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Trade Secrets as Collateral

The paper titled Trade Secrets and Non-Traditional Categories of Intellectual Property as Collateral by Jeffrey D. Dunn & Paul F. Seiler Presented to UNCITRAL ,Second International Colloquium on Secured Transactions: Security Interests in Intellectual Property Rights speaks of utilizing the full value of Intellectual Property assets in obtaining financing. The authors state: "Consistent with the need to permit asset owners to utilize the full value of their assets in obtaining financing, the authors advocate that national secured transactions laws should encompass non-traditional intellectual property within their secured transaction legal regimes in lieu of inconsistent and uncertain mechanisms that are sometimes embedded in special statutes whose primary goals are to regulate these types of assets. The rationale behind this approach is the notion that an asset's value is enhanced by its ability to be collateralized in a loan transaction, and that the legal mechanism that permits the creation and enforcement of the security right in such property must consist of broad, easily-followed and understood rules of general application." With reference to Trade Secrets the paper states: "Trade secrets can be very valuable as intangible economic assets of a company and are theoretically available for secured financing if a country's laws recognize and protect such secrets. This type of property can be encumbered under general secured transactions laws that allow for the taking of a security interest in a company's general intangibles and the perfection of the secured creditor's claim by the filing of a descriptive public record of the collateral and the security interest in a central location. Although it is possible to take a security interest in trade secrets as a general intangible asset of a business enterprise, there are conceptual and practical problems in doing so because the nature of the property is secretive. Disclosure of the secret (either in the public filing for the security interest or to the secured creditor) could eliminate its legal protection and therefore its value as collateral. Commentators have suggested that this problem can be overcome by describing the trade secret in general terms in the public filing (for example, "Formula for [name of product]"). Some have also suggested that the trade secret be maintained in a writing held in escrow for the lender." The paper discusses various types of non-traditional intellectual property which have general, but not necessarily universal, recognition under the laws of many nations with well-developed commercial and financial systems and how such categories of property could be treated under a general secured transactions law that is a very interesting and important analysis as it reiterates the absence of universal IP regime.

Full post as published by The Trade Secrets Vault on September 25, 2008 (boomark / email).