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Leveraging Patent Catalogues to Reap the Benefits of Your Portfolio

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Leveraging Patent Catalogues to Reap the Benefits of Your Portfolio Captured by catalogue Leveraging patent catalogues to reap the benefits of your portfolio It is amazing that it has taken this Patent catalogues are invaluable for long for senior management (prompted companies needing a quick answer by investors) to ask their IP groups what the return on investment (ROI) is on all of to what IP assets they own and what this. This article focuses on the concept these are worth. As investor interest of the patent catalogue – a database and in IP monetisation continues to soar, workbench that incorporates tools to a well-maintained catalogue can be help IP practitioners develop tactics to a crucial part of a business strategy define and support an effective patent and licensing strategy. By applying some or all of these tools, practitioners will be better By Terry Ludlow positioned to answer the hard questions related to the ROI and value of their A sea change is taking place with regard to companies’ IP portfolios. IP awareness. Senior management in many Apple and Samsung are currently locked technology companies are being pressured in a billion-dollar litigation over patent for answers to the question: “What is our infringement. Allegations of IP theft and intellectual property worth and how are we unethical conduct abound in the popular seeing returns on this value?” Interest was press. However, nothing could be further first sparked by the US$4.5 billion Nortel from the truth. The patent thicket is dense patent sale. Follow-on deals – such as in the technology industry and cross- AOL’s sale (perhaps prompted by dissident licensing is standard practice. In theory, shareholders) of patents to Microsoft for royalties flow from low R&D companies more than US$1 billion and the high-profile and new market entrants to high R&D sale of the remnants of Kodak’s patent companies, which have invested and rights for US$525 million – have cemented pioneered the technology that enables, for the notion in the investor community that example, today’s smartphone handsets. patents are valuable (see Table 1). In practice, the advantage goes to the well A typical mature technology company prepared. A patent catalogue is designed holds thousands of patents. To an investor, to be a 24/7/365 effort, which prepares these appear as a cost centre. An average any company for the challenges it will face patent will cost between US$8,000 and in executing a patent strategy that fully US$10,000 to draft and between US$2,000 supports its strategic business plan. and US$5,000 per jurisdiction to file. At an average drafting and prosecution cost of Patent quality versus patent value US$10,000 per patent, IBM’s 6,000 patents Although the terms ‘patent quality’ a year would cost it US$60 million in the and ‘patent value’ are often used United States alone. Add maintenance fees interchangeably, they are in fact separate to this (eg, Round Rock Research’s portfolio concepts. ‘Quality’ refers to the legal aspects of just over 3,000 US patents costs over of a patent – high-quality patents meet US$2 million per year in maintenance or exceed the statutory requirements for fees), and it is clear that developing and patentability. ‘Value’, on the other hand, maintaining a typical technology company’s applies to the business aspects of a patent patent portfolio is a big budget item. – that is, a technology’s market value as www.iam-magazine.com Intellectual Asset Management July/August 2013 81 Captured by catalogue incorporated into products and services Table 1. Corporations driving up the value of patents being sold on the market. Date Deal Amount # of patents Patent quality The US Patent and Trademark Office April 2011 OmniVision acquires Kodak patents US$65m 850 (USPTO) – aided by companies including July 2011 Google acquires IBM patents Unknown 1,000 IBM, Google and Microsoft, and by July 2011 Rockstar acquires Nortel patents US$4.5b 6,000 several law schools in the United States April-Aug 2011 HTC acquires patents from ADC, US$400m 300+ – has studied the legal requirements and S3* and Dashwire best practices for meeting quality legal August 2011 Google acquires Motorola Mobility US$12.5b 17,000 requirements. A couple of projects, such September 2011 Google buys more IBM patents Unknown 1,000 as the Community Patent Review project September 2011 Nokia/Microsoft give right to license Unknown 2,000 and the Software Partnership project, have to Mosaid looked at obviousness, in particular in April 2012 AOL sells patents to Microsoft US$1b 800 software patents. The Peer to Patent project April 2012 Microsoft sells to Facebook US$550m 650 and the new AskPatents.com website – June 2012 Interdigital sells to Intel US$375m 1,700 which crowdsources prior art submissions November 2012 MIPS sells to Bridge Crossing LLC US$350m 580 – focus