In my last post I discussed the ongoing litigations between Apple and Samsung, specifically in relation to  standards-essential patents.

It has now been announced that the EU Commission has launched a formal investigation into the 3G licensing practices of Samsung and the alleged contravention of the “irrevocable commitment it made to the European Telecommunications Standards Institute (ETSI).”

The Agreement on Trade Related Aspects of Intellectual Property (TRIPS) requires signatory states to ensure that their national patent legislation obliges patent rights holders to license, on fair, reasonable and non-discriminatory terms (FRAND) their standard-essential patents.

Yet Samsung has asserted a standard-essential 3G patent against Apple, and as a result the Commission is investigating to ascertain whether this is an anti-competitive practice in contravention of Article 102 EU, which prevents the distortion of the common market by an abuse of an entity in a dominant position.

A notable feature of this investigation is that it was not (apparently, or at least publicly) requested by Apple, which is the usual sequence of events in circumstances such as these: the Commission is acting entirely on its own initiative.

The instigation of this investigation demonstrates to the commercial world that the mechanisms in place to protect the consumer and to further the aims of the EU Treaties in maintaining the single Community market really do have teeth. Whether Samsung will be bitten remains to be seen, although it is hard to see how it can be avoided.

As yet, Samsung has not commented on the news, and it remains to be seen if the parties even attempted to negotiate a licence in line with the FRAND obligations.

For the telecommunication industry, lawyers, patent attorneys and policy makers alike, this will be an interesting process to watch, and one which could have significant implications for FRAND, competition law and the plethora of patent litigation that is currently battering the telecommunications market.

Now that the holiday season is well and truly behind us and we are all making (and often, breaking) our usual resolutions to eat less, drink less, exercise more, and generally be better human beings, we are presented with an opportunity to glance ahead into the coming year and think about what we expect to see in 2012 (if, like me, you do not believe the Apocalypse rumours).

2011 will be the year that remembers patent wars in the telecommunications industry as being rife, with patents viewed globally as an increasingly large and unnecessary barrier to innovation and commercial competition. But we expect that this pattern will continue throughout 2012, especially with the commercialisation of new technologies, such as the rolling out of 4G, which is likely to bring a whole new wave of litigation with a new cast of actors (and probably some of the old cast too).

New Technologies

Apart from the implementation of 4G, what else can we expect to see in 2012?

IBM recently predicted that by 2017, passwords as a primary means of access will be rendered obsolete:

“Devices to authenticate your identity by biometric means will become commonplace in the next five years and passwords will become a thing of the past.”

IBM also predicts that the use of mind control (to operate machinery, as opposed to main-streaming Jedi Mind Tricks) will also begin to soar over the next 5 years. If this is the case, one can expect players in these technological fields to be producing and possibly enforcing vast amounts of mind-control-related IP during 2012.

Of course, no Predictions-About-the-Coming-Year post would be complete without a mention of the Olympics, which is coming to London this summer. Not surprisingly, innovation and IP even got a mention from BBC’s Phil Fearnley, general manager at BBC Future Media. In The Guardian, Phil has promised that

“Viewers will see innovations in the way IP and broadcast streams and the way data and video will interact.”

and that

“The Olympic Games in London in 2012 will be remembered as the first truly digital Olympics.”

We will also see the rise (or demise) of the ultrabook this year, with Intel pushing hard to revolutionise the laptop and PC market in the age of the tablet. We expect some interesting, game-changing technologies to be revealed along the way.

Policy

Having seen patent ‘reform’ in the US in the shape of the America Invents Act, and the Hargreaves Review in the UK (a process mainly focusing on copyright which is still on-going), one can expect that the piles and piles of patent litigation suits between the likes of Google, Oracle, Samsung, HTC and Apple, to name but a few, will only increase the pressure on policy makers to step-up the pace of review of patent laws, on both sides of the Atlantic.

On this side of the Atlantic, much closer to home – at least it is if you don’t listen to President Sarkozy – is the potentially imminent birth of the EU patent. The Legal Affairs Committee in December gave its approval for the “EU Patent Package”, which includes a unitary patent, a new language regime and a unified patent court. Despite the teething problems which often follow any newly created judicial process, this activity is likely to keep IP firmly in the main stream press during 2012.

Litigation and the Focus on IP

Of course, the Samsung and Apple litigation is set to continue well into 2012, as will the Android-related litigation between HTC, Samsung et al., which is likely to keep the attention of the mainstream press fixed firmly on patents for some time.

