Study On The Legal Issues Of The Patent Asset Securitization

After 70s of the 20th century , Asset Securitization is the most important and fastest-growing financial innovation in the international capital markets. In the past four decades , this financing method expanded into different areas, and the object asset to be securitized have been beyond the former scope of housing mortgage, go to other loans and account receivables, financial assets, even go to the assets which produce anticipated cash flow. After the subprime crisis broke out, some people questioned the securitization, but in view of Asset Securitization is not the nature reason for the crisis, denied the future of Asset Securitization is obviously without foundation. Under the background of the knowledge economy, it's nature that patent, copyright, trademark and other intellectual property assets to be securitized. This trend is in accordance with the change of the corporate financing which emphasis on the overall assessment in the past, but focus on individual asset values now.With the coming of the knowledge economy , as the central factor of the growth, intellectual property rights(IPR) is the key to get advantage in competition. From the invention and the rights'granted to the application and the protection, the whole operation of the patent is a legalized process to achieve the monopoly. In market competition, the patent is undoubtedly the most powerful weapon, so the patent assets needed to be pay more attention. Patents not only a tool to exclude the competition in the market, but also a financial asset because of its potential value. From the current view, though compare to the whole Asset Securitization , the Patent Asset Securitization's market is small now, but it shows tremendous potential and momentum in future. In view of the Asset Securitization's nature is a structured finance, it's not only an economic phenomenon, it is also a legal process. Asset Securitization needs relevant laws which knitted into a network to build and keep security, so the legal issues of the Patent Asset Securitization must be given full attention, both in destroyed one by one and sort out the links between the issues.In order to promote the Patent Asset Securitization release their unlimited potential in the future economic, analysis legal issues and find out the solution have a high research value and practical significance, either in theory or in practical. Concerned about the contentious issues which is dangerous but energetic, I decide to choose this challenging proposition as the research direction for my dissertation.The text can be divided into five chapters.Introduction. The thesis first states the background, explans the reason to study on the legal issues of the Patent Asset Securitization, and described the purpose and significance of this research in the circumstance that nearly 90% of the company's assets are intangible assets.For a comprehensive and prfound understanding of the core topic, the thesis summarizes the researches on Asset Securitization,IPR Asset Securitization and the Patent Asset Securitization, in accordance with the classification of domestic and international to be reviewed; and express personal opinions about the value and contribution of the researches. At the same time, the introduction shows the research path of the thesis, according to the characteristics of the research which closely related to the economy, the politics,the philosophy and any other fields, the author determine to make a detailed study by historical analysis, value analysis, comparative analysis, case analysis and systematic analysis.The chapter I, the research on the basic theories of the Patent Asset Securitization. This chapter analyses the basic theory of the Patent Asset Securitization. First, concerned about the system of securitization, the Patent Asset Securitization is a breakthrough of Asset Securitization, mainly reflected in a breakthrough of the object asset, a breakthrough of Securitization and a breakthrough in financing of the patent.Second,the Asset Securitization in essence is composed of a series legal behaviors which mostly consist of contract,and the object asset is essentially a obligation in law.Therefore, to know the theory of the Patent Asset Securitization in law should be analysis how the creditors share the risks,including the ownership is the basis theory of the sharing of the creditor's right;the risk-sharing is a breakthrough of the relativity of credit;the expansion of the creditor's right and the difficulties encountered in the conveyance ,all the problems are the cornerstone of the securitization. Meanwhile, the building of the securitization system needs the support both from guarantees system and securities systems, and at the same time ,the Asset Securitization has also led the two basic systems to change. So analysis of the creation of the Securitization can find out the relationship between the Patent Asset Securitization and two basic systems.The chapter II, the Patent Asset Securitization of assets, restructuring and risk analysis of segregation. This chapter represents around the two laws of The Three Laws of Patent Asset Securitization, which including"The reorganization of Assets"and"The Risk Isolation". According to the specialized structure of the securitization of assets, the foundation of the whole securitization operation is assets should be sold to those organization with special purpose, to achieve the real risk of isolation, we should clarify the target of Transfer of Assets, get rid of the legal obstacles of those organization with special purpose. This thesis aims at the particularity of the Patent Asset Securitization , in order to analyze of the obstacles of organization with particular purpose meets in the patent license