Major technology vendors are financing the activities of so-called patent trolls, according to experts, court documents and patent and other legal filings, an investigation has found.
Patent "trolls", more politely called mass patent aggregators, non-practicing entities or, as the US Federal Trade Commission defines them, patent assertion entities (PAEs), litigate more than they innovate. These companies derive the bulk of their income, if not all of it, from licensing the huge libraries of patents they hold and from the money they make by suing companies that use their patents without permission.
The bottom line for both consumers and IT professionals is that the costs of defending patents are passed along to consumers in the form of higher product prices, and the lawsuits hamper technology innovation, experts say. Some tech vendors, including Apple and Micron, rail against the concept of patent 'nuisance' lawsuits, only to fund or otherwise support some of the patent aggregators.
In a May 2011 report, Citigroup analyst Walter Pritchard said that phone maker HTC pays Microsoft $5 for every Android phone sold as part of a patent settlement reached in April 2011. By those numbers, HTC paid Microsoft somewhere between $35 million and $45 million in the first quarter of 2011 for patent fees alone.
Patent litigation has increased by more than 230% over the past 20 years, according to Article One Partners, a patent organisation. Further, Article One says, in 2008, some 2,896 patent infringement actions were filed, only 179 fewer than in 2004, the peak year.
"Most of the major tech companies are backing a troll in some way, probably financially," says Thomas Ewing, an attorney who has authored reports on what he calls "patent privateering" and whether patent "giants" are dangerous for American innovation.
One example, according to patent attorneys and other experts, is Intellectual Ventures (IV), a patent-licensing firm founded in 1999 by former Microsoft executives Nathan Myhrvold and Ed Jung, among others. According to a court document that IV filed in April 2011 and then fought to keep secret, IV investors include Adobe, Apple, Cisco, eBay, Google, Intel, Microsoft, Nokia, Nvidia, SAP, Sony, Verizon and Xilinx.
Each of these tech companies made a financial investment in IV. All except Google and Adobe went for more than one round of funding. IV has raised at least $5 billion from investors, including tech firms.
All the technology companies named as IV investors were contacted multiple times for this story; none except Verizon would comment for attribution. Nor would IV comment on the record about its Who's Who list of investors, which also includes universities and charitable foundations.
Nat Goldhaber, managing director of the venture firm Claremont Creek Ventures, explains that "all these companies are using Intellectual Ventures as a patent pool to avoid suit and [have the ability to] cross-license" the patents in the pool.
In January, attorney Ewing and Robin Feldman, a professor at the University of California's Hastings College of Law, published a comprehensive report in the Stanford Technology Law Review that among other things detailed the intricate linkages between some technology vendors and PAEs.
"Big companies aren't just doing this for troll litigation chump change," Ewing explains. "They're doing it for strategic reasons of protection... or [to] cause competitive disruption and do so in a way that avoids showing they're obviously involved." The evidence for all this is "hidden," he says, "but it is hidden in the public record in plain sight."
In that January report, Feldman and Ewing acknowledge that PAEs could "potentially have positive effects." Among other things, they say PAEs could ensure that individual inventors receive the compensation due to them, and could create "a powerful weapon stream" to deter lawsuits. Another benefit to joining up with aggregators is the notion of cross-licensing under the PAE's umbrella, members using each other's patents without fear of being sued.
However, the report goes on to say that "the activity of mass aggregation brings its own potential harms." Among these are "potentially reducing future innovation and productivity." Most important, the report says, "the basic business model of mass aggregation is troubling."
Under the radar
The situation is so secretive that very few sources, and especially those in companies involved directly with any PAEs, agreed to be quoted on the record for this story. Instead, almost all spoke on the condition of anonymity, but Computerworld verified information in this story by looking at court documents, applications with the US Patent and Trademark Office, filings with the US Securities and Exchange Commission (SEC) and other legal documents.
Indeed, Intuit and Verizon, according to SEC filings and sources speaking not for attribution, paid, respectively, $120 million and $350 million to IV in exchange for access to some part of the 35,000-plus patents in its collection. Also, Verizon was missing from the lineup of mobile service providers that Intellectual Ventures I LLC and Intellectual Ventures II LLC sued on February 16. On that date, IV sued five mobile carriers, Sprint, AT&T, Nextel, T-Mobile and SBC Internet Services, for patent infringement.
Robert Varettoni, a Verizon spokesman, responds: "Our comment [about IV] is in our 10K", the SEC document Verizon filed in 2008 that references the $350 million figure.
Here's an excerpt from Verizon's 2008 SEC filing:
"During 2008, we entered into an agreement to acquire a non-exclusive license [IP License] to a portfolio of intellectual property owned by an entity formed for the purpose of acquiring and licensing intellectual property. We paid an initial fee of over $100 million for the IP license, which is included in [other] intangible assets and is being amortized over the expected useful lives of the licensed IP."
Additionally, the SEC filing said, Verizon invested $250 million "to become a member in a limited liability company" that gives Verizon rights to "certain intellectual property" in return for an annual license fee.
Verizon had no further comment on the matter. "The bottom line is Verizon has nothing to do with IV's attempts to license its patents to other companies or the lawsuits it filed," Varettoni adds.
For its part, Intuit refused comment.
An aggregator's response
Like fellow PAEs, which include Round Rock and Acacia Research Group, IV says it provides a service for individual and small inventors, helping these innovators secure their intellectual property by getting access to patents they can use to protect their work.
Patent licensing is huge business. Acacia, a public company, is not secretive about its activities, and it returns a profit to its vendors. Firms such as Allied Security Trust are self-described patent defence firms that buy up and resell valuable collections of patents and give members including Oracle, IBM, HP, Intel and Philips access to their broad portfolios.
IV's Myhrvold declined to comment for this story. But in a March 2010 Harvard Business Review article that Myhrvold wrote, he said, "My company, Intellectual Ventures, is misunderstood. We have been reviled as a patent troll, a renegade outfit that buys up patents and then uses them to hold up innocent companies.
"What we're really trying to do is to create a capital market that supports startups and the private equity market that revitalises inefficient companies. Our goal is to make applied research a profitable activity that attracts vastly more private investment than it does today so that the number of inventions soars."
Further, some might not consider IV a 'pure-play' PAE; it has invented at least one product it's disclosed publicly: a laser-based bug zapper created with the Bill & Melinda Gates Foundation to help fight malaria.
Google: in, then out
Google, also, refused to comment about multiple sources and public documents showing that it invested money in one of the companies related to the fund known as the Invention Investment Fund I.
A highly placed source close to Google confirmed that Google did originally invest in IV as a member, but only once. There has since been a bitter parting of ways, that source says. "As soon as they started suing people," Google "wanted out," the source says.
Google initially joined because it wanted to have access to a broad number of patents, but it later decided not to associate with a company that turned out to be mostly about lawsuits, he says. Two other sources close to or inside Google have corroborated this account.
The bottom line: The search giant made an investment of well into the tens of millions of dollars in 2008 in the IV entity known as IV IP I, the source said, and refused to go for a second round. Google and Adobe are the only technology companies among the current IV backers that didn't invest at least twice.
It's important to keep in mind, however, that none of these practices is illegal. It is endemic to the patent system in the US. There are more than 2 million active patents in the US alone, Ewing says, but only "a tiny fraction" of them are used commercially, either through licensing or through litigation, he explains.
"The aggregation model stands to increase the number of patents in play by one to two orders of magnitude," Ewing says. "I suspect the truth is that no one really knows what the net commercial impacts will be."