For me, one of the most interesting cases to watch in 2012, which has spilled over from 2011, is  Oracle v Google. The outcome of this litigation could see Google’s Android partners having to pay significant licensing fees to Oracle, or Google may be forced to re-write the Android platform to avoid Java patents. Either outcome would cause a significant stir for Google and manufacturers of Android phones and tablets, not to mention the world of IP. This is of course assuming that Oracle is victorious, which may well not be the case.

2012′s Winners and Losers

2011 was a tough year for some of the biggest names. We expect the likes of Apple and Google to continue on their trajectory for world domination without too many snags along the way, but Nokia and RIM are examples of companies to keep a concerned eye on this year.

• Can Nokia’s Symbian continue to contribute to the balance sheet?

• Will 2012 see RIM finally RIP?

• And how will Microsoft prevail in the mobile market with Windows 8 when it is up against the ever-growing Android and the so-far-unstoppable iOS?

It is true to say that the most reliable prediction for 2012 is that it is going to be a very interesting year for us here at Tangible IP…

As IP professionals, we are ever hopeful that the commercial world will start to notice on a much broader scale the value and importance of IP to business. During 2012, we will keep on promoting the value of IP strategies and helping our clients realise the maximum value possible from their IP and other intangible assets, whilst patiently waiting for the proverbial light to come on above the opportunities most are missing out on by over-looking their IP.

We hope that the continuing and increasing attention of the main stream press on patents and infringement litigation in the telecommunications industry will eventually serve as a catalyst for IP and turn the attention it receives at board level from being not just a cause for concern, but a valuable commercial asset.

But for now, we wish you all a very happy and prosperous New Year. Let the journey begin.

Due to the fact that the majority of bidders involved in this auction have not yet released official statements (perhaps because of next week’s approval hearing), this report may lack the juicy, blow-by-blow account of the auction that many of you are looking for, so if anyone fancies sending me a copy of the recording of the auction so that I can fill in any gaps, please feel free to do so…

Monday 27 June

It is believed that Intel opened the bidding in response to Google’s stalking horse bid of $929 million, with a $1.5 billion bid at around 9am on Monday.

The RPX-led consortium, which included Huawei, dropped out after only the first round, and apparently tried (unsuccessfully) to partner up with another bidder.

Tuesday 28 June

By the end of the second day, the Ercisson-RIM-Microsoft-Sony-EMC consortium stopped bidding and also began looking to partner with another bidder.

Apple joined the consortium as the auction headed into its third day. There are rumours that this consortium of six, Rockstar Bidco, only formed after the bidding exceeded $3 billion, implying that Apple had set its maximum bid at or just below $3 billion. This seems to be rather a modest figure for a company with $66 billion in cash reserves, although perhaps this reflects the maximum value of the portfolio to Apple.

According to sources of the Guardian, the bidding continued in “fast and furious $100 million allotments until they got to $3 billion, at which point Google asked for permission to bid more…”

Wednesday 29 June

By Wednesday, Intel had dropped out of the bidding, presumably because the bids had far exceeded the $3 billion mark.

Google and Apple both began heated negotiations over the next 24 hours in an attempt to convince Intel to join their respective teams. Rather unsurprisingly (and unfortunately for Intel), Intel chose Google.

This left the bidding war a virtually two-sided affair: Rockstar Bidco against Ranger Inc. (the entity through which Google made its initial stalking horse bid).

The Guardian has written a great article detailing the weird and wonderful bidding techniques employed by Google, which included figures relating to Pi, Brun’s constant, and The Meissel-Mertens constant (amongst others). This quirky technique has been described as either very strategic, an attempt by Google to show off its mathematical prowess, or simply an indication that Google was bored. (Those of you with some basic knowledge of mathematics may have realised that this does not quite fit in with reports that the bidding increased by $100 billion increments, but until more official documents are released it is difficult to verify the facts).

Nevertheless, the reason for this bidding technique is, as they say, academic.

Google bid through to $4 billion but then suddenly stopped. Sources apparently told Reuters that Google “…had set a ceiling of around $4 billion for the patents, despite having $36.7 billion in cash at the end of its last financial quarter. Intel, its partner in the bid, had about $4 billion in cash.”

If Google had set itself a limit of $4 billion, it is surprising that it did not continue bidding once it had joined forces with Intel, especially given that the portfolio in the end sold for ‘only’ $4.5 billion. To be fair to Google and Intel, the Rockstar consortium came to the bidding table with some $100 billion in cash reserves, but I can’t help thinking that Google missed out on a huge opportunity here, for the sake of half a billion dollars (which, let’s face it, is pocket change for Google).

