Advancing the Business of Intellectual Property Globally. The Nash Bargaining Solution. DOUG KIDDER AND VINCE O BRIEN Page 1

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1 MARCH 2014 Save the Date! JOURNAL JOURNAL OF OF THE THE LICENSING LICENSING EXECUTIVES EXECUTIVES SOCIETY SOCIETY INTERNATIONAL INTERNATIONAL (USA & CANADA) MID-YEAR MEETING MARCH NEW YORK REGISTER NOW AT ANNUAL Earn CLE, CLP and CPE Credits MID-YEAR ANNUAL Advancing and MEETING Enhancing Business Development, Deals & Innovation OCTOBER 5 8 SAN FRANCISCO JOURNAL OF THE LICENSING EXECUTIVES SOCIETY INTERNATIONAL 2013 MEETINGS Advancing and Enhancing Business Volume XLIX No. 1 Development, Deals & Innovation LES NOUVELLES Advancing and Enhancing Business Development, Deals & Innovation les Nouvelles March 2014 Advancing the Business of Intellectual Property Globally The Nash Bargaining Solution DOUG KIDDER AND VINCE O BRIEN Page 1 Survey Results Confirm Growing Trend In Favor Of ADR JUDITH SCHALLNAU, COMMENTS BY RUSSELL LEVINE Page 6 Patent Technology Landscapes For Assessing Intellectual Property In Academic Environments JOE WYSE, KEN ZINDA, GREG GERHARDT, BOB GREGORY AND ERIC A. GRULKE Page 15 Venture Capital 101: Financing Mentality, Jargon, Term Sheets, and Documents LOUIS P. BERNEMAN AND CHRISTOPHER F. WRIGHT Page 25 The Exhaustion Theory Is Not Yet Exhausted: Part 3 ERIK VERBRAEKEN Page 37 Maximizing The Value Of License Agreements LOUIS P. BERNEMAN, TODD C. DAVIS, D. PATRICK O REILLEY AND MATTHEW RAYMOND Page 45 What s Happening With Semiconductor IP Deals? DAVID R. JARCZYK Page 50 Valuation Discussion Factors In Early Stage Software DWIGHT OLSON Page 53 Biomedical Patent Securitization in Taiwan MEI-HSIN WANG 59 OCTOBER 5 8, 2014 SAN FRANCISCO OCTOBER 5 8, 2014 SAN FRANCISCO OCTOBER 5 8, 2014 SAN FRANCISCO Recent U.S. Court Decisions And Developments Affecting Licensing JOHN PAUL AND BRIAN KACEDON Page 72

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3 The Nash Bargaining Solution By Doug Kidder and Vince O Brien Nash Bargaining Solution Summary In patent litigation, the ruling against the 25% Rule has led some plaintiff s experts to search for a methodology to replace it. Some of these experts are putting forward claims based on a 50/50 split of profits by claiming that it is the result of the Nash Bargaining Solution. This is not only a misreading of Nash s work; the economic community has not accepted that Nash Bargaining is a good predictor of outcomes in the real world. The 50/50 split posited by Nash requires a set of assumptions that are not true in actual negotiations. One valuable insight in Nash Bargaining is that the parties are negotiating over a surplus that is equal to the benefits achievable from cooperating minus the sum of the payoffs each side is able to get without cooperating. 1. Introduction Some patent damages experts are putting forward estimates that they claim are based on the Nobel Prize-winning work of John Nash. 1 In their telling, the Nash Bargaining Solution (NBS) applied to the hypothetical negotiation leads to a royalty rate of 50 percent on the profits of the patented product. However, this is neither an actual application of the NBS nor is it supported by the outcome of actual negotiations. 2. The applications we ve seen of the NBS (all in the context of patent litigation) are uniformly distortions of Nash s work. The NBS posits that, under idealized conditions when two parties can benefit by cooperation, they will split the surplus equally; i.e. 50/50. While plaintiff s experts have seized on the 50/50 split, they haven t been as quick to grasp what is to be split and it s not the entirety of the profits from the patented product. Under Nash Bargaining the surplus to be split is not the total benefit from the sale of the patented product, it is the total benefit from the patented product minus the total benefit each side could receive if it chose not to enter the license ( cooperate ), but pursued a different course of action. For example, if I m contemplating manufacturing a patented product that will earn me $10 and I have an unpatented product that I could manufacture that 1. In particular, see: Weinstein, R., Romig, K., Stabile, F., Taming Complex Intellectual Property Compensation Problems, TTI Vanguard Conference Taming Complexity, October 4-5, will earn me $9, then the amount to split is not $10, it is no more than $1. This understanding is crucial to applying the NBS. However, in the applications we ve seen to date, damages experts have applied a 50/50 split to some level of profits from the accused product without subtracting anything for the infringer s alternative courses of action. This is methodologically indistinguishable from the 25% Rule, which the CAFC ruled is not an acceptable methodology for calculating a reasonable royalty Even when the benefit is properly defined, the NBS doesn t work for patent damages because NBS relies on assumptions that are demonstrably false in the real world. The NBS and other solutions based on the notion that humans were entirely rational economic beings have been tested and found wanting. In Doug Kidder, OSKR, LLC, Director, Emeryville, CA, USA Vince O Brien, OSKR, LLC, Director, Emeryville, CA, USA fact, two economists were awarded the Noble Prize in Economics for developing the field of Behavioral Economics which challenged these rational solutions. 