ipVA’s blog on adding value through intellectual property

Regular readers of the Tangible IP blog will know that we do not look on NPEs, or “patent trolls,” favorably. They have the ability to significantly impede a company’s business, as they have nothing to lose and everything to gain from asserting patents. It seems that we are not alone in this view – “Stopping this drain [by NPEs] on the American economy will require swift legislative action, and we are encouraged by the attention the issue is receiving in recent weeks,” White House spokesman Jay Carney said in a statement.
At this point, it is important to note that we have no problems with the lone inventor – the original founders of ideas or concepts or markets, who, on his or her own (or with funding) seeks to assert intellectual property rights against large organizations using that inventor’s technology. It is non-practicing entities, or trolls, using IP to punish the market that we take issue with.
We were pleased to read that the White House shares our belief that NPEs are a drain on businesses and a drag on the technology sector, and welcomed the news that President Barack Obama has taken aim at NPEs as part of a shakeup of the US’s patent system.
Obama has long been part of our “anti-troll” brigade. The America Invents Act (signed in 2012) made a first attempt to stamp out patent trolls, obliging them to file individual suits against companies rather than multiple defendants.
Obama has proposed a number of changes to the US patent system and associated organisations. These include:
• requiring full disclosure of the real owners who stand to benefit from patent assertions when demand letters and suits are filed;
• allowing lower courts to award costs of litigation to the winner in a case, to dissuade nuisance filings;
• expanding the US Patents & Trademarks Office coverage of “computer-enabled patents” and allow more challenges to already-issued patents;
• protecting end users from litigation if they use a product accused of infringing a patent;
• raising the standard used by the International Trade Commission (ITC) in deciding whether to allow sales bans, and enable it to hire “qualified” judges in the relevant law; and
• putting “demand letters” in which patent owners seek money into a publicly searchable database.
• requiring companies that sue for infringement to have updated ownership information on file with the U.S. Patent and Trademark Office. Obama has urged the patent office, part of the Department of Commerce, to write a similar regulation.
These actions were aimed at improving incentives for high-tech innovation, a major driver of economic growth, the White House said

We are of the view that an alternate reward system needs to be created, and would seek to define a model going forward – an efficient system under which prior art and predecessor technology would be rewarded for the contribution they made to a business’ success.These steps, both actual and proposed, in conjunction with the 2013 “Saving High Tech Inventors from Egregious Disputes” (SHIELD) Act – which, amongst other things, proposes that the loser pays the winners fees in IP litigation – makes it clear that the U.S is taking innovation seriously. It is about time other western economies followed suit.

ipVA – Barck Obama: IP Strategist (by Ruth Hennessy)-8th June 2013

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Been a while-time to come out of Winter hibernation

I can get out of many good habits during the British winter, and this has been a particularly rotten one, so I’ve got out of the blogging habit. With temperatures hitting a heady 11° C in London today it seemed like a good time to get back in the habit.

But at least my own hibernation is only seasonal. Take IP by comparison and when I connect on LinkedIn to the smiling Irv Rappaport (http://www.ipcheckups.com/company-overview/management/) and he tells me that he’s been evangelizing IP for 50 years and it feels like I could hibernate for another 20 years and I may just wake up and find that nothing IP has changed and IP might still be frozen out of mainstream thinking. 

But there’s nothing like a smiling Rappaport (or better two) to cheer me up out of that negative thought. Irv tells me that his equally smiley son, Matt, and he are the only father and son combination in the IAM300. That’s something to celebrate don’t you think. Matt thinks so: http://www.ipcheckups.com/company-overview/management/

Who was it that wrote “nothing dies as hard as a bad idea”.  I think it was Yates in one of his follow-ups to the brilliant Revolutionary Road. There is a gloomy scenario where all of this bright IP thinking turns out to be just smoke and mirrors and never, in our lifetimes, reaches mainstream.  Where only a few trolls and troll advisers and patent fundamentalists ever make a difference (or any serious money). How frustrating would that be?

As I’m a natural optimist, I prefer to think of the IP community as Outliers, as described by Malcolm Gladwell in his book of the same name.  Gladwell describes Joe Flom, a founding partner of Skadden Arps, as an outlier, someone who practices 10,000 hours at his out of vogue litigation/hostile takeover practice area, before that market explodes in the 1980s and he becomes one of the go to lawyers.  

