Set the Hook Before Setting the Price

July 21, 2010

By: Paul A. Jones

High impact entrepreneurs looking for venture capital or angel financing often wonder whether their business plan and pitch should include a valuation for the deal; i.e. whether they should tell prospective investors right up front how much of the company investors will get for how much capital. I suppose that as we generally live in a world where most ordinary goods and services are clearly marked with prices this instinct is understandable. It’s also wrong. Entrepreneurs should push back the valuation discussion as long as possible. Why? Because valuation is best discussed after a potential investor has decided that she likes the deal.  Definitely include the ask in the plan and presentation – the amount of capital sought – but don’t include the price.

If the principle is simple, and I hope pretty obvious, the implementation can at times be problematic, particularly for less experienced entrepreneurs and investors. As a venture investor myself, I recall times where I wanted to get a feel for valuation before investing any time investigating a deal – usually because the entrepreneur was new to the venture capital game. Many such entrepreneurs have highly inflated ideas of how much their technology is worth – ideas so far beyond what a credible investor would pay as to make any significant investment in learning about a new deal a waste of time.

So, as a practical matter, what should an entrepreneur say when a potential investor, early on in the discussion, asks what valuation the entrepreneur is seeking? The answer: punt. Try to find a way to show the investor that you are realistic about valuation without getting specific about the number. If you have done your homework, you should have some idea about what valuations your kind of deal is getting in the current market. The vast majority of the time, at least for early stage deals outside the major venture centers, that number is going to be somewhere in the seven figures range. So go ahead and say something like “we are familiar with market trends and see our deal somewhere in the seven figures area on a pre-money basis.” This should satisfy most experienced investors as an indication that you are not a starry-eyed newbie with unrealistic grandiose delusions on valuation.

If the “we know the market and we know we will be getting a pre-money somewhere in the seven figures range” doesn’t do the trick, here are two possible follow ups. First, add something like “well, the exact valuation will of course depend on how the deal is structured and perhaps even more important what the investor brings to the table in terms of value add.” This is a good approach as it is true (you probably would give someone like Kleiner Perkins a better deal than, say, Hole-in-the-Wall Ventures) and reminds the investor that they should be thinking about selling themselves, too. Second, if a prospective investor just won’t be put off, and you really do want to get a discussion going, you might offer something like “well, we figure that in the current market, and depending on the capital and value add provided by the investor group, we will end up somewhere north of $X million pre and probably south of $Y million pre.” The critical point is to provide only enough information to establish that your expectations are reasonable.

A final note: the ideas in this piece are aimed at entrepreneurs targeting venture capitalists and sophisticated angels. A broader offering, and any offering based on a private placement memorandum (“PPM”), should (must in the case of a PPM) include at least an implied valuation. But always keep in mind one simple principle: the valuation discussion is always an easier one for the entrepreneur to “win” if it is postponed until after the prospective investor has fallen in love (or at least “like”) with the entrepreneur and deal.


VIDEO: Intellectual Property for Entrepreneurs – An Investors Perspective

July 20, 2010

On June 8, 2010, Jonathan Fritz, a partner with Michael Best and a member of the firm’s Intellectual Property, Life Science and Venture Best™ practice groups, moderated a session at the Wisconsin Entrepreneurs’ Conference titled “Intellectual Property for Entrepreneurs – An Investors Perspective.” Click here to watch the video presentation.


VIDEO: Coming to Terms with your Term Sheet

July 19, 2010

Gregory Lynch, Co-Founder of Michael Best’s Venture Best emerging technology practice and Managing Partner the firm’s Madison office, moderated a Pathways to Innovation Session titled “Coming to Terms with your Term Sheet” at the 2010 Wisconsin Entrepreneurs’ Conference.  This session features a role play regarding a real life term sheet with an early stage company. Paul Jones, who brings a wealth of entrepreneurial and angel/venture capital investing experience to the Venture Best team was a participating Michael Best panelist. Click here to watch the video presentation.


Understanding Risk in the Context of the High Impact Startup: The Playing Field.

July 13, 2010

By: Paul A. Jones

By definition, high impact entrepreneurs tackle opportunities with high risk/reward profiles. Most entrepreneurs – being optimists by nature – are more excited about the potential for outsized rewards than the challenges of dealing with outsized risks. Most investors, on the other hand, focus more attention on risks of the new venture. In fact, investors commonly look at risk reduction, rather than reward capture, as the key valuation driver for the venture, particularly in the development stage. Today, I want to focus on how, in my diverse experience as a venture backed entrepreneur, angel and institutional early stage venture investor, and counselor to dozens of high impact entrepreneurs and investors, I think development stage venture investors think about risk at the 30,000 foot level.

