The Value of Intellectual Capital Becomes Patently Obvious

To some degree, much of the recent litigation over intellectual property is about catching up. As the value of intellectual capital becomes increasingly evident, enterprises and their investors are scrambling to identify, measure, manage and protect the value they have created, sometimes unknowingly.

There is bound to be some uncertainty over who owns what and, subsequently, who owes what to whom. And the implications for future value as well as the strategic options it may provide or limit, become ever more significant.

That it has taken so long for the intangible to become tangible, in a monetary sense, is surprising. That any enterprise would ignore that development in the future, would be irresponsible. JL

Lex comments in the Financial Times:

As tech companies mature, they need to profit from their earlier innovation. Unprotected IP is money on the table.
Not every Silicon Valley company with rich intellectual property bothers to defend it. Altruistic, perhaps, but it is also a recipe for an activist attack. Unprotected IP is money on the table.
Qualcomm, the mobile chipmaker, faced activist questions last year. Jana Partners argued that the company should consider spinning off its higher-margin licensing division. But the Jana idea, which was ultimately rejected, only came about because Qualcomm is already assertive, supplying the fruits of its research and development to other companies, and demanding fat royalties in return. Oracle, which last week lost a court battle with Google, also took an aggressive tack, accusing the search giant of violating its copyright to develop the Android operating system. Oracle's defeat was applauded by software geeks prizing openness. But Oracle's shareholders could have been $9bn better off. 
Google itself is not known for its proactivity. It has sued only twice over patents — BT in 2013 and SimpleAir this week — but both were retaliatory. By contrast, since 2010 Microsoft has sued 13 times over patents and brought 191 copyright cases, according to data from Lex Machina. Google can point to its relative youth, but Intel also stays clear of courts and licensing despite being almost half a century old. 
There may be good reasons for inaction, beyond friendliness or indolence. Companies can be reluctant to sue their own customers, for example. But spinning off intellectual property into a separate company can work in some instances. The entities so created would be freer to monetise the technology — licensing it and suing infringers. As tech companies mature, they need to profit from their earlier innovation. Nortel Networks spun off its patents into a new vehicle; unfortunately only after it entered bankruptcy. AOL, under fire from activists, sold a patent portfolio to Microsoft in 2012. Less challenged companies might be forced to look at similar structures in future.