In April, Google’s General Counsel, Kent Walker, blogged about using the Nortel portfolio to “not only create a disincentive for others to sue Google, but also help us, our partners and the open source community—which is integrally involved in projects like Android and Chrome—continue to innovate.”

Google is yet to release a statement, but has been reported as referring to the outcome of the auction as ‘disappointing’.

Either Google has missed out terribly by failing to walk away with at least a share of this portfolio, or it has something very strategic in mind to navigate its way through the mobile industry, which is now a patent minefield for Google and its Android.

Thursday 30 June

The bidding came to an end after 20 rounds and four days, with Rockstar Bidco’s bid of $4.5 billion closing the proceedings.

What’s next?

It has been reported since the auction that Google will keep looking for patents to add to its artillery to enable it to ward off patent infringement suits in the smartphone arena, and to use as bargaining tools in on-going litigation (Google is said to be involved in 45 such lawsuits at the moment), but how easy this will be to do compared with the opportunity Nortel’s bankruptcy presented remains to be seen.

There is doubt amongst the technological and IP world that a portfolio of this quality will be so readily available again, at least not for a very long time, especially given that so many of the Nortel patents related to ETSI standards and core LTE technologies.

So for the time being, it would seem that Google’s weakness in the mobile technology field is set to continue: it has some 700 patents in its mobile portfolio, but few relating to the future technologies that make handsets more powerful and mobile networks faster.

For Rockstar Bidco, however, things have just got very interesting. In an article by the FT, Kasim Alfalahi, chief intellectual property officer at Ericsson, said: “The Nortel patent portfolio reflects the heritage of more than 100 years of its R&D activities and includes some essential patents in telecommunications and other industries. We believe the consortium is in the best position to utilise the patents in a manner that will be favourable to the industry.”

Exactly how they intend to use this portfolio we are still to find out. We do not yet know how the deal has been structured, who owns what and how, and what exactly this will mean for Google, Qualcomm, and other large players in the mobile and wireless industries.

What all this means for the winners, the losers, and those who failed to take part at all will be revealed in our next post…

The auction kicked off on Monday 27 June, and only came to an end on Thursday 30 June, according to the court documents.

The news brings with it the revelation that Rockstar Bidco, whose identity has been the subject of much debate over the past week, is in fact a consortium led by Apple, which includes RIM, Sony, Ericsson, EMC and Microsoft.

This is now old news (it’s been circulating the internet since the early hours). What we really want to know is how this agreement has been structured, what the implications are for both the winners and the losers, and why EMC is involved at all. (Although please don’t take this list of questions to be exhaustive – we can see ourselves blogging about this for at least another week to come!)

The Asset Sale Agreement, dated 30 June 2011,  was signed between the Nortel group of companies and the purchaser of the assets, Rockstar Bidco LP, and is subject to approval by the Ontario Superior Court of Justice on 11 July.

Apple Inc. and Rockstar Bidco have together paid Nortel a good faith deposit of $54 million.

I think the news that has shocked the most is that  Google seems to have walked away empty handed, having opened the auction with the stalking horse bid of $929 million.

It is fair to say that the majority of avid followers of this process expected Google to acquire at least some of the patents to help ward off litigation over its Android OS, which is used in handsets manufactured by both Motorola and Samsung.

But what about the motivations behind the other companies who have joined this consortium? Andrew wrote a great piece on this earlier in the week, so I will keep this brief. It is not much of a surprise to us that Microsoft were behind Rockstar Bidco – we blogged our speculative thoughts on this earlier in the week. The motivation? Easy – to prevent others from winning,  perhaps also with a view to creating cross-licensing revenue.

Again, not a surprise, although we think that their motivation to lead the Rockstar Bidco consortium was to allow them to win without paying too high a premium.

This is a smart move by RIM, who have been in the news recently due to their ‘challenging start‘ to the 2012 fiscal year. What we are surprised about here at Tangible IP is that they were willing to pay some $770 million for their share in Nortel’s patent portfolio. To commit such a large share of their cash reserves (reports state that RIM’s cash reserve is around $3billion) must surely indicate that they expect a very fast ROI, presumably through cross-licensing opportunities.

But what about the other members of the consortium? Both Sony and EMC are harder to second guess. And as I am at risk of blogging continuously throughout today and the entire weekend, I will return to that question later on.

After days of patiently waiting for updates from the Nortel Auction, news has just come in that Nortel has sold its 6000 strong patent portfolio for $4.5 billion.