Gladwell’s theory is tested on The Beatles, Bill Gates, Fleetwood Mac and a whole host of others who appeared to come from nowhere when they went viral (or whatever the pre-Internet equivalent to viral was) but had actually been steadily practicing and just hanging in there and not giving up for many years.

As a positivist therefore, there are for certain some signs of the pure IP strategy market maturing outside of the landmark Nortel and AOL stories. Here are a few:

• A very good pull out in the UK Times in March called Raconteur IP, the online version of which is here.  Thanks to Joanna Goodwin for including a quote from YT in the editorial.  

“IP strategist Andrew Watson believes the way forward is to educate UK businesses to view IP as a strategic priority.  “Innovation is in our DNA, but we need to develop the skills to know what to do with it,” he says, adding that other countries, notably China, have a national IP strategy.

Well said Sir! And I do think he’s right.  One our most fundamental problems is to educate our market. And no, they don’t know or won’t admit that they need it or could even describe what they need.  Dear me! 

• The new UK Patent Box regime. As far as triggers to take IP seriously are concerned, this one is actually pretty effective. There is a transitional introduction of the relief, but to be able to talk to a CEO, CSO, CFO or someone else towards the top of an organization and show him/her a way of possibly taking 12% straight to the bottom line is quite powerful. Add to that a factor we hadn’t anticipated, that analysts of listed companies would start to ask the companies to explain their progress and projected savings via Patent Box and that’s a real bonus.

• Our projects and pipeline. A usual no names, as all of our projects are confidential, but we are in the midst of a couple of really super engagements. Really challenging on all levels. And we’ve a strong pipeline of high-octane companies to whom we are talking and taking through a sales cycle.

• Acquisitions and major collaborations. We’ve got a major tie-up (not yet announced), Ovidian (Joe Siino’s apparently excellent practice) has one and there are some interesting rumours of another shortly to be announced involving another of the good IP strategy houses. A sign?

• Open-mindedness. I’m sure that Irv has seen the same responses in his 50 years, but it can become tiring to have to go back to basics with some of the most  apparently sophisticated people (one CEO of a client even struggled to understand the difference between a patent and a trademark) but the difference now it seems is that CEO’s/investors/funds/CSO’s etc realize that they haven’t got all of the answers, or even know which are all of the right questions to ask. There is something clearly missing in most company analysis using the traditional metrics and measures. Hence, open-mindedness. Even if one fund manager in London told us that we were explaining, in our words, what he called his “fluffy bunnies” theories. I liked that. A lot. I could write a book (in fact I might just do that). 

When I first started IP beating the streets, 41 years after Irv (a little unfair to compare, I’d have to have started my evangelizing in the womb to catch him up) a good friend gave me this and I’ve kept it close to me ever since. It’s a quote from Maurice Maeterlinck, the Belgian philosopher, and it goes like this:

“At every crossroads on the path that leads to the future, each progressive spirit is opposed by a thousand mediocre minds appointed to guard the past..”.

Signs, look out for signs of progress. Don’t look down or back, keep your eyes on the far horizon.  And, in my view, don’t’ call any of them a Tipping Point.

Ta da! Nice to be posting again.

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 To follow up the post last week, I spent much of Sunday calmly and dispassionately looking through the facts and various commentaries surrounding the Hp and Autonomy dispute and thinking through two questions—

• What is really going on here?
• Are there any IP issues, where I can claim some insight and which are worthwhile commenting on?

I decided to stay largely out of the who’s right and who’s wrong debate. Will Hp successfully transition into something of worth to its shareholders? I don’t know enough to comment never mind give an absolute statement like Nick White does to my original post below—I might be opinionated Nick but I’m not so bold as to call a $130bn turnover company a train wreck.

Did Autonomy manipulate its results? That’s a question of accounting and regulatory fact—though the apparent involvement of several leading financial advisory firms in both audit and diligence reviews would suggest that however Autonomy was accounting for revenues and profits, it would be surprising if Hp did not go into the acquisition having diligenced Autonomy with some rigour and therefore with open eyes. What did the board paper say? That would be an interesting disclosure Hp?