Market Risk. Market risk has multiple facets, the more subtle of which are often overlooked. The “big question” of course is whether there is a suitably attractive (size and/or growth potential) market for a new product or service. The first, pretty straightforward if not always easy to answer but critical “next question” is the nature of the competitive – current and potential future – environment. One of the biggest turn-offs for investors is the “we don’t have any competition” assertion that so many entrepreneurs (particularly rookies) include in their business plans and presentations. There is always competition: it may not be “good competition” and/or it may not be available today, but it is out there. It’s trite but largely true that any entrepreneur with a really good idea for a new product or service can be certain that they have company in terms of other bright folks thinking about the same market opportunity.

The second subtle and even more often overlooked market risk is whether there is a realistic and attractive business model for the new product or service. Can the market be accessed in a way that both delivers on the value proposition from the buyer’s perspective and is profitable for the producer? The analysis here includes relatively simple enquiries – what, for example, the regulatory requirements are that might impede the business model – to rather more complex – whether, for example, a competitor with a sub-standard competitive product or service might have broader relationships with the target customer base that would make unseating it for the particular product or service impractical.”

The bottom line on market risk is simple: do the basic “is there an attractive market” analysis but make sure you go beyond that and be sure to understand the competition (current and emerging) and to establish that there is an attractive and market-feasible business model.

Technology Risk. As most, but by no means all, high impact entrepreneurs are either technology-driven (say a biopharma startup developing a novel new class of antibiotic compounds) or technology-centric (say a company developing a new SaaS business model for a business process that has historically been done on a customer’s internal computer systems) many entrepreneurs approach risk primarily as a question of whether the technology “works.” And technology risk in the basic will it work sense is an important (if often over-emphasized) component of the risk analysis of these ventures. Unfortunately, while technology risk is often, relative to other risk components, easier to get a feel for, it is just as often misunderstood by entrepreneurs, particularly those coming from technical, as opposed to business, backgrounds.

“Does it work?” may seem like a simple question, but it is in fact more subtle than many less experienced entrepreneurs appreciate, and it is the subtleties that drive the way investors tend to think about technology risk. That is because the question is really not “does it work?” but rather consists of two related and more specific questions: (i) “does it work in a commercially relevant way?” and (ii) “are there more commercially relevant alternative technologies out there?” A new antibiotic compound may work, in all the right clinical models, extremely well, but still not be commercially relevant because it simply costs too much to produce, on the one hand, or works for a range of infections that are already sufficiently controlled by other antibiotics with well-established market positions.

In broad terms, the key to understanding technology risk begins with the “does it work” analysis (which itself may involve substantial capital and time investments), but is not complete with out the two-part commercial relevance analysis. Tip for entrepreneurs: the commercial relevance analysis is not something you do after the “does it work” analysis. You must address commercial analysis at the front end and throughout the life of the project, or risk the all too common mistake of investing time and money in proving out the technical feasibility of a project that, with a little commercial viability analysis, you should have killed off early on.

Intellectual Property Risk. Intellectual property  (“IP”) risks (and rights, for that matter) are one of the most misunderstood parts of the risk puzzle. First, many entrepreneurs (and more than a few investors) think that the commonly heard refrain that a new high impact business must have a “sustainable unfair competitive advantage” to merit investment means that such a firm must have some sort of magic bullet that no one else has access to. The fact is, that while “magic bullets” do exist – for example the patent on aspartame (long expired) – that give their owners serious market power for some period of time, magic bullets are seldom as magic as they seem – saccharin, after all, lost sales to aspartame but remained (and remains) a significant player in the alternative sweetener market. So, even if a startup has a “magic bullet” it will pay to thoroughly assess just how magic the bullet really is.

Alas, most startups do not, in fact, have magic bullets, at least not at the startup stage. The more important IP risk question for most startups is not “does the entrepreneur have a magic bullet” but rather “does the entrepreneur have a feasible path to developing an important, if not magical, intellectual property moat around the business?” Brands, for example, can be extraordinarily valuable IP assets: but almost by definition they have little or no value when the business is launched but rather become valuable if the business successfully nurtures them as it grows. Too many entrepreneurs (and too many less experienced investors) think of IP risk solely in terms of magic bullets when, in fact, most startups rely more on IP assets they create on the fly than IP assets they start out with.

