Auctioning IP - Use As A Licensing Forum?

More than a year down the track, everyone concerned with IP must have heard of Ocean Tomo's IP Auctions.

My good friend, Jeremy Philips of IPKat fame, who is (amongst many other things) editor of Oxford's Journal of IP Law and Practice (JIPLP), recently wrote a punchy and thoughtful piece in JIPLP on IP Auctions entitled 'A bid for recognition'.

Jeremy makes some interesting points, such as (using my words):

the most appealing IP assets will not need an auction;

IP auctions can not be compared to fine art auctions (fine art is unique, appreciates in value, does not expire); and

the most valuable IP assets (trade marks associated with brands) are usually sold along with the business supporting them - and so would more likely be the subject of a take-over bid than an auction bid.

Jeremy suggests that one result of all of this may be that IP auctions end up as low-end commoditised affairs done online (again, my words). This has been tried and failed in the past (pl-x.com), though admittedly in the hands of different management.

Picking up the above points in turn:

I think Jeremy is spot on about the types of assets that will end up at auction - in general.

However, I can envisage situations in which one might wish to force an auction between bidders for a particular IP right, which is indeed of high value. The key factors for this scenario would obviously have to be (a) a strong validity position, and (b) a guranteed minimum number of bidders. Why hold the auction in public, though? Again, as part of an overall IP strategy, this may be very valuable - for example in the context of future rights to be licensed, sold, enforced, or to generate a higher valuation for an entity, etc.

Jeremy's comparison with fine art is really interesting.

Jeremy says that in contrast to IP, fine art is unique. I mostly agree. Although a valid IP right is theoretically 'unique' it almost never covers the only way to acheive a particular result (whether it be a patent, trade mark, copyright, Design, or whatever) - technology will always find a way around an IP monopoly.

As Jeremy says, apart from trade marks, most IP rights do have a limited life. (Having said...