I believe that the key IP, or to be more accurate intangible questions to ask, are those posed in Friday’s post.  But I thought I might also try to offer Hp some free IP strategy advice.

The intangible value of Autonomy to Hp

In all of the reporting, the numbers paid and written off get different levels of reporting and it’s hard to work out what is and really was what. The facts appear to be these:

What did Hp actually pay for Autonomy? Hp paid a 64% premium to its market value on the London Stock Exchange in a deal announced on 19^th August 2011, valuing Autonomy at £7bn, or $11.7bn at that time. The various reports seem to give different dollar valuations, anything from $10.1 to $12bn—but this BBC report simultaneous with the transaction being announced can be taken as accurate. We should therefore take $11.7bn as the accurate number.

What did Hp write down? On Tuesday 20^th November 2012, Hp wrote down its own total value by $8.8bn, all of which it attributed to Autonomy. That took Hp’s $6.8bn profit for the period down a net loss.

Why did Hp pay such a large premium for Autonomy in the first place? I can only go back to Leo Apotheker’s statements at the time–

“Autonomy represents an opportunity for HP to accelerate our vision to . . . lead a large and growing space, which is enterprise information management. If we execute this deal it will position HP as a large and growing leader in the space”.

Ignore the numbers paid, I suggest, and look at the premium. 64% above its market capitalization is a large number to pay. But then new Hp, with Autonomy, was going down the enterprise route, getting rid of its consumer focused PC and smartphone ambitions having decided, apparently, that it could not compete. Autonomy’s unstructured search capability was and still is a good and highly strategic fit with that plan and Hp paid a giant slice of its then cash reserves (over 85% by my reckoning) which at the time stood at just over $13bn. Notwithstanding the number paid, Hp was acquiring something without which it could not compete with IBM as new Hp. Autonomy was and is still recognized as the worlds’ leading unstructured search engine.

What has changed? To justify such an extraordinarily large write off, the only conclusion that can be safely reached is that the underlying reason for Hp’s purchase no longer applies. In other words, Autonomy is no longer central to what Hp is seeking to achieve. Try a football analogy, its like Liverpool paying an extravagant £35m for Andy Carroll in January 2010 and then finding he can’t fit into your playing system under the new guy only 18 months later- Liverpool can only try to sell him at a loss. In his case 1/3 of his original price—that’s actually a really good parallel now I think about it.

 Are the claims of impropriety accurate? I’m not qualified to answer and neither is the opinionated Nick White. But I’d assume that Hp would have had access to full diligence from KPMG and Apotheker today described the diligence as “meticulous”. I’m sure it was. But it misses somewhat the point—and that is that Hp was not buying Autonomy for then Autonomy, it was buying it as Autonomy was central to new Hp’s future—an impulse buy if you like. When you really want something, do you really question its price? Think of Apotheker and the Hp board, little changed from then to now, all buying iPads, price is less of a factor than how it feels to own it

What is Autonomy now worth to Hp? It’s a safe bet that the answer is a lot less than it was even before the announcement of last Tuesday. At that point, by my calculation, they still valued it at $2.9bn ($11.7-8.8). But what damage has been caused to Hp and to its own product by these claims (and did anybody think about that factor in the PR strategy).  What do you now think of Autonomy–would you use it? Value destruction by Hp’s own hand. I’ll go back again and say that, as an IP strategy house, any structured and sensible IP diligence on Autonomy would have shouted that this was not a company that relied on patents—it had gone the sensible and credible IP strategy route of protection by trade secrecy and confidentiality (ie, not telling anyone) and that had to mean that the Autonomy core team were essential to its long term success. No deal without a long term lock in—quite simple.   

And for the Autonomy team and Brand Cambridge. This is not good news for either. In Mr Lynch’s shoes I’d be thinking about protecting my reputation.

And finally, why is Larry Ellison telling a non-story? It is odd isn’t it that Ellison, Mr Oracle, would come out and state that Autonomy had put itself up for sale and was talking to Oracle. Where is the story in that? And that it met both the company and its advisers—so what? I’d consign this to the Valley taking care of one of its own.