3 In particular, the assumptions underlying the NBS do not hold for the Hypothetical Negotiation described in Georgia Pacific What Is Nash Bargaining? 4. John Nash was attempting to devise a solution to a question that had been puzzling economists for decades: how do economic surpluses get divided up in the real world? Prior to Nash, the answer to this question was indeterminate. There was no economic theory that determined how much of the surplus each party to a negotiation would receive. If two parties were negotiating over $10, each side might receive 2. Uniloc USA v. Microsoft, US CAFC , -105, January 4, For a more detailed discussion of the multitude of problems with the 25% Rule, see Kidder, D., O Brien, V., Simply Wrong: The 25% Rule Examined, les Nouvelles Journal of the Licensing Executives Society, December, For example: Daniel Kahneman and Vernon Smith in Georgia-Pacific Corp., v. United States Plywood Corp., 318 F. Supp S.D.N.Y. (1970); aff d, 446 F.2d 225 (1971). March

4 Nash Bargaining Solution any amount from $0 to $10. This is still true in the real world. 5. What Nash did was to show that, if both parties to the negotiation were perfectly rational with identical and linear preferences and perfect knowledge of each other, then and only then the surplus would be split equally. While much of the focus on Nash is on the equality of the split, in our opinion, the critical observation is the amount to be split. In the next sections we discuss how NBS works and then examine some of the assumptions it requires. 2.1 How NBS Works 6. The surplus to be divided under Nash Bargaining is not simply the benefit from cooperating (entering an agreement): it is the benefit from cooperating minus the sum of the disagreement payoffs of the parties. Disagreement payoffs are also called reservation prices or threat points. The reservation price of a party is the amount that can be received by that party from pursuing a course of action other than cooperating To illustrate the surplus to be divided by NBS, we will use a hypothetical example involving a manufacturer negotiating for an exclusive license from a patent owner. For our example assume that the benefit from manufacturing the patented good amounts to $10 per unit and that the manufacturer could obtain a benefit of $8 per unit from manufacturing an alternative product. 6 Further, assume that the patent-owner had an offer to exclusively license the patent to a different manufacturer for $1 per unit. 7 Thus, the disagreement payoffs are $8 for the manufacturer and $1 for the patent-owner. The manufacturer would not agree to any license that gave it less than $8 profit per unit and the patent-holder would not agree to any license that gave it less than $1 per unit. Under NBS the surplus to be divided is the remaining $1; the $10 in benefits minus the $8 reservation price of the manufacturer minus the $1 reservation price of the patent-owner. In this way, the manufacturer and the patent-owner are negotiating over the amount that they can only receive by 5. The use of terms benefit and payoff as opposed to profit or incremental profit is intentional. The latter are accounting concepts that do not take into account the alternatives nor include a charge for the use of capital. These are important in determining the surplus that the parties would be willing to divide. 6. For the purposes of this example, assume that the quantities that would be manufactured and sold of the patented and unpatented items are identical. 7. Assume that the alternative licensor would produce a volume equal to the hypothetical manufacturer. cooperating. Nash then proposes that this $1 surplus will be split equally. For this example Nash Bargaining predicts that the manufacturer would get $8.50 per unit ($8 reservation price plus half of the $1 surplus) and the patent-holder would receive $1.50 per unit. 8. The outcome of the Nash Bargaining solution is very sensitive to the quantification of the reservation prices. Notice what happens if the manufacturer has an alternative product one that is perhaps completely unrelated to the patented product that can be produced for a benefit of $9 per unit if it isn t producing the patented product. Then the sum of the reservation prices would equal $10 and there is no surplus to be divided and hence no point to concluding a negotiation. 