Jay Walker sits with Jon Ellenthal as he listens to his introduction as keynote speaker at the 2014 IP Dealmakers Forum.
On Thursday, November 6, 2014, Jay Waker, the Founder of Priceline.com, gave what can only be described as an inspiration keynote address at the 2014 IP Dealmakers Forum in New York City.
Speaking without notes, Walker was in rare form. This is the presentation that all Congressional Staffers and every Member of Congress needs to hear. Walker spoke about everything from job creation to the need to allow innovators to benefit from the fruits of their labors. The common thread throughout his speech was simple— attracting more customers leads to job creation, the way you attract more customers is to solve problems in innovative ways, and then you patent those solutions, thereby creating a competitive advantage.
“If you are good at solving problems you can have a lot of customers,” Walker explained as he started his address. You can have a billion customers if you solve a problem in the modern world that a lot of people have, her told a packed audience of nearly 200 attendees, with more in the overflow room where his address was being broadcast internally. He then succinctly explained: “How do we solve problems: Inventors.”
Lighting is one of the most energy consuming technologies in use in our world. During 2012, about 12 percent of total U.S. electricity consumption was used for lighting; estimates of global energy use for lighting reach as high as 25 percent of global electricity consumption. Incandescent lighting, the first major form of electrical lighting, revolutionized the world by increasing the number of hours in which a person could be productive every day. Many decades later, fluorescents and halogen bulbs would produce some improvements in energy efficiency and service life.
Right now, though, we’re starting to reap the benefits of an incredible revolution in electrical lighting. Any improvement to lighting technologies pales in comparison to the possibilities of light-emitting diodes, or LEDs. Incandescents, halogens and fluorescents spend energy generating either heat or gaseous discharge in addition to light. Currently, incandescent bulbs produce about 16 lumens per watt and fluorescents product about 70 lumens per watt. LEDs can produce about 300 lumens per watt, and efficiency improvements are still being pursued. An LED can also achieve a service life of 100,000 hours, compared to 1,000 for incandescents and 10,000 for fluorescents.
Jaime Siegel is Executive Vice President of of Licensing and Litigation at Acacia Research. He joined Acacia in 2013, coming to the company after serving as Vice President and Senior IP Counsel for Sony Corporation. Siegel has extensive experience in international IP monetization, enforcement and strategic acquisitions, and he agreed to chat with me on the record. Our interview took place on Thursday, October 23, 2014.
Siegel will be attending the IP Dealmakers Forum in New York City from November 6-7, 2014. He will also be on a panel on Friday morning titled Evaluating Public Market IP Investment Opportunities, which will discuss how investors can measure market value and performance of public IP companies, as well as exploring the various business models and strategies currently seen in the marketplace.
My conversation with Siegel was for the purpose of discussing these topics. As you will read below, while our discussion starts there it became a far ranging discussion of the issues facing the industry more globally. If there is a theme that shines through from our discussion it is about the undeniable reality that early stage investors always want to see patents before investing.
Image by Mark Avino, National Air and Space Museum, Smithsonian Institution.
The Smithsonian’s National Air and Space Museum will host an Innovation Festival Nov. 1 and 2, a collaboration between the Smithsonian and the U.S. Patent and Trademark Office. The festival will highlight accomplishments of American inventors and the spirit of innovation. It will feature displays, talks, performances and craft projects for children and adults.
This event is part of a five-year collaboration between the Smithsonian and USPTO to develop programs and exhibitions showcasing American innovation; USPTO will provide annual funding for public programs and exhibitions. Upcoming joint efforts will include a major new intellectual property exhibition at the National Museum of American History and an innovation family festival at the Smithsonian American Art Museum in spring 2015.
A recently published survey by The Atlantic asked a panel of 50 Silicon Valley insiders a variety of questions ranging from what is the most exciting tech start-up at the moment to which tech company is most overvalued. One question in particular was quite intriguing: What is the biggest barrier to innovation in the United States? You might be surprised by the answer.