So what is really happening here?

In my view, it’s a smokescreen.

 Hp has a lot of bad news to get out of the way– it would not want to admit to another failed large acquisition, particularly one that took up over 85% of its then cash reserves, which at the time of the purchase Leo Apotheker correctly descibed as a “critical moment for Hp” (too true Leo, and that was 18 months ago). 

And so Hp hits out at the alleged perpetrators of a fraud and that becomes the story.Not that  Hp has just recognized another very expensive but failed transition, which was approved by all of its board. It’s quite savvy PR isn’t it—and add in pulling a favour from Larry Ellison to support the impression that everyone was duped and the story grows in credibility.

None of this should not distract attention away that another reinvention is on the way at Hp.

To back up my theory, try this link. I got directed at this site by a yoga friend, apparently in the software world the saying has been going around for a long time—Hp is where software goes to die.

Free IP Strategy Advice

It is hard to hide from the fact that Hp doesn’t quite know what it is any more or where it fits into a rapidly changed world. However, I’d suggest that against our Intangibles Tree Model™, Hp has two things that give it a start:

• A still strong and trusted brand
• Great know how and innovation capability.

What it really needs is a direction. A clear simple “we are going that way and not diverting” direction which takes these USPs and asks where can Hp now compete?

Oh, and it needs a leader. Meg Whitman’s appointment makes everyone think it’s going consumer as a key plank—or alternatively staying and extending consumer. But every time I see Nate Archibald or Serena Van Der Woodsen using an Hp laptop on Gossip Girl, why do I think “they would never be seen dead using an Hp”. Can you compete there—it’s hard to see?

And in enterprise? Hp is so far in time and maturity behind IBM that it will take a 10 year generation to get there.  But that’s where its relationship capital at least counts for something—Hp remains a trusted business brand. In fact, Apotheker’s vision from 2010 seems, in retrospect, exactly the way that Hp should go—captured well here.  Dont be too surprised to see new new Hp start to look in the same direction as the CEO it despatched.

We did think at one point that Autonomy may be a strategic asset for both a new resurgent Hp #2 to MSFT’s consumer ambitions, covering both consumer and enterprise in a world where there is still room for one more OS. Maybe this strategy might still apply, in which case there my be some real embarrasment when the time comes to write back up that Autonomy thing Hp almost killed. Quite what will be left of Autonomy after this last two weeks is hard to say.

As a PS I’d be thinking hard if I were Hp of replacing my PR agency. For the sake of a “sorry we messed up again” alternative line, the story that wasn’t the real story has likely knocked another 1 or 2 billion dollars off Autonomy’s valuation. Very sad to see a great product trashed.

Phew. I should turn this into an analysts report!

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It’s been a hectic few months and I’ve got out of the habit of blogging. There’s is much IP news around and some good informed debate (more of the former than the latter) but the Hp and Autonomy alleged accounting scandal caught my eye this week and seems worthy of debate. Noodling on the facts, here is what this appears to be about:

• Hp announces it will buy Autonomy as a supposed central plank of the future strategy put forward by Leo Apotheker
• It then disposes of Mr Apotheker, only months into his reign
• But continues to buy Autonomy for a whopping $12bn
• Apparently 15 different advisory firms involved in the transaction failed to spot the accounting “irregularity”–combined fees earned likely some £600-750m–anyone feeling uncomfortable?
• And then, somewhat clumsily, loses the entire Autonomy management team (how can that be–did they think that the company would run by itself, when so much of Autonomy’s essence was its know how and trade secrecy?)
• Then puts its own head of strategy in charge
• And ends up 6 months later taking an $8.8bn (73%) write down against an asset acquired only 14 months beforehand.

Now that all takes some thinking through.

It is probable that Mr Apotheker’s original strategy saw Autonomy as a key asset in his strategic thinking (it would be hard to justify such a price premium otherwise) and it is also possible/probable that Autonomy’s big data solutions remained central to Hp’s strategy under the consumer focused Meg Whitman. It’s also possible/probable that withdrawing from the acquisition after Mr Apotheker’s demise would have been costly in terms of cash ( break fee and paying Autonomy’s adviser fees) and reputation (don’t ever sell to Hp, they can’t be relied on to close and change strategy like they change their underpants).

