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  • Clouding IP LLC: All filed in Deleware, “Technique for Enabling Remote Data Access and Manipulation from a Pervasive Device” also used to sue news companiesPersonalWeb:All in Eastern District Texas

Transcript

  • 1. Intellectual Property Strategy: Challenges and Opportunities in the Cloud December 12, 2012Efrat Kasznik, Founder & PresidentForesight Valuation Group, LLC
  • 2. About Me: Efrat Kasznik  Founder and President, Foresight Valuation Group (Palo Alto, CA), a Silicon-Valley based intellectual property, valuation and start-up advisory firm.  Lecturer on IP Strategy, Stanford Graduate School of Business (MBA class)  Licensing Executives Society (LES), High Tech Sector - Leadership Committee; Chair, Nanotechnology Committee  Intellectual property (IP) valuation and strategy expert, with 20 years of experience analyzing IP portfolios for mergers & acquisitions, financial reporting, technology commercialization decisions, tax compliance, transfer pricing, litigation damages and business liquidations.  Work with corporate clients across industries, from Fortune 100 to start-ups, as well as law firms, universities, research institutions, inventors, IP brokers and patent funds. Extensive telecom expertise, including: AT&T, Avaya, Juniper Networks.  Co-founder, CFO and adviser to startups in the fields of telecom, media, cleantech and healthcare.Foresight Valuation Group © 2012
  • 3. Outline  The IP (Patent) Marketplace in the US  Mobile Wars  Ecosystem and Forces  Is the Cloud Market the next Litigation Battlefield?  How is Cloud Similar to Mobile?  Early Indicators of Patent/Litigation Activity  What to Expect in the Next 5 Years?  How to Avoid Litigation Armageddon…  Best Practices in IP Portfolio ManagementForesight Valuation Group © 2012
  • 4. The Mobile Patent Wars Apple alone has been involved in 142 smartphone patent lawsuits since 2006. The top 10 litigants have over 1,000 smartphone related lawsuits between them Source: The Guardian and New York TimesForesight Valuation Group © 2012
  • 5. Multi-Billion Dollar Deals Involving IP Apple, Microsoft, Google, the losing bidder Research in Motion, EMC, in the Nortel auction, Ericsson, and Sony announced the $12.5 joined together in a billion acquisition of consortium to win an Motorola Mobility, whose auction for the 6,000 IP portfolio includes patents of the bankrupt 17,000 issued patents Nortel at a price of $4.5 and 7,500 patent billion. applications. June 2011 Aug 2011Foresight Valuation Group © 2012
  • 6. Mobile Market Patent Activity  Redistribution of IP holdings through Land-grab and Turf-wars…  Global Litigation  Global court battles: Apple-Samsung (2011)  Non-Practicing Entity (NPE=”Troll”) litigation: NTP-RIM $612.5 MM in damages (2006)  Multi-billion Dollar IP Transactions  Patent acquisitions: Nortel patent auction (2011)  Company Acquisitions: Google/Motorola mobility (2011)Foresight Valuation Group © 2012
  • 7. A “Perfect Storm” in the IP Marketplace IP MarketplaceForesight Valuation Group © 2012
  • 8. The New Patent Marketplace in 21st Century – Rise of the Intermediaries Enforcement (Litigation) IP Creators IP Users - Operating Companies - Operating Companies - Independent Inventors - Others - Universities Patent Sales/licensing - Research Institutions - Gov’t labs Cross Licensing Intermediaries: •Non-practicing entities (NPEs) •Patent Funds/Aggregators (Intellectual Ventures) •Market Makers (Auctions, patent exchange) •Financial services (securitization, litigation finance)Foresight Valuation Group © 2012
  • 9. Is Cloud the Next Patent Battleground? Attribute Characteristics Mobile Cloud? Market Size Explosive Market, large economic stakes  ?? Products/ Multiple features in one product  Services Multiple layers of Services in Platform  IP Landscape Patent thicket – overlapping claims  ?? Business method patents – broad claims  ?? Competitive Incumbents with large IP holdings   Dynamics Newcomers entering markets without IP   NPE (trolls) patent holders  Foresight Valuation Group © 2012
  • 10. Market Size: Explosive GrowthForesight Valuation Group © 2012
  • 11. Products/Services: Multiple Cloud Service LayersForesight Valuation Group © 2012
  • 12. Cloud Patent Landscape: Accelerated Patenting Activity 6000 5154 5000 4801 Cumulative Count of Patent Families 3867 4000 3000 2781 2090 2000 1556 1143 837 1000 512 248 0 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 Note: Filing Year  The search has been conducted from 2003 onwards.  Number of patents for 2011 & 2012 may be incomplete because some of the applications might not have been published yet.  The counts are indicative and not comprehensive.Foresight Valuation Group © 2012
  • 13. Cloud Competitive Dynamics: Incumbents with Large Patent Holdings 800 Count of US patents Families 694 700 600 500 400 333 293 300 200 125 103 97 82 78 75 100 51 0 IBM MICROSOFT HEWLETT HITACHI ORACLE Hon Hai CISCO FUJITSU LTD AMERICAN NEC CORP PACKARD Precision POWER Industry CONVERSION Assignee Note:  The search has been conducted from 2003 onwards. The subsidiaries of the assignees have not been considered for the analysis.  Number of patents for 2011 & 2012 may be incomplete as some of the applications might not have been published yet.  The counts are indicative and not comprehensive.Foresight Valuation Group © 2012