The portfolio has been sold to six of the bidders: Apple, Microsoft, RIM, EMC, Ericsson and Sony, according to another source, but details of the terms of the sale have not yet been disclosed.

The sale is still subject to court approval, and the many objections raised before the auction was held (and any made subsequently) are still to be heard on 11 July by the court in Delaware, but it looks as if Google was the biggest loser.

We expected Google to take something from this auction, especially as the patents were to be used defensively in the wake of the Android-related suits, but it seems that the consortium of six won through.

We will write in more detail on this later, but in the mean time, for all those who are still wondering who Rockstar Bidco is, we can now reveal that the entity was apparently the name behind which this winning consortium was hiding…

More  later, including on how the portfolio will be divided, who paid what (it’s rumoured that RIM paid $770 million alone) and how this will affect the bidders going forward.

As to how so much secrecy has been permitted, we do not know, but we doubt whether the Department of Justice (DoJ) would need to give anti-trust approval for bids made by trolls. It seems that RPX did not require DoJ approval to qualify as a bidder, so why would Rockstar Bidco?

In fact, the Tangible IP team has been wondering why anti-trust approval has been required at all during this process, as usually the DoJ doesn’t get involved with patent sales.

It is possible that the anti-trust reviews could have been requested by Nortel’s bankruptcy attorney to avoid post-auction complications, or, more likely, that the DoJ was concerned that the auction would lead to possible unfair monopolies within the mobile industry, but the exact reasons remain unconfirmed. It can, however, be inferred from other articles (for instance this one by IAM) that the DoJ was the instigator.

This could be to do with either:

1. The competitive relevance of the Nortel portfolio to such a significant proportion of the market, both in terms of the patent claims and the potential effect on Standards, or;

2. As a precaution against the potential for the larger players (Google, Apple, Intel et al) to rig the bidding, a practice strictly forbidden by the Sherman Act of 1890**

** A summary on the FTC’s anti-trust website of this prohibition in the Sherman Act states that “…certain acts are considered so harmful to competition that they are almost always illegal. These include plain arrangements among competing individuals or businesses to fix prices, divide markets, or rig bids.”

Those who contravene this rule can be subject to criminal prosecution by the DoJ: “Criminal prosecutions are typically limited to intentional and clear violations such as when competitors fix prices or rig bids.”

The guidance on the FTC website explains that “Bid rigging can take many forms, but one frequent form is when competitors agree in advance which firm will win the bid. For instance, competitors may agree to take turns being the low bidder, or sit out of a bidding round, or provide unacceptable bids to cover up a bid-rigging scheme. Other bid-rigging agreements involve subcontracting part of the main contract to the losing bidders, or forming a joint venture to submit a single bid.”

One does not need to stretch the imagination too far to conceive of scenarios where the bidders in this auction could be tempted to rig the bidding in return for favourable licensing terms post-sale, so perhaps this has been the DoJ’s motivation. Although if this is the case, surely all bids would need to be reviewed by the anti-trust regulators, which has not been the case.

Whatever the motivation, it remains doubtful that the DoJ would review bids from trolls in an anti-competitive light, in which case, Rockstar Bidco is not a troll. It would also seem unlikely that the department is reviewing the bids to prevent rigging, as not all bids have been reviewed. So through the process of elimination, we are left with option number 1 above, which would imply that Rockstar Bidco has access to a portfolio significant enough to warrant a pre-auction, anti-trust investigation. But whose portfolio does Rockstar Bidco have access to?

There have been reports that Microsoft is behind this unidentifiable company, and we wonder also whether Qualcomm could have something to do with it, but it look as if we may not be able to find any more information about this increasingly infamous Rockstar until after the approval hearing on 11 July.

In the mean time, we patiently wait for news from the auction, which is likely now to be into its second day in NYC.

More to come soon…

Since the news broke we have been trying to find out as much as we can about Rockstar Bidco LP, but have unfortunately managed to turn up very little information.

The rumours are that Rockstar Bidco LP could be connected to Rockstar Games, although we can’t quite fathom why Rockstar Games would be involved. These rumours continue to circulate, however, as calls to Rockstar Games have apparently provided no clarification whatsoever. Bloomberg reports here.

With help from our trusty spies in the US we have been able to uncover only one morsel of information about Rockstar Bidco LP. It appears that Delaware has two Rockstar Bidcos, both of which were created on 7 June 2011. Beyond this, we know nothing. Rockstar Bidco could not be holding its cards any closer to its chest.

