The technology industry may be moving to a more cooperative mode on patents, with Apple, Google and Microsoft putting their patent disputes to one side for the sale of former photography giant Kodak's patent stack.
Kodak went into Chapter 11 bankruptcy in January and got a cash infusion based largely on the value that could be realized on the auction of its patent portfolio. Kodak has a huge amount of digital imaging patents and estimates the stack's value at over $2bn at current market rates.
According to Bloomberg, two consortia had been planning to bid on the patents. Apple, as it did in the Nortel patent buy, sided with Microsoft and ex-Microsoftie Nathan Myhrvold's Intellectual Ventures with an opening bid of around $500m.
Meanwhile Google teamed up with a group of Asian smartphone vendors and patent firm RPX to offer a similarly sized rival bid and it might have been hoping to get the support of Kodak, since there's little love lost for Cupertino in the company at the moment.
Apple and Kodak have been involved in a fractious legal battle this year over the patent issue, with Kodak accusing Cupertino of trying to stall a sale, claiming ownership of ten patents in the auction. The courts sided with Kodak and now the bidding is back on and the company seeks funds.
Now, according to two sources, Apple and Google's groups have hammered out their differences and the two consortia have joined together to share costs.
"Apple and Google learned a lesson from the Nortel's auction," said Richard Ehrlickman, former vice president of Intellectual Property at IBM. "They have decided to come together in this process to reduce the cost of purchasing the Kodak patents, while meeting their business needs."
Kodak's patent stack is worth less than the company estimates because it is already widely licensed-out, Ehrlickman said, and the original $2bn estimate may have been overstated. This is bad news for Kodak, which is hoping to use the proceeds of the sale to relaunch itself as a printing and packaging manufacturer.
In the current patent climate however the patents are most valuable as a defense against litigation, spawning a huge bubble in the value of intellectual property. Unfortunately it has also fed a thriving secondary market in patent trolls charging licensing costs based less on the patent's value and more on the cost of threatened court action.
The disputed Nortel package went for $4.5bn in the end, with Apple taking on $2.6bn of that, and Google spent $12bn on Motorola - largely for the value of its patent portfolio. Meanwhile the legal costs in clearing new designs and inventions continue to climb, and start-ups are suffering for fear of being crippled with court action.
If the biggest companies are finally seeing the lunacy of trying to buy their way into an ever increasing number of patents marked at ever higher prices, then a lot of patent trolls are in trouble. Some companies, like Kodak, that have based their business plans on the IP bubble continuing, are also going to have to think again.
There will be a lot of litigation ahead, but if companies could cooperate to deal with the IP problem then they could save themselves a lot of money that could otherwise be put into research and development or shareholder's pockets. And it could free start-ups to innovate the next generation of companies without the fear of being sued into the ground. ®