But at the heart of this are three interesting questions:

• How was Autonomy valued? in the World of Motorola Mobile being worth $12bn to Google, Meraki being worth $1.2bn to Cisco and Instagram being worth $1bn to Facebook, true fundamental value cannot apply so one has, I think, to justify the  intangible  merger premium by a 1+1=4 logic.
• What was the merger premium paid?
• Was Autonomy a strategic acquisition in the first place, and if  it is no longer–does that justify the $8.8bn write down?

Mike Lynch was very impressive at the BVCA summit a few weeks ago, explaining what it takes to build a great company. I would also expect him to be a dynamic and charismatic negotiator. I’m trying to imagine the scene where he first persuades Apotheker to place a $12bn value on Autonomy, and then the scene revisted where Apotheker”s successor comes back in to say that Hp may want to change their minds. No mercy!

I’ll noodle on those three questions over the next few hours and attempt to answer them tomorrow. To this point its hard not to be more in Mike’s camp that “Hp are looking for scapegoats, and I don’t intend to be one…”.

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Thanks for the pointer to this article from the lovely Sam Funnell at ARM. Mr Olympic Sausage sounds like one of those names you come up with for your porn star name by combining the name of your first pet with your mother’s maiden name. In my case Wyn Bolton (or, with the right emphasis, Wyn,after the great Wyn “the Leap” Davies) Bolt-on. Made me laugh anyway.

But no this Mr Olympic Sausage is “a butcher in a town hosting sailing events who had to remove a sign showing the Olympic rings made from sausages.”

Now I guess I would understand if I was Coca-Cola that if I’d paid close on $1bn to sponsor the Games over 4 years, I’d be justifiably miffed if Pepsi ads were then shown all over the main stadium and David Beckham dropped his shorts, a la Niklas Bendtner, and they were advertising the other cola.

But to apply this to Mr Olympic Sausage is just silly. We all know that the Games are now so huge that sponsors need to be attracted so that they can be financially viable. Though whether they need to turn so large a profit and be surrounded by corporate smoothing does somewhat offend my sense of what they are really all about.

But where Mr Olympic Sausage is concerned, what happened to common sense, what happened to that English sense of fair play and quirkiness, what happened to Boris’ wiff waff spirit? Do we have to kill all things that make life sweet and fun and are entirely within the spirit of the Games, just so that the Games’ official sausage sponsor (even if there is one) can say with certainty that they got their money’s worth.

As a former one, I smell the work of fundamentalist lawyers. This breed is precise to 28 decimal places, shows an alarming absence of common sense or commercial sense, becomes the deal rather than just writing it down, and, worse still, charges one arm and one leg for the displeasure and has no sense of fun or joy.  And can quote word for word clause 28.1.1, sub section (ii), sub clause (b) of the 130,000 word sponsorship agreement with the Olympics sausage partner which says “No person other than the Official Sausage Partner can show, demonstrate, hint at or in any way have an association with sausages, on pain of being excruciatingly killed by having to spend 2 full weeks in a locked room full of lawyers……….” Aaaaaaaaaaaaaaaaaaaaaaargh!.

Common sense is not so common. Is it?

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If for no other reason than she has taken the job, one of the most challenging in the tech world right now, whilst heavily pregnant, and has told her (inevitably) male and (disappointingly)  female doubters, that she is going to do her job and her motherhood her way.

We like this woman already. Though there is a half a sniff that she could be a strategic weapon for Google to make sure Yahoo remains in friendly hands. Like ex-Microsofter,  Stephen Elop in Nokia, it can’t harm to have friends in the right places of some of the war’s more tactical assets.  Don’t shout cynic, instead read the Art of War.

I’m liking this series.

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Slashdot reports today that Google has come up with a really smart way of avoiding all of these pesky and irritating patent fights it is in right now.

Referencing an article on All Things D, Google GC Kent Walker comments:

“While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. … Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee’s concern regarding the abuse of SEPs should encompass them as well. “

Ahem!! Read that back again and ask why that suggestion doesn’t drive a very large coach and a herd of horses (it is a herd of horses isn’t it?) through the entire patent system.

