorter the life of a utility model, only 3-4 years. can be seen, in the "exhibition industry links" within the prescribed period, the patent's value may have already cut, or even worthless. Similarly, more than two years have been in use only to explain the temporary use will not be revoked to stop and can not guarantee its stable value. In fact, the value of trademarks is always changing, it is with the business are directly related to the operating conditions, and their use of time or whether the "well-known" not necessarily directly proportional. used to be the king of China Central Television ads labeled "Qin pool" wine, its trademark has been valued as high as billions of dollars, but suspected of fraud, was finally crushed an eight million of the arrears. And practice, many companies acquired by improper means nominal "well-known trademark", will raise rather than reduce the risk of loans.

Second, too much emphasis on the solvency of patents is not science. Not every technological invention can bring benefits to the enterprise, in fact, the vast majority of innovation activities in the world have failed, and only a small percentage of creative eventually be developed into products and commercialization. Also, a large number of patents only for defensive or confused competitors R & D, and itself can not directly create value. and related technologies in the field of patents have a strong dependence between, banks to accept as collateral for a patent, it must consider the associated patent, or its implementation may be poor and can not be realized in the disposition to find a buyer.

Third, the value of intellectual property are often difficult to predict the causal factors, such as the prospect of the intellectual property market, competition in similar products, the economic environment and cultural background. Polaroid company has owned most of the time imaging patents, the production of instant cameras to just introduced, very popular. but digital camera soon made its exit the market, Polaroid company failed to catch up with the trend because of the tragic bankruptcy. Also, enjoy a copyright films or games software, and its profitability depends largely on whether the consumer's taste, but taste is always changing, the demand uncertainty leads to uncertainty of its value.

Fourth, the pledge itself does not guarantee high-value realization of the disposal of high mobility. A pArticular application of intellectual property often requires a specific production equipment, technology skills, operational processes, sales channels and support Huanjie subsidiary conditions match , which makes the intellectual property rights are not like machines, plant, which are physical things that is universal, can not independently bring in revenue. On the contrary, once the intellectual property rights from a specific environment, easily and quickly reduce its value, difficult to sell. This requires phase with the other assets cash flow can be achieved with the characteristics of the flow of the high cost of intellectual property.


It is based on the above characteristics Zhishichanquan their own financial institutions in the Kaizhanzhiya business, in order to reduce risk will inevitably require companies to provide more detailed Fanmi legal status of intellectual property and ��ֵ assessment report, the implementation of the rights of more complex and higher assurance mechanisms lending rates, which in turn raise the cost of financing the enterprise. According to the current IPR pledge financing pArt of the pilot case statistics, financing costs accounted for 15% of the loan amount issued, companies tend to outweigh the benefits. and "Show Business Link" on the pledge limited by the general conditions and not sufficient to achieve control risk and reduce costs.

Second, the balanced view on valuation
Perhaps it is taking into account the volatility of intellectual property Jiazhi great, "Zhan Ye Tong" on the credit enterprise by the stringent requirements set. If registration must be in Beijing to be more than a 2-year results and Yinglijilu Jingying, property relationships are clear, corporate Fading representative has a good credit history, financial management system of rules, and must be the actual implementation of the Enterprise and other collateral. but it is clear that the debtor's own operating conditions, the requirements of good faith does not have guaranteed the performance of significance, has not reduced the risk of loans or metastasis. "Exhibition industry links" instead of asset appraisal firms, Law firms and the quality of human tripArtite joint security model, that is made by the appraisal firm's assessment of its value to be secured, given his Law firm be secured legal advice. If the collateral value at the time in the quality and disposal of realizable value when there are obvious gaps, the rating agencies jointly and severally liable.