According to this poll the biggest barriers to innovation in the United States are, in order:
Government regulation/bureaucracy 20%
Immigration policies 16%
Talent shortage 10%
Lack of diversity among tech executives 10%
The need for patent reform 8%
Lack of investment 6%
This survey shows what those in the industry have long known — patent trolls and the need for patent reform are NOT the biggest problems facing the high tech industry in the United States. In fact, 92% of respondents feel that there are other things that are more concerning and a bigger barrier to innovation. But how can this be? The public has been consistently fed the line that patents stifle innovation. How can something that stifles innovation not be the biggest concern, particularly when so many of the tech giants from Silicon Valley have for years blamed the patent system for all their woes? The simple answer is that patents do NOT stifle innovation, but rather patents foster innovation. Those who are intimately familiar with the industry know patents promote innovation regardless of the lies promoted to advance patent reform, vilify innovators and lay the blame for everything at the feet of patent trolls. See also Promoting Innovation: The Economics of Incentives.
How many patent applications has your company filed today?
Facebook filed at least one patent application today, Oracle filed about 3, Google filed about 5, Microsoft and Apple filed more than 8 each, IBM filed nearly 30 patent applications just today. These are the recent averages per workday anyways. Currently Facebook has more than 450 pending applications, Google has about 3500, Oracle has 3700, Apple has 7000, and Microsoft has 30,000 pending applications. I picked these names to come up with the averages because these names have software heavy portfolios, the type of patents that have been feeling some pressure from both the anti-patent circles and from the Supreme Court – as has been amply covered by IPWatchdog.
If you are a typical new economy small tech company with software and internet centric technology or products, the number of patent applications your company filed today is probably zero. Of course filing and prosecuting patent applications is not cheap and that’s part of the explanation. However it is worth noting that most of the successful companies with software-heavy products, including those in the list above, have been filing patent applications from their very early days. An excellent recent article at IPWatchdog revealed that even an overtly anti-patent company such as Twitter has been indeed filing patent applications from its very early days and have been accumulating a large portfolio through further acquisitions. The fact is that patent protection is a hallmark of a successful innovative business, whether the product is software or not. So, it is startling to see the difference in attitude of the small innovators and the already successful large innovators when it comes to protecting their inventions.
One of the real problems with the debate over patent litigation abuse is that it hasn’t focused on litigation abuse at all. Instead, the debate has focused on attempts to characterize patent owners with pejorative labels, such as calling anyone who has the audacity to seek to enforce their rights a “patent troll.” Unfortunately, the term “patent troll” has evolved to mean “anyone who sues me alleging patent infringement.” This has lead the media, the public and Members of Congress to incorrectly believe that there is a “patent troll problem,” which has influenced decision-makers all the way from Capitol Hill to the United States Supreme Court, who increasingly seems to be deciding patent cases with one eye firmly on what is a completely non-existent problem.
You have probably heard the narrative start something like this: there is an explosion of patent litigation. The objective reality, however, is that there has not been an explosion of patent litigation. The Government Accountability Office, after an exhaustive review of patent litigation, concluded that there was no patent litigation crisis. The same GAO report also found that 80% of the patent lawsuits filed are brought by operating companies suing other operating companies. Thus, those who profess there to be rampant problems associated with patent trolls and non-practicing entities suing for patent infringement are simply telling a tale that the factual data doesn’t support.
More recently Lex Machina has come forward with some eye opening statistics as well. A recent report from Lex Machina concludes: “Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.” Indeed, if you dive deeper into the 2013 and 2014 statistics you see that through the first nine months of 2013 there were 4,548 patent infringement lawsuits filed, but during the first nine months of 2014 there were only 3,887 patent infringement lawsuits filed, which represents a 15% reduction in patent litigation in 2014 compared with 2013. Furthermore, in 7 of the 9 months during 2014 there have been fewer patent infringement lawsuits filed during 2014 than during 2013. The statistics and independent GAO report just do not support a narrative that proclaims there to be a run away problem with patent litigation run amok.