It is often said that in any patent portfolio, there will be around 5% that have real commercial value (why this makes sense to follow in later posts), and, with Mr Walker’s suggestion, of this 5% of heavy investment, it is fair that those that get really popular are deemed to be de facto Standard essential when consumers decide they really like them. You’d have to be quite desperate for that to be part of a serious set of arguments, don’t you think?

After the abuse of the Standards system (well maybe manipulation is a better word) by the 2 and 3G member-only clubs, is it fair then for one of those that has paid out most in the Smartphone wars in club membership fees to have to deem its most valuable patents as available on FRAND terms to another company who has far from played by the rules? Would it also be fair to make MSFT play by the same rules after 13 years of IP investment has put it into the position of being able to offer a total indemnity to its users and to exercise a significant strategic and competitive advantage?

Whoever may be listening to Kent Walker, don’t. He is GC of a company which has been less than honest with Android OS licensees. Suffer little Google for a bad set of consciously-taken IP decisions, in particular (a) to indemnify or not, you chose not (b) to buy Nortel or not, you chose a quirky not (c) to buy MMI without too much investigation of whether its patents were already out-licensed and on what terms.

Nice search engine, lots of revenues, wrong IP strategy, desperate submission.

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If you’re not from the UK, you may not be familiar with the weird combination of part footballer, part philosopher, part hooligan, part socialist, part nutcase, all conundrum that is Joey Barton. More on Joey in later posts, he may yet feature in this series but I’ve not yet made up my mind as to whether to like and sympathise with him or view him as an advanced Neanderthal that represents all things bad about UK society.

For the purposes of this post, here is Joey in worst form. Joey’s explanation for his assault on Sergio Aguero,  claimed on Twitter, was that his violent actions were a cynical ploy to provoke a City player to be sent off.  He insisted via Twitter that he had “not lost his head but that a team-mate suggested I should try to take one of theirs with me”.

Make your own mind up on that one. If you’re still unsure, watch Joey’s face as he knees Aguero in the back and ask whether he was keeping his head at the time or whether it was not just 100% malice.

And the relevance to Bashar Al-Assad? Well, if he ever takes to Twitter, his current actions and those to follow in the next few weeks will be explained with something along the same lines. He is going, without a doubt, so he decides to “take a few with him”.

It will not be a pleasant end, and some lucky Syrian is going to be the one that finds him cowering in some bunker, humiliated and looking a little pale. He may try the trick of one of Gaddafi’s sons and claim he’s a sheep herder.  Maybe he’ll try the “leave me alone, I’ve been a good leader” trick tried by Gaddafi himself, but all will fail and some lucky Syrian will have the privilege of bringing his cowardly and despotic reign to an end. Although he will not be around to see it, the bodies of himself and anyone associated with him will be then shown publicly until buried at sea or out in the desert.

Either way Bashar, you’re going. You have a very short window in which to retain a scrap of dignity, and maybe your life, rather than taking thousands with you. Straight choice, but you cannot win.

He is now being consigned to history. Wonder who’s next?

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Ha! Fooled you. No of course I don’t. Travel chaos today as my host for a weekend in Bergerac (he will remain nameless) got us to the airport on what he thought was time to find our FlyBe 13.15 flight sitting on the tarmac ready to leave, at 13.15. Oops.

Imagine though the joy of knowing that Ryanair was there to save me. You know, give them their dues, their one, very full flight to Dordogne has opened up the region for tons of tourists to visit this lovely part of South West France, but that’s enough of being nice. The person behind the desk was actually quite apologetic as he told us that the next flight would cost £268 each, and, here is the rub, £100 for my suitcase. He was so embarrassed that he gave us priority boarding out of sympathy. I hope I don’t get him into trouble but it actually showed that, given a touch of humanity, Ryanair could just evolve into a half decent customer experience.

Despots around the world are falling fast. Al-Assad is on his last legs and will be planning his escape route if he has any sense. Diamond is gone. Blatter has become such an embarassment to the Swiss he’s planning his retirement. Micheal o Leary, start saying goodbye. You know it’s right to go. You can start to travel..make sure you get speedy boarding, and, if using Ryanair, make sure you print out your boarding pass.

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