9. Thus, Nash Bargaining requires an analysis of each party s next best alternative assuming it doesn t enter the agreement. This goes significantly beyond the invent around discussion in patent cases and includes strategic as well as marketing alternatives. A completely unrelated product not simply the allegedly-infringing product without the patented technology can provide a reservation price. Without an examination of the parties next-best alternatives, the analysis is not specific to the patent or the parties. In particular, applying a 50/50 split to any standard accounting profits without deducting the manufacturer s disagreement payoff will substantially overvalue the patented technology in the NBS framework. 2.2 Assumptions Critical To NBS 10. As Dr. Nash put it: In general terms, we idealize the bargaining problem by assuming that the two individuals are highly rational, that each can accurately compare his desires for various things, that they are equal in bargaining skill, and that each has full knowledge of the tastes and preferences of the other Nash s theory also relies on some additional assumptions: The parties tastes and preferences, i.e. their utility functions, are linear; and The outcome of the negotiation is independent of irrelevant alternatives Nash also implicitly assumes that the negotiation is completely isolated from any other negotiation or strategic consideration. For example, in the NBS, 8. Nash, J., The Bargaining Problem, Econometrica, Vol. 18, No. 2 (Apr. 1950), pp We explain this rather abstract term later in the paper. 2 les Nouvelles

5 Nash Bargaining Solution there is no consideration of any relationship beyond the negotiation (e.g. whether the parties to the negotiation are competitors or inventor/promoter.) There is also no consideration of the results of previous negotiations or of any established licensing program. Under NBS each deal is unique and uninformed by past deals or the prospect of future deals. In the world of Nash Bargaining, a license for the same patent to 100 different companies would naturally yield 100 different royalty rates. This is methodologically opposite to a Georgia-Pacific analysis, which is grounded in an analysis of prior licenses. 13. A very important aspect of the NBS is that all of its assumptions and conditions are absolutely necessary to arrive at the conclusion of an equal division of the surplus. If any one of these assumptions is not true in any particular negotiation, then the outcome is indeterminate. In particular, one cannot use a Georgia- Pacific analysis to adjust the 50/50 split as that is an admission that one or more of the assumptions and conditions required to apply the NBS are invalid. 14. In general, Nash s theory relies on assumptions about human behavior that seem plausible, but are not valid. Specifically, people are assumed to be rational and utility maximizers. However, the growing evidence from behavioral economics indicates that people aren t as rational as required by NBS. As stated by the Nobel Laureate Daniel Kahneman writing with Amos Tversky: We first sketch an analysis of the foundations of the theory of rational choice and then show that the most basic rules of the theory are commonly violated by decision makers One particular and explicit assumption underlying NBS that has been widely shown to be violated in the real world is the Independence of Irrelevant Alternatives or IIA. The IIA assumes that the existence of a third choice that is worse than the first two choices will not affect the final decision. The IIA is illustrated by the following: if I am choosing between a peach and a pear and I prefer peaches, then I will choose the peach. And if I am choosing between a peach, a pear and an apple, then I will also choose the peach if I prefer pears to apples. My preferences are ranked peaches > pears > apples so the addition of an apple into my choice set is irrelevant to my selection. I will still choose the peach. 10. Tversky, A., Kahneman, D., Rational Choice and the Framing of Decisions, The Journal of Business, Vol. 59, No. 4, Part 2: The Behavioral Foundations of Economic Theory. (Oct., 1986), pp. S251-S However much appeal the IIA has as a theoretical construct, it isn t actually true in the real world. People s choices are affected by irrelevant alternatives. There are multiple experiments demonstrating this. As described in a paper by Amos Tversky and Itamar Simonson: One group (n = 106) was offered a choice between $6 and an elegant Cross pen. The pen was selected by 36 percent of the subjects and the remaining 64 percent chose the cash. A second group (n = 115) was given a choice among three options: $6 in cash, the same Cross pen, and a second less attractive pen. The second pen, we suggest, is dominated by the first pen but not by the cash. Indeed, only 2 percent of the subjects chose the less attractive pen, but its presence increased the percentage of subjects who chose the Cross pen from 36 percent to 46 percent In this experiment, the addition of a lowquality pen to the choice between money and a high-quality pen a third, supposedly irrelevant option increased the percentage of people who chose the nice pen over the cash. In other words, approximately 10 percent of the people reversed their preference for cash over the nice pen because they were offered another option that was clearly inferior to the nice pen. This 10 percent originally ranked nice pen > cash, but when presented with an inferior pen they ranked cash > nice pen. The IIA states that the low-quality pen is the irrelevant option and thus should not affect the decisions of the players; but it does. 18. The IIA assumption matters greatly to the Nash Bargaining Solution. Without a neat ordering of preferences, utility functions become not just non-linear, but essentially unmanageable. Much as we d like to be able to simplify actual utility functions, they are not the neat, linear constructs needed to arrive at a 50/50 split of the profits from agreement. 