Execution Risk. Most entrepreneurs and investors, if asked to think of startup risk in terms of four elements, would include “the team” as one of the risks. As it turns out, so would I – except that I think that the term “team” rather begs the real question: to wit, can this team execute on the (almost always evolving) opportunity. The question is not “are these all good people” but rather are these the right good people to execute this opportunity.

The best entrepreneurs and investors understand that building a team is not about drafting the best players (to use a football analogy) but rather about drafting the players best suited to manage through the particular technology, market and intellectual property risks that face the new business. If the technology risk, for example, is more about transitioning a business process to an SaaS environment, you want a CTO with commercial development strengths, not a CTO commonly recognized as the brightest bulb on the theoretical bleeding edge of the computing-in-the-cloud universe. If your ultimate IP moat is going to be your consumer brand, you want business development folks with consumer brand-building bona fides, not business-to-business strengths. If your developing software for managing drug discovery and development processes, you want people with first-hand knowledge of that market, as opposed to people who, say, have been successful marketing administrative software to law firms.

Conclusion. As noted, the above is my personal take on a 30,000 foot view of how to understand risk in the start-up high impact business environment. I have doubtless glossed over (or missed entirely) issues that some entrepreneurs and investors would think deserve at least a sentence or two even in such a short essay. That said, I think that an entrepreneur who understands the “big picture” of risk analysis as outlined above will be well on her way to assessing her own startup’s risk, which is the first step to developing a plan that will convince investors that she can manage those risks.


Supreme Court Encourages Ingenuity, Maintains Status Quo in Patent Law

July 2, 2010

By: Jonathan M. Fritz

In a much anticipated decision, the U.S. Supreme Court in Bilski, et al. v. Kappos, 561 U.S. ____ (2010), held that a claim to a method of hedging against price fluctuations is unpatentable. The narrow majority opinion relied upon the Court’s precedent prohibiting the patenting of abstract ideas. However, the Court refused to hold that so-called “business methods” are always unpatentable. The Court also indicated that the “machine or transformation” test established by the Federal Circuit Court of Appeals in 2008 is not the sole test for determining whether subject matter is eligible for patent protection. The ruling has particular implications for the financial services, software, and biotechnology industries.

In a 2008 ruling, the Federal Circuit held that to be patentable, a process must either be implemented by a machine or transform a physical object, material or data that represents a measurable quality or a physical object. By rejecting the “machine or transformation” test as the exclusive test for deciding what qualifies as patentable subject matter, the Supreme Court broadened the scope of patentable inventions previously restricted by the Federal Circuit. Although the Supreme Court failed to provide a bright line rule, some guidance can be gleaned from the Court citing its own precedent that “Congress plainly contemplated that the patent laws would be given wide scope” and that “ingenuity should receive a liberal encouragement.”

The Bilski case arose from a 1997 patent application by Bernard Bilski claiming a method to offset risks in commodity trading. The claimed invention did not require Bilski’s method to be carried out using a computer or machine. In other words, if issued, a patent on Bilski’s method could be infringed simply by carrying out the steps mentally or using a pencil and paper. The U.S. Patent and Trademark Office (“the PTO”) rejected Bilski’s patent application for claiming non-patentable subject matter. Bilski appealed directly to the Federal Circuit and, in February 2008, the court granted an en banc hearing, in which all twelve judges on the circuit participate instead of the usual three-judge panel. Following the Federal Circuit opinion, the Supreme Court granted review and held oral arguments in November 2009.

The Supreme Court Bilski’s decision was announced on the last day of Justice Stevens’ tenure on the Court. Justice Stevens wrote a concurring opinion explicitly stating his opinion that “business methods are not patentable.” Although this was not the opinion of the Court, three additional Justices joined his opinion.

The implications of the Bilski decision remain to be seen. While the Court held that the “machine or transformation” test is not the exclusive test for patentability of process inventions, it left unclear what business method claims would be patent eligible and how to ensure business method claims do not patent “abstract ideas.” For this reason, drafters of patent applications for business methods and software-related inventions should continue to consider the use of claims that would pass muster under the “machine or transformation” test. These claims should be supported by a detailed description that clearly identifies the technology connected to process claim steps. Even though the “machine or transformation” test is not the exclusive test, inventions that pass this test will most likely be patent eligible.


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