  • 14. Cloud Computing – Taxonomy Cloud Computing Architecture Management Security (889) Services (2412) Storage (584) (1237) (1761) APIs Storage Deployment Models Provisioning Access Control System/Hardware Cloud Engineering Load Balancing Fault Tolerance Web Services & Storage PlatformTechnologies Enterprise Applications Virtualization Resource Management Cryptography & Secure Storage Virtualization Transmission Mobile Applications Performance Data Storage Management & Billing Cloud Client Software Cloud Firewall/Gateways Scalability & Software as a Service Maintenance Infrastructure as a Bandwidth Service Management Platform as a Service • Dell Service Cloud • Amazon CloudWatch • IBM Hosted Application • Amazon Relational • Cisco MDS 9000 Family Implementation Security Management Database Service (RDS) Solution • Amazon EC2 PackagesProducts* • Citrix Cloud Gateway • Apple iCloud • Amazon EC2 Instance • BMC Cloud Lifecycle • Oracle Automatic Storage Management • Symantec.cloud • AWS Amazon Cloud Drive Storage Management • EMC VPLEX • VMware vCenter • Symplified Cloud Access • IBM Sterling B2B • VMware vSphere Operations Management Manager Integration Services • IBM SmartCloud Archive • Citrix Cloud Platform Suite * Product list is indicative and not comprehensive
  • 15. Cloud Patents by Technology Area (Since 2003) 3000 2500 2412 2000 1761 Count of Patent Families 1500 1237 1000 889 584 500 0 Architecture Manangement Security Services Storage Note:  The search has been conducted from 2003 onwards.  Number of patents for 2011 & 2012 may be incomplete because some of the applications might not have been published yet.  The counts are indicative and not comprehensive.Foresight Valuation Group © 2012
  • 16. Cloud Litigation/Collaboration Trends  No signs of litigation between any of the large IP holders, not likely either  Cross Licensing between large players  Likely to see litigation between startups/large players  Early signs of troll litigation  Early signs of collaboration:  Facebook’s Open Compute Project technologies as open hardware, our goal is to develop servers and data centers following the model traditionally associated with open source software projects…”Foresight Valuation Group © 2012
  • 17. Are Trolls Coming to the Cloud? “Patent Trolls Are Hindering Innovation at PersonalWeb Technologies Rackspace—And Our Customers” (2011-2012) -Alan Schoenbaum, SVP, General Counsel and Secretary at  Amazon/Amazon Web Services  Autonomy Rackpsace (October, 2012)  Caringo  EMC  Google/YouTube Clouding IP LLC (2012)  NEC Corporation of America  NetApp  Rackspace Hosting  VMware  Amazon.com / Amazon Web Services  Apple  Apple  Dropbox  Google  Facebook  Microsoft  Microsoft  IBM  Oracle  Nexsan Technologies  Motorola Mobillty  Rackspace  YahooForesight Valuation Group © 2012 Source: Pacer, CRN.com
  • 18. Troll Litigation is a Serious Problem! “This year, about 61 percent of all patent lawsuits filed through December 1 were brought by patent-assertion entities, as compared to 45% in 2011 and 23% five years ago” “About 35% of startups that have raised $50 - $100 million have been sued on a patent, as have 20% of the companies that have raised $20 - $50 million” “Estimates on the ratio of demands to lawsuits run between 100:1 to 307:1” Source: Patent Troll Cases Now Dominated by “Trolls”, Study by Colleen Chien, Reuters, December 10, 2012Foresight Valuation Group © 2012
  • 19. IP Strategy Throughout the Lifecycle IP portfolio building Portfolio liquidation Portfolio commercialization & monetizationForesight Valuation Group © 2012
  • 20. Portfolio Building – Early Phase Goals: • Freedom to operate • Block competitors • Support future products • Hedge against litigation • Attract buyers, investors Sources of IP: • Internal R&D  filing patents • Buying patents • In-licensing (university, government labs, etc) IP portfolio buildingForesight Valuation Group © 2012
  • 21. The Chasm as a Critical IP Juncture: Liquidation or Litigation? Litigation Liquidation Portfolio commercialization & Portfolio liquidation monetizationForesight Valuation Group © 2012
  • 22. IP Best Practices: Portfolio Building  Rely on patent analytics  Guide future R&D >> white spaces  Know your competition>> patent landscape (by family, industry)  Identify external sources of IP  Identify potential buyers  Seek legal advice  Patentability assessments, prior art searches, claim drafting  Don’t do it (all) by yourself!  Start early! AIA (First to File) kicks in 3/16/2013  Don’t compromise key filing deadlines by lack of funding  Use “roadmap” approach to filing  Don’t forget your foreign filingForesight Valuation Group © 2012
  • 23. IP Best Practices – Later Phase  Keep Building Your Portfolio as a Strategic Business Asset  Have a clear filing strategy, aligned with your corporate vision  Monitor the industry for buying opportunities (companies, patents, technologies) or licensing opportunities (universities, labs)  Monitor your competitors  Defensive Goals – Manage Litigation Exposure  Don’t panic! Be Prepared…  Assess your options, use litigation data - not only legal analysis (prob. of success, anticipated damages, etc)  Mitigate the risk (patent defense funds) – be proactive!  Offensive Goals – Enforcement & Monetization  Be ready to enforce you IP  Monetize your portfolio regularly  Manage royalty, maintenance paymentsForesight Valuation Group © 2012
  • 24. What to Expect in the Cloud market  Foresights Predictions for the next 5 years:  The golden age of cloud patent litigation is about 5 years away  First signs of troll litigation are popping up  The cloud market can avoid mobile Armageddon by better collaboration  Startups need to be aware of patent traps and plan their strategy accordingly  First to File enhances the urgency of global patent filing for all players  WHAT DO YOU THINK?Foresight Valuation Group © 2012
  • 25. THANK YOU! Efrat Kasznik President, Foresight Valuation Group ekasznik@foresightvaluation.com 650-561-3374 http://www.linkedin.com/in/ekasznikPresentation available upon request