TPG2022 Chapter VI paragraph 6.65

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Particular types of risk that may have importance in a functional analysis relating to transactions involving intangibles include

(i) risks related to development of intangibles, including the risk that costly research and development or marketing activities will prove to be unsuccessful, and taking into account the timing of the investment (for example, whether the investment is made at an early stage, mid-way through the development process, or at a late stage will impact the level of the underlying investment risk);

(ii) the risk of product obsolescence, including the possibility that technological advances of competitors will adversely affect the value of the intangibles;

(iii) infringement risk, including the risk that defence of intangible rights or defence against other persons’ claims of infringement may prove to be time consuming, costly and/or unavailing;

(iv) product liability and similar risks related to products and services based on the intangibles; and (v) exploitation risks, uncertainties in relation to the returns to be generated by the intangible. The existence and level of such risks will depend on the facts and circumstances of each individual case and the nature of the intangible in question.

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