Transfer the risk assessment body is nice, but it may backfire. The assessment of institutional responsibilities to strengthen the practice of a theory based on the default, that is, the value of intellectual property through rigorous scientific methods or means of complete well be identified and estimated . But that fact can not be done. Chicago School Distinguished Professor Zhang Wuchang price theorists have spent years time to study the pricing mechanism of the United States patent, and then, he admitted in an article in its unpredictable and therefore I give up. The reason is that intellectual property as a commodity, its value reflected in the exchange, not a product of the mind to imagine. The market is concrete, due to environmental conditions are different, have different demand and supply. Accordingly, the value is a space-time conditions, the product of a particular market, there is no independent existence from the specific market value. The value of intellectual property is dynamic, with the lapse of time, increase or decrease based on future earnings and continuous change. The result is expressed views about the value of a given moment only a specific date or relevant. In short, the value of intellectual property rights depends on the views of its potential buyers.

Should be noted that the majority of the international intellectual property Law works and government official who dealt with intellectual property regulations in the assessment, are only the principles involved in assessment, assessment features, evaluate the condition and so on, but never involving "evaluation formula". "Evaluation" itself shows that it is not a true value (exchange value), the company claims to certain domestic assets assessment summed up by years of practice, a mathematical model to analyze software products, intellectual property and the ability to do quantitative analysis of profitability, which is in itself to doubt. can only follow the market because the value of intellectual property rights, even if the rating agencies have been fully fulfilled the obligations of good management and can not guarantee the accuracy of its findings. Seen in this light, so that rating agencies assume responsibility beyond the scope of their capacity, clearly incompatible with the principle of equity Law, the parties may be based entirely <"Contract Law"> the provisions of section 54, claim to change or withdraw this clause.

Third, the government and its limits as
In fact, the "exhibition industry links" is a transfer of risk to the security company - Beijing-owned company limited by guarantee and letter, by the transferee when necessary transitional non-performing loans. And that the security company has a strong government background, coupled with relevant government departments to obtain loans for the enterprises in accordance with the proportion of 50% discount, this way, the risk of intellectual property rights eventually secured loans from the government "pay." Indeed, not only "exhibition industry through" products that, Shanghai, Wuhan and Chengdu behind such operations around the government has a strong financial support. The Government will not only provide full security guarantees or special account, and even self-selected number of companies recommended to the bank. This practice is worth reflection: first, if Bank does not assume credit risk to credit and no collateral on the company's liquidity careful verification, which enhance the commercial banks with the national anti-risk ability and competitive strength of the purposes that are inconsistent. Once the government no longer provides high security, hard to believe that banks will have an incentive will carry on the business. Second, corporate guarantees by the government, enterprises will lack innovation power. In recent years, the local government promised to area businesses applied for a patent for the "Trademark" various policy support and incentives, resulting in a large number of "junk patent", "idle trade mark" appears, takes a lot of social resources and public welfare, and entrepreneurial creativity made no improvement. evidence that, once the transformation stage of intellectual property in a greater reliance on government policy loans, then the future commercialization of intellectual property will be lower. Again, compared to market competitors, the government does not have information superiority, screening and recommendation by the government to credit companies, only add to the abuse of power and finally let a few people receive inappropriate benefits. Links http://www.hi138.com Research Papers Download, of course, the legislature and administration in the promotion of intellectual property as security for loans is by no means no, I believe that Government's role in the following areas:
First, revise and improve relevant laws and regulations, including:

(A) allows the use of intellectual property to maximize the quality of human material. The current <<Guarantee Law "> Article 80 provides that intellectual property pledged, the pledgor may not transfer or permit others to use, but by the pledger and the Pledge upon agreement of sale or license others to use. This provision, although intended to protect the pledgee, but the result is just the opposite. the quality and effectiveness of the right to decide when to recover the collateral is transferred, the quality of power is still present in the assignee acquired rights, the pledgee does not suffer this. and as easy to change the value of intellectual property rights, as fully within the validity period of its effectiveness, should be given free use of the pledgor and the right to dispose of the collateral. Of course, the quality of people in the exercise of that right should be granted promptly inform the pledgee and the transfer fees, license fees liquidate the secured creditor or pledgee agreement with the third to be deposited.