on improving validity. January 2013 Unwired Planet buys Unknown 2,000+ According to most accepted definitions, Ericsson patents ‘patent quality’ is a concept best left to January 2013 Kodak sells patents to Apple, Google US$527m 1,000 legal scholars. Debates on standards for obviousness and improving methods Source: Chipworks, 2013 for thoroughly checking prior art during prosecution will result in higher-quality Table 2. Patent portfolios can be used to achieve different business objectives standards for patents. Senior management and the average investor will assume that 1. Motivation Motivating employees basic legal standards for patentability, 2. Brand Attracting customers, partners and investors and therefore patent quality, are being 3. Protection Protection of your products maintained in a portfolio. From a business 4. Improvement Protection of future/improved products standpoint, value is much more interesting. 5. Blocking Patents not used by owner, used to block competitor products Patent value 6. Confusion/intimidation Intimidating competitors Patent value can be determined in many 7. Licensing-out Better market penetration, generating income different ways and the choice of method 8. Assertive licensing Generating income often depends on the purpose of the 9. Cross-licensing Access to third-party technologies valuation, as outlined below. 10. ROI/salvage Return on R&D – US$20K patent Accountants often need to determine 11. Patent transfer/M&As Generating income or cost savings; joint ventures the value of a portfolio to report to or start-ups shareholders or submit to tax authorities. The balance-sheet definition considers a patent portfolio as an asset, like a building the value of a patent portfolio with its or mineral rights over a given piece of cost. However, does ‘cost’ mean the R&D land. It usually invokes complex formulae cost of developing the patents, the cost of designed to set the asset value of each producing the products that use the patents patent in the portfolio, before summing up or simply the cost of drafting, prosecuting the total. Surprisingly, there is seldom any and maintaining the patents? Does cost examination of the patents to determine have any relevance to the value that a their value. The balance-sheet definition prospective buyer or licensee puts on a recognises that a patent portfolio is a patent portfolio? This definition is best left tangible asset and attempts to put a price for accountants who need a simple solution on it. However, it fails to set a market-based to an accounting problem. standard for evaluating the various elements A more practical definition of value – the patents – that together make up the looks at the portfolio’s ability to support asset. This method fails to recognise that a company’s strategic business objectives, between 95% and 97% of patents have rather than the intrinsic quality of little or no value. The key to determining individual patents (eg, how well they are a portfolio’s value is to find the potential written; how non-obvious and distinct from ‘star’ patents and then leverage them to prior art they are). This premise implies match and support strategic business that although legal advice is essential, it opportunities. is not a company’s lawyers, but the senior By contrast, the cost definition of business managers who have the final word patent portfolio value attempts to equate in determining a portfolio’s value. This 82 Intellectual Asset Management July/August 2013 www.iam-magazine.com Captured by catalogue Figure 1. Patent value versus number of patents highlighted by litigators when they are turned loose and have a big enough budget. 3 - 5 claim charts < 20 claim charts Serious settlement discussions happen < 20 patents < 100 patents sooner when a sufficiently large group of Potential licensee will try to win Potential licensee cannot win patents is asserted as a portfolio, convincing Small early settlements or long litigation Likely settle soon and for large number the potential licensee that there is a high probability it will need a licence. Conversely, Elpida/Acacia model Micron/Round Rock model at some point this equation flips. Each additional patent in a specific technology < 3 claim charts area is worth progressively less once the Likelihood of success low without quality patents critical mass is exceeded – value generation can be optimised by splitting the portfolio Value of patents Number of patents into parallel portfolios. And thus many a Source: Chipworks, 2013 privateer is spawned! Strategic objectives for IP programmes can be measured by its ability to support Patent and IP strategies do not exist in various business objectives by: a vacuum. Patent strategies should be • Directly generating revenue through an important component of an effective friendly or adversarial licensing. business strategy. Examples of the • Protecting market share in present and successful use of patent portfolios to future businesses.
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