How the antitrust regulator is permitted to maintain this ambiguity remains unclear, especially when the rules of the auction itself promote complete transparency regarding the identities of the bidders and their sponsors. All we can assume is that the authorities know a hell of a lot more than the rest of us about Rockstar’s origins and relations.

And what with the incorporation of these two Rockstars being so recent, there is very little hope of finding a paper trail that will lead us to the answers. If you find one, please do let us know.

In the mean time, all we can do is speculate. The Tangible IP team is assuming for now that Rockstar Bidco has been set up by Intellectual Ventures, or another troll.

For now, we will just have to wait patiently to find out if we’re right.

Coincidentally, there have been a number of objections made to the court in Delaware regarding the procedural rules of the auction and the terms upon which a sale will be made. These objections have come from the likes of Motorola, Oracle, Microsoft, AT&T and EADS, and relate to the definitions and permissible transfers of existing licenses. (The original terms of the Sale Agreement state that the patents would be sold subject to all “Commercial Licenses, certain Intercompany Licenses, and all licenses under known Outbound License Agreements and Cross-License Agreements”. It was also agreed that “Unknown Licenses” would not be transferred)

But I digress…the purpose of this post is not to analyse and dissect the definitions of these licenses, nor the implications of these terms; it suffices to say that the majority of the objections raised relate in some way to the transfer of licenses. (AT&T’s objection concerned patents involved with Industry Standards)

In this post we reveal what we know about the auction’s rules and procedures.

Unfortunately, there is not a great deal of information online, but we have fastidiously ploughed through the court documents and can now reveal the following:

• The auction will be held in private at the New York offices of Nortel’s legal advisors, but will be transcribed or recorded on video. We wish it was being shown live and the rights being sold but they seemingly chickened out of this
• Only the ‘purchaser’ (Ranger Inc. – a wholly owned subsidiary of Google) and Qualified Bidders will be entitled to bid
• The portfolio may be sold in a single sale to a single purchaser, or in parts to several purchasers. This probably reflects that like most portfolios the Nortel portfolio will have some beautiful gems, specifically those patents declared essential to Standards (one of which would be worth an awful lot to a player who had little IPR, and probably even more to a troll like IV) and a lot of almost worthless patents
• Companies must bid in excess of $929million under the rules approved by the Court, to top Google’s stalking horse bid. We have not been able to determine how this ties into the ability to bid for part—if I bid $500m for a part, I don’t top the stalking horse bid but the total sale may be more if others bid for part. We can only assume that in this instance a bid for part would be approved by the Court on a pro rata basis
• Each incremental bid at Auction shall provide net value to the estate of at least $5,000,000 over the starting or leading Bid, although this figure is subject to modification by the sellers
• Full disclosure is required regarding the identity of the bidders (and any other entities involved with the bid, including entities sponsoring, financing, participating in or benefiting from the bid, including benefits accrued through licensing) and all material terms of the bids will be disclosed throughout the auction. Why this is important is not really clear: we suppose that the sellers want to ascertain with whom they are truly dealing but it would seem more important just to maximise the sale value. How many auctions bother with knowing who is bidding? Whether this information can be provided confidentially to the seller and therefore not be disclosed outside of the bid process is unknown
• A round of bidding will conclude after each participating Qualified Bidder has had the opportunity to submit a Subsequent Bid with full knowledge of the Leading Bid. Like very high stakes poker, this should ensure optimum returns
• Qualified Bidders and their equity holders have to confirm that they will not and have not colluded with regards to the bidding and/or the transaction. How this will work in practice we have not quite ascertained. Colluded is an interesting term; RPX, we’d suggest, would have to inform its co-ordinated efforts with its members, though how an RPX member like Intel bids alone and via RPX without somehow colluding is intriguing to think about. Think also about this scenario: I’m RIM and most likely unable to financially outmuscle say Apple or Google—could I decide to call Apple and offer to stand aside in return for a license if Apple succeeds? Is this collusion?

Once the bidding has concluded, Nortel and their advisors will select the highest “or otherwise best offer or offers” to determine which Qualified Bidder(s) is/are successful.

Watch this space. Tomorrow we will be discussing the runners and riders, and will make our predictions as to who the successful Qualified Bidder(s) might be….