A famous song entitled When You Believe by Mariah Carey and Whitney Houston is about believing in yourself and not losing hope. When you are working on a new idea and blazing a new trail, your self-belief and your passion drive you forward, and inspire you and others around you.
Passion is required, but passion alone is not enough. True passion will make you get up early in the morning, stay up late at night, or work for free. However, in addition to pursuing the ideas that you are passionate about, it’s equally important to take steps to protect your ideas. In a recent post, Doesn’t #NFC Stand for National Football Conference?, I wrote about our early entry into mobile payments. In that article I shared that, “In addition to taking action, risks and being customer focused, we also invested heavily in IP.”
Investing in IP is especially valuable when you are early in a market. It’s a mixed blessing though. On the one hand, it gives one an opportunity to file patents with broad claims, which is great for those who recognize the value in that strategy. For example, one of our early investors and board members was Chuck Russell who was one of the first CEO’s of Visa and reminded me of John Wayne. He was a great guy – very smart, charismatic, and honest. When I gave him a presentation on my company, which included one slide on the patents that we had filed, he asked, “Young lady have you ever heard of VHS and BETA?” I replied of course. He then went on to tell me that while VHS won the video tape war, because BETA had a patent on the technology, they were able to close their office and set up a PO box to collect monthly royalty checks. Chuck explained that I could do the same if I wanted. Based on the fact that I had filed patens in mobile payments, he made a significant investment in my company and joined our Board Of Directors.
Gene Quinn at the AIPF Annual Meeting in Washington, DC, September 29, 2014.
Today I am going to talk about what I call the patent pendulum. When Todd Van Thomme and I originally started talking about what I would talk about today I said that there would undoubtedly be something that comes up at the last minute. I even joked that I might wind up talking about how the Supreme Court actually got the Alice decision right, surprising us all and saying once and for all that software is clearly patentable. We all know it didn’t turn out that way. So the title of my presentation today is this: Dark Days Ahead: The Patent Pendulum.
As you are probably all familiar, patent law never stays the same in the same spot. It is always swinging one or another, either swinging more towards stronger patent rights and the patent owner, or away from strong patent rights and away from the owner. It has been that way throughout history.
Normally what’s happened is that we’ve seen the pendulum swing over longer periods of time, like over decades, and then it’ll move away. For example the 1952 Patent Act was premised on the fact that Congress didn’t like the way the law was developing over the preceding years and wanted more things be patentable, hence the 1952 Patent Act did away with the flash of creative genius test. So things swung back toward a more patent friendly law, at least for a while. And then in the 1970s no courts ever saw a patent that actually had valid patent claims. This famously prompted Congress to create the Federal Circuit. Under the guidance of Chief Judge Markey and Judges like Giles Sutherland Rich and Pauline Newman, who is still on the court, the pendulum swings back toward the patent owner once again.
We are at a point in time where the overwhelming sentiment is against the patent system. Rather than celebrating innovators the public, and our leaders, vilify anyone who has the audacity to seek patent protection. The simple reality is that without a strong patent system investment in innovation will cease. This truth should be self evident to anyone with half a brain, but sadly it is not. There are many truly ignorant individuals who actually believe that investment in research and development will continue even if the day an innovation reaches the market it can be copied without recourse by competitors. What a fairy tale!
As Dr. Kirstina Lybecker has explained: “Incentives are essential to innovation due to the expense of research and development activities, and the public-goods nature of the resulting knowledge.” Indeed, there is no business person in the world who would ever invest the hundreds of millions or billions of dollars necessary to bring ground-breaking innovations to market without the expectation of the competitive advantage provided by a strong patent. In the real world investors seek a reasonable return on investment given the risk, which is quite substantial in the high-tech, innovative world. To ignore this reality one must be firmly planted in fantasy and not the real world.