Patent Law Practice Center

On the record with Ashley Keller

I recently had the opportunity to chat on the record with Ashley Keller, a co-founder of Gerchen Keller Capital, about monetizing patent rights and the patent market in general. Gerchen Keller provides capital and other financing solutions to companies and law firms involved in complex litigation, including patent litigation. Ashley serves as the firm’s Managing Director. Prior to co-founding Gerchen Keller, Ashley was a litigation partner at Bartlit Beck Herman Palenchar & Scott LLP, where he handled a variety of patent litigation matters, among other things. Ashley also has the distinction of being a member of a relatively small club of Supreme Court law clerks. He served as a law clerk for Judge Richard Posner at the U.S. Court of Appeals for the Seventh Circuit and Justice Anthony M. Kennedy at the Supreme Court of the United States.

What follows are excerpts from my interview with Keller, which took place on November 5, 2015. To read the complete transcript, please see The difficult environment for monetizing patent rights.

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Is IP Management Part of a Board’s Due Diligence?

This week’s PLI seminar, IP Driven M&A, highlighted the important role intellectual property plays in determining the value of a company or in strategizing a merger or acquisition. The intangibility of IP is no longer viewed as a hindrance to its monetization, thus it is now treated like any other corporate asset. If purchasers are now recognizing IP as a part of their strategic due diligence, it makes sense that a major AOL shareholder is bringing IP mismanagement issues to the attention of their company’s board of directors.

According to news reports, AOL investor, Starboard Value LP, filed a request to replace five members of  the company’s board of directors based on the belief that AOL’s patent portfolio has “gone unrecognized and underutilized”, thus causing Starboard to call for replacements on the board of directors because they feel “increasingly uncomfortable with the direction of the Company and the leadership of the Board.” Leaves one wondering if IP mismanagement is a breach of fiduciary duty on the directors’ part, such that their removal from the Board is the best remedy for the benefit of the shareholders. (more…)