19. The NBS also requires that each side know with certainty the other sides disagreement payoffs and that both sides have identical utility functions. These assumptions are clearly not true in real negotiations. The NBS 50/50 split is elegant, but it requires a set of idealizations that render it useless for predicting the outcome of a real negotiation. 20. As one game theorist wrote: I have never heard an economist seriously 11. Tversky, A., Simonson, I., Context-Dependent Preferences, Management Science, Vol. 39, No. 10, pp March

6 Nash Bargaining Solution claim that the Nash bargaining solution is a good predictor of bargaining in real markets The economic community has never accepted the NBS as an accurate predictor of actual outcomes. As such, it clearly fails the Daubert requirement that it be an established methodology. 3. The NBS Can t Be Used With Georgia-Pacific 22. The Georgia-Pacific Factors can t be combined with the NBS because they are methodologically opposed. The hypothetical negotiation described in Georgia Pacific is designed to replicate a real world negotiation and its outcome. In contrast, the NBS is described by Nash as an idealized bargaining situation. 23. In the hypothetical negotiation, the parties do not know each other s tastes and preferences or utility functions. Moreover, their utility functions are certainly not linear or identical. 24. The hypothetical license is usually for a multiple years and, by implication from Georgia Pacific Factor 7, for the life of the patent. The NBS does even not address the long term consequences of cooperation between the parties. The negotiation is assumed to take place and benefits obtained instantaneously. 25. The hypothetical negotiation described in Georgia-Pacific incorporates past licensing history in Factors 1, 2 and 12, and strategic considerations in Factors 4, 5, and 6. The NBS does not. All of the broader implications of the bargain are not considered by the NBS. 26. The NBS also requires certainty and symmetry between the parties and without that certainty the split of any surplus is indeterminate. Under NBS, there is no room for the calculation of the surplus to be uncertain as it is in the real world. In the real world, not only are the benefits of the bargain uncertain (How many units will be sold? What price will be acceptable to consumers? How will competitors respond? What will manufacturing costs be in two years? Etc.) but the disagreement payoffs are also uncertain. Thus, there is considerable uncertainty about the surplus and consequently significant risk in the outcome. The NBS does not address this. 27. Uncertainty about the surplus is a defining characteristic of the hypothetical negotiation. The Hypothetical Negotiation is required to be set at the date infringement begins. This is a date before the benefits of cooperation are known. An appeal to the Book of Wisdom to incorporate future knowledge into the date of the hypothetical reduces the uncertainty about the benefits from the patented product, but it does not reduce the uncertainty about the amount of the disagreement payoffs. 28. The NBS does not consider the relative risks of the parties. Under NBS, there is no way for either party to lose money from cooperating, yet, in the real world, that is a possible outcome. A manufacturer could pay more to access a patented technology than he will obtain in benefits from selling that patented technology. 13 Thus, one consideration in the Hypothetical Negotiation is the assumption of risk. Under a running royalty license: the risk of sales volume being higher or lower than expected is shared, the risk of profitability is entirely absorbed by the manufacturer, and the risk that the manufacturer will stop using the patented technology is entirely absorbed by the licensor. In a lump sum license, all risk is absorbed by the manufacturer in exchange for a discount to the present value of an expected running royalty. Under Nash Bargaining, there is no consideration of these tradeoffs for risk and division of any surplus. 