An article in the World Intellectual Property Organisation’s December 2010 newsletter here shows the massive rise in both domestic Chinese patent applications as well as patent applications filed by foreign companies in China. WIPO’s patent statistics for 2009 show that Chinese companies filed 7,906 PCT applications (5.1% of the total applications filed) and was in fifth place behind the United States, Japan, Germany and South Korea. Chinese telecommunications company Huawei was beaten into second place with 1,847 application. It remains to be seen how many of these patents will in the end be granted. We’ve taken a non-comprehensive look at some of the Chinese-originated patent applications entering the European Patent Office and have noted that the descriptions tend to be much shorter than those originating from, for example the United States or Europe. This suggest that there may be difficulties in finding fall-back positions if close prior art is found. Unlike in the United States, the European Patent Convention offers no opportunity to file continuation applications to try and capture new subject matter in the application.

The 2009 WIPO patent statistics also show the massive number of entries from PCT applications into the Chinese Patent Office in 2008 (57,641) which is in third place behind the European Patent Office and the US PTO. This clearly shows a trend for foreign applicants to file in China.

And what about enforcement? Increasingly Chinese companies are using the patent enforcement system against other Chinese companies. It’s not just foreign companies trying to protect their rights. However as my friend Paul Jones points out in a recent newsletter, the Chinese court system can be harder to navigate than in some countries. The level of evidence that needs to be provided when filing an infringement suit is substantially higher than that required in the United States or Europe. This blogger has already experienced the inability to submit further evidence when he recently took over a trademark case. The evidence originally filed would have been sufficient to at least start the case in Europe, but it was not sufficient for the Chinese court. Attempts to submit further evidence was rejected as being too late and as Paul pointed out in a newsletter, it isn’t only European companies that fail to product in China.

On the other hand – with sufficient evidence and the right facts – it is possible to avoid the fate of some German companies who lament in this BBC report that they could not defend their apparent rights. We’ve seen so often the complaint that Chinese companies copy technology. But that’s the purpose of the IP system – if you want to stop copies, then you have to put your IP in place at the right time. It’s no good complaining after the copying has taken place.

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Patent, China

I spent a lot of time talking to others in the conference about their work in nanotechnology and commercialising their efforts. A lot of the posters in the hall outlined some very basic research which is probably years from commercialisation, but there was also a fair share of small start-up companies (often from universities) who were looking for business (and often investment). The understanding of intellectual property issues varied tremendously. One conference speaker from a company based in Santander highlighted the importance of good patent protection, not only in Spain but also in other countries. She emphasised the need to get good IP advice from the very beginning.

Another speaker (who shall remain nameless) talked about the success his company was having but failed to deal with any questions about how the technology was protected. His company has no patents (at least none published on the ESPACENET database) and some of the technology seemed fairly easy to reverse engineer (but I’m only a mere Physicist and not a real Nanotechnologist). In that case one wonders how the company is protecting its long term value in intellectual assets

Walking around the exhibition and poster wall was fascinating. Some of the people I talked to really understood the value of the intellectual property developed. Others noted that they thought a patent had been filed or that they’d filed a description with a notary to protect their ideas. There seemed to be little appreciation at the conference of the need to identify and review the intellectual property developed and the most appropriate form of protection.

A patent application is only of value if it really protects the business model of the company. Filing a patent on a process so that competitors receive full details of the process (as one company has clearly done) without thinking through and protecting use cases, licensing programmes and business opportunities is often a waste of money and resources. Traditionally some companies had filed details of their ideas with a local notary and relied on these deposits to “prove” that they have prior rights to an invention. That may have been a good strategy when markets are local – but in a global business strategy it has little role to play. Prior use of an idea in Spain does not protect a company from an alleged patent infringement in the United States (or even in France). And it is also not a substitute for a functioning trade secrets policy in which a company polices its disclosure of confidential information.

One research institute revealed that they had been somewhat surprised to find that a former student had put software developed at the institute into the Internet, apparently without permission. They had been looking to commercialise some of the work and if the software continued to be available free of charge there might be little incentive for anyone to take a licence.

There were a few bright spots. Rob met an old acquaintance from German-based seed company Technostart who is involved in the EU’s ProNano project which aims to take thirty ideas through to commercialisation. She’s well aware of the need to ensure that a company’s intellectual property is well-developed. I was also there in my role as Co-Chair of the Licensing Executives Society International’s (LESI) Electronics, IT and Telecommunications committee. LESI runs a number of educations programmes on the bsuiness of intellectual property which are suitable for smaller companies. Together with his friends Jose Miguel Lissen, a patent litigator at Spanish IP firm Gómez-Acebo & Pombo, and Dario Santander from Bardehle’s Barcelona’s office, we’re looking at what value membership of LESI could offer nanotech entrepreneurs in the commercialisation of intellectual property.