March 1, 2018
An NPE patent do-si-do
The infamous NPE Intellectual Ventures is changing their tack. IV has a famously large network of subsidiary companies holding a vast number of assets for licensing, ultimately making it impossible for companies to find the patents before paying up. While most of their licensing came from patents they acquired from other companies, they announced last year that they have moved away from acquiring assets. Instead, they’ve pivoted, offloading thousands of patents they originally acquired from Kodak and then handed them over to fellow NPE Dominion Harbor a year ago. Now, they’ve sold another batch of patents to defensive aggregator RPX.
Why it Matters
Previously IV offloaded their acquired patents, whereas in this instance the IV subsidiary they are coming from is associated with their “home grown” patents. Could this be IV’s new business model? Another point of interest is that RPX picked up the patents, having previously taken hold of the Rockstar portfolio, showing they are the go-to place for NPE divestment.
We’ve been saying for some time that the US is less NPE-friendly, and how Europe is an obvious next port of call for the NPEs. DartsIP has produced a report showing what NPEs have been up to in the EU since 2007. They found that NPEs have shown a 19% growth year-on-year, and that only 5 NPEs accounted for 60% of the NPE litigation, showing that not many have committed to this fully. They also found that Germany was favoured by the NPEs, likely because of their fast procedures and ability to grant injunctions prior to completion of the invalidity action, plus the fact that infringement and invalidity actions are dealt with in different courts.
Why it Matters
NPEs actions are effectively a measure of IP enforcement effectiveness, as they will only go where they can make the infringement cases work out for them. While the US has made enforcing software patents into something of a minefield, NPE litigation in Europe is on the up, and one look at the most common defendants shows that Telecoms is the big tech area being litigated. With the Unitary Patent coming into force soon, could this be the shape of things to come?
While we’re on the subject of growing patent court usage, IAM recently published a look at the 42-case campaign between Samsung and Huawei in China. All the patents asserted thus far have undergone invalidation proceedings, with both parties’ non-SEPs suffering badly, with 12/15 of these being invalidated including all 8 of Samsung’s. The SEPs are faring better, with 6/27 being invalidated, showing that these are much better patents.
Why it Matters
As seen in the data, Huawei seems to be faring much better than Samsung in China. This is a reverse of the phenomenon seen before, where there was no such thing as a home advantage in Beijing in 2015 with foreign plaintiffs winning all 65 of the cases. With Chinese IP on the up, companies around the world will be watching statistics like this closely when considering enforcement.