War, peace and patents: How IP unites, divides tech companies |
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A recent flurry of deals and disputes involving technology companies including Microsoft, Amazon.com and Apple demonstrates the growing role of patents in brokering peace and establishing battle lines in an industry that relies on innovation for competitive advantage.
“There’s more awareness of patents as an asset class,” said John Amster, a former executive at Intellectual Ventures who now heads up RPX, a San Francisco-based firm that buys up patents on behalf of technology firms. “Companies are understanding the value of patent aggregation.”
Some of the most recent developments:
• A broad patent cross-licensing agreement announced between Microsoft and Amazon on Feb. 22 gives the companies new opportunities to collaborate while promising to keep them out of the courtroom, even as they increasingly find themselves in competition.
• A licensing pact between Bellevue-based patent firm Intellectual Ventures and Verizon gave the wireless giant extra ammunition in a dispute with TiVo.
• Apple this week sued smart-phone maker HTC Corp., which makes devices for Google and Microsoft, alleging that it violated Apple’s patents on technologies behind its popular iPhone.
• Microsoft last year was forced to make adjustments in its widely used Office productivity suite to remove technology determined by a federal court to violate the patents of Toronto-based i4i.
Patent deals are being fueled by rising recognition that the industry is too complex for a pure do-it-yourself strategy. Especially as economic constraints put a lid on R&D budgets, patent experts say companies are seeing value in broad licensing deals that allow them to avoid costly litigation while taking advantage of each other’s technologies, and to alleviate concerns about running afoul of each other’s patents.
“No company can build everything on its own anymore,” said Marshall Phelps, the industry veteran credited with developing IBM’s patent portfolio into a multibillion-dollar business before leading Microsoft’s efforts to establish its own patent licensing business. “If that’s no longer the case, then the highest and best use of your intellectual property is to, in effect, trade it with other companies that have intellectual property, and to use the best of both.”
The shift in mentality has been particularly evident at Microsoft. Phelps, who left Microsoft last fall but continues to advise the company, recalled that Microsoft had only one patent cross-licensing deal on the books when he joined the company, and it had expired. But since launching its intellectual property licensing program in 2003, Microsoft says it has entered into more than 600 technology licensing deals.
Microsoft has simultaneously amassed a huge patent portfolio of its own. With more than 2,900 assigned patents last year, the Redmond company was the No. 3 patent recipient in the world, behind only IBM and Samsung, according to an analysis published by IFI Patent Intelligence, a patent information firm.
Unlike IBM and other companies that make huge sums on their patents, Microsoft has said its decision to launch a licensing program in 2003 was more about protecting the company’s interests and collaborating with others in the industry. However, the initiative has also proven divisive, highlighting the company’s assertions that Linux and other open-source software technologies violate its patents.
That was evident in the announcement of the Amazon.com cross-licensing deal. In a news release, Microsoft made a point of noting that the pact covered Amazon for its use of technologies including Linux servers and open-source components of its Kindle reader. Some open-source software advocates saw that statement as more evidence of Microsoft attempting to create uncertainty about Linux, which competes with Microsoft’s Windows operating system.
A few days later, Microsoft struck a patent deal with Panasonic, and on March 3 announced yet another agreement, with Japan-based I-O Data Device Inc.
Large patent aggregators such as Intellectual Ventures, founded by former Microsoft exec Nathan Myhrvold, are also playing an increasingly prominent role in the tech industry. Intellectual Ventures has acquired a huge pile of 30,000 patents from individual inventors, universities and businesses, which it turns around and licenses to tech companies (leading some critics to label it a patent troll that extracts payments without actually producing anything).
More recently, the firm has shown interest in opening its vast patent library to firms that are building a defense against litigation. Intellectual Ventures’ patent sale to Verizon helped the company build a counterclaim against TiVo, which is suing the wireless giant for patent infringement over its use of “time-shifting” technology for recording and later playing back video content in its FIOS television service.
“We’re continuing to see the growing evolution and legitimacy of the IP trading market,” said Ron Epstein, CEO of IPotential LLC, a patent brokerage in Silicon Valley, and former director of licensing for chip giant Intel. “Patent purchasing has become absolutely an accepted and required part of portfolio development strategy.”
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