agreement. Meanwhile, this thesis clarify the judgment standard of"true sale"in a dynamic perspective, specially including"true sale"during the transfer of assets,"true sale"after the transfer of assets and effective argument to"true sale". This kind of research pattern is determined by"true sale"has a feature of persistence. The Patent Asset Securitization restructuring the patent pool, this thesis observes the main conflict during the restructuring, choose to study about anti-monopoly issues. After patent portfolios shaped the monopoly, the essential of anti-monopoly is scramble for profit, and the change of legislation become the most intense battlefield to determine the pursuit of the legalization of interests. Rethink about the legislation of anti-monopoly is good for us to explicit the right direction of patent asset securitization in the future.The chapter III, perfection of the Patent Asset Securitization support system. the Patent Asset Securitization support system including three parts: the credit rating, credit risk prevention and the patent asset securitization credit system which organized by credit enhancement; the protection system which aims at the investors in the patent asset securitization; and regulatory system to intermediary. The theoretical basis of this system is"credit enhancement"principle. Although the concept of credit is everywhere, it has a special meaning in the patent asset securitization , credit complete the quantization of asset securitization, credit rating is better, the risk is lower, vice versa. Credit rating can calculate risk, because of the assets has non-unitary, the difficulty and complexity is increasing. The process of credit enhancement also can't be contrary to real credit under the profit motivated. Towards the protection of investors in the patent asset securitization, we should pay attention to two points,: firstly, information disclosure, secondly, private placement and issued. The influence of intermediary in the asset securitization can not be ignored, we should intensify the guidance and the supervision. In the securitization process,"credit"should be through to the end, and every participant should follow and respect it, in this way, this system can be a strong support for asset securitization.Chapter IV, the observation of the legal system about the Patent Asset Securitization. Asset Securitization was first originated in the U.S mortgage securitization, it has gradually spread to other areas, and lead to the financial revolution, it has changed the financial outlook of the U.S and the whole world. Asset Securitization expands into the field of intellectual property, asset securitization is the core of it. And the biomedical patents occupies the absolute advantages in the patent asset securitization. This thesis reviews the typical cases of biomedical patent asset securitization and analyze the reasons for their access to the dominant position, thus pointed out the tendency of future legislation in this field. In the world development of asset securitization, the U.S is the drafter, also the most developed. By other's faults, wise men correct their own. This thesis choose to study the representation of the common law system—the status quo of the U.S asset securitization legislation, explains it's relatively perfect legislation system, focuses on the conflict in this system, and gives some advice to solve the problems. Meanwhile, this thesis also study about the representatives from civil law countries—legislation of Japan patent asset securitization. Although Japan put assets securitization into practice since 2002, the Japanese government supported the development of it strongly, built their own legislation system based on other countries experiences, Japan's experience affords other countries lessons that merit attention.Chapter V, the localization exploration of the Patent Asset Securitization . The world's financial situation changes so fast,the subprime crisis triggered a global panic in finance.So there are different ideas about the prospect of the Asset Securitization. Therefore the Patent Asset Securitization also has strong vitality. The previous part identified and analysed the problems, after the comparison and the implication, the thesis is returned to our country, seeking the way to achieve the Asset Securitization's localization. First, analysis the necessary of developing the Patent Asset Securitization in China, and then analysis the feasibility from the support of the policy, the status of the legislation ,the practice and other supporting factors. Finally,the thesis gave the legislative advice to the Patent Asset Securitization.Conclusions. October 22, 2009, Tianjin Weijie Technology Co., Ltd. got 2 000 million loan from Dalian Bank Tianjin Branch.The access to get the loan is not mortgage by the traditional tangible assets such as housing mortgage,but pledge by four patents. The traditional security model is broken, the value of the patent in market is recognized. This marks the patent pledge going to be a new financing in our country , also means that after the first and failure implementation of the Patent Asset Securitization in China, a new round of securitization attempt would soon start. At such a historical moment, a perfect legislative system will directly affect the success or failure of the financial reform. To enact a single law for Asset Securitization is the best choice in China, in this mode,there shuould be any special rules for the particular assets including the patent and other intellectual property rights. Only in this detailed, specific, and professional legislation can avoid the risk in advance, and the Patent Asset Securitization,which a new financial instruments ,can play a greater role in sustaining the economic development in China.