(B) clearly provides an exclusive license right to use intellectual property can be pledged. In accordance with current <<Guarantee Law "> the provisions of Article 75, the quality of intellectual property is limited to the right, exclusive license does not include the right to use intellectual property. However, once the exclusive license of intellectual property rights to others to use, and by the Public Registry, it has a quasi-property rights with the interests of nature, according to the best use of the principle can be used as a quality property.

(C) change the pledge to fight the Marxist doctrine of effectiveness of registration. The current <<Guarantee Law "> Article 79 provides that intellectual property as security contract from the date of registration. Here, legislators confused behavior and property behavior contract. Assuming After signing the contract of pledge, not force, the rationale for registration, the quality of people suggested that the contract is invalid, in accordance with current laws will not be liable for breach of contract, moral hazard that is clearly contrary to the safety of transactions. in accordance with common practice in the world of intellectual property as security should be mining, "Registration of Confrontation", on the one hand to promote trade, facilitate the creditor; the other hand, can fully protect the autonomy of private law.

Second, to promote open information, reduce transaction costs. The information is not entirely one of the main causes of market failure. As China has yet to establish a unified information database of sound and dynamic intellectual property registration simple and convenient, the query process, market players is difficult to obtain true information related to intellectual property transactions. In China, the different types of intellectual property rights, registration of pledge belong to different registration authorities, the registration authority registration procedures set by the content inconsistent, registration deadlines and costs vary. This confusion of intellectual property registration system has raised the cost of security for loans, reducing the efficiency of realization of creditors to exit.

Third, efforts to increase the punishment to enhance the liquidity of intellectual property. State-funded in Xi'an, Shanghai, Beijing and other places to create multiple property rights trading center, but very little trading volume of intellectual property is an indisputable fact. This is mainly due to the purchase, use , the implementation of low cost product piracy, the formation of a "bad money drives out good money" effect, the public does not demand a legal product, resulting in sluggish legitimate transactions. At the same time, enterprises and individuals making false information almost unfettered, through the creation of false information gains from the chastisement far greater than its cost, resulting in "counterfeiting and forgery," inspired. At this point, the government should fulfill its responsibilities to crack down on infringement and piracy, to eliminate false information, the only way to truly let the intellectual property transactions active.

IV Conclusion
Determine the characteristics of intellectual property is not suitable as a pledge most of the subject of intellectual property, if any, can only be the case, can not simply copy, in full swing. Practice has proved that pledge in the financing of intellectual property itself, the world are rarely carried out within. to the United States for financing high-tech SMEs in the most successful Silicon Valley Bank (Silicon Valley Bank), for example, intellectual property pledged its entire investment strategy is only a tool to reduce investment risk, the real intellectual property secured loans business conduct minimal., due to the high risk of collateral loans can not be eliminated, the developed countries, aimed at financial institutions are authorized by others to produce the expected intellectual property license fees for the pledge, this form can be classified as accounts receivable pledge financing, because the intellectual property license fees are already the reality of the deal proceeds, with a more stable value of the security.

In 2008, the Chinese government foresight, intellectual property system to the national strategic level. But China's intellectual property system from scratch, less than 30 years, the need to doubly care. To ensure its correct implementation, it should recognize its Essence: The intellectual property system in the final analysis the main market operators formed spontaneously in the continued game of competition rules. Similarly, only the operators based on their needs, intellectual property as security tools, it may be reasonable to establish the health financing system. that is, that as long as profitable, the market will form and choose their own ways and means to achieve transactions. as a regulator of the government should guarantee fair and orderly markets and the real time information, not more kitchen Daipao, Yamiaozhuzhang, otherwise it will harvest negative results, to the opposite of the system. Links to Research Papers Download http://www.hi138.com