29. Nonetheless, we do believe that the NBS does contribute to patent damages calculations. While the 50/50 split rests on idealized assumptions that are not valid in the real world, the definition of the surplus under the NBS is useful when considering patent damages. The calculation of the surplus takes into account each party s alternatives, reservation prices and costs of capital. However, using the 50/50 split posited by NBS as a check or supplement to a Georgia-Pacific is wrong as it is an admission that the NBS assumptions and conditions are violated. 4. Discussion Of Cases 30. The NBS has been met with mixed success in the courts. When it was used as the sole basis for the royalty rate, it has been rejected. When used as a check on or supplement to a Georgia-Pacific analysis, it has met with some acceptance. A discussion of these cases is below with the most recent first. 31. Suffolk Tech. LLC v. AOL Inc. and Google Inc., Case No. 1:12-cv-625 (Doc. No. 518), Eastern District of Virginia, Judge Ellis, April 12, NBS rejected as being no different than the 25% Rule. 12. Rubinstein, A., John Nash: The Master of Economic Modeling, Scand. J. o/economics, 97(1), 9-13, This is even before a consideration of alternative products that could have been produced that would have yielded greater total benefits. 4 les Nouvelles

7 Nash Bargaining Solution 32. VirnetX Inc. v. Cisco Systems, Inc., Case No. 6:10-cv LED (Doc. No. 745), Eastern District of Texas, Tyler Division; March 1, 2013; Judge Leonard Davis. NBS allowed. NBS accepted as the traditional 50 percent 50 percent profit split and applied to gross profit. While we don t know the specific details that led to a 50/50 split being characterized as being traditional, the court appears to have gotten this wrong. NBS is not traditional and does not involve splitting gross profit. 33. VirnetX Inc. v, Apple Inc., Case No. 6:10-cv- 417) E.D. of Texas, Tyler Division; February 26, 2013; Judge Leonard Davis. NBS allowed although most of the dispute was over whether the expert had correctly measured the profits due to the infringed technology. 34. Gen-Probe Inc. v. Becton Dickinson & Co., Case No. 09-CV-2319 BEN NLS and 10-CV-0602 BEN NLS, Southern District of California, November 26, NBS allowed in addition to the expert s real world observations. 35. Mformation Techs., Inc. v. RIM, No. C , Northern District of California, Judge Ware, March 29, NBS allowed as a check on a reasonable royalty derived through a Georgia-Pacific analysis. 36. Solvay, S.A. v Honeywell Specialty Materials LLC et al., SLR, District of Delaware, Judge Sue L. Robinson, September 8, NBS allowed because the expert testified that a 50/50 split is also supported by her review of thousands of agreements over 33 years of [her] career. Interestingly, the expert challenged was retained by the Defendant and the Plaintiff was challenging the use of the NBS. Also, it s hard to see how a review of license agreements would reveal anything about the parties split of profits. About all one can extract is that the royalty rates or lump sum payments tend to be small relative to sales. This would suggest that either the incremental profit is small or that the split favors the licensee. 37. Oracle America, Inc. v. Google Inc., No. C , Northern District of California, Judge Alsup, July 22, NBS firmly rejected with comments like: It is no wonder that a patent plaintiff would love the Nash bargaining solution The Nash bargaining solution would invite a miscarriage of justice by clothing a fifty-percent assumption in an impenetrable facade of mathematics... March

8 Survey Results In Favor Of ADR Survey Results Confirm Growing Trend In Favor Of ADR By Judith Schallnau, comments by Russell Levine For companies, research entities, universities and others, intellectual property (IP) has become an essential business asset as well as a means of creating value. It is being developed and exploited on an increasingly international level in various contractual relationships, such as research and development contracts, consortium agreements, licenses, purchase contracts, distributorships and joint ventures. With the increase of such transactions, the number of IP disputes increases. Disputes arising in relation to IP assets as critical elements of economic value can cause serious damage. The resources required to handle such disputes can be considerable, especially if the dispute involves litigation in multiple countries. At the same time, such disputes place a serious burden on the continuation and expansion of business. Careful consideration of the risks associated with technologyrelated disputes goes a long way in preventing, and resolving disputes. A strategy to manage such risks and to resolve any potential disputes rapidly and costeffectively, therefore, is critically important. To gain a better understanding of technology-related dispute resolution strategies and practices, the WIPO Arbitration and Mediation Center (WIPO Center) recently conducted the international WIPO International Survey on Dispute Resolution in Technology Transactions 1 (Survey) to obtain statistical information on the current use of alternative dispute resolution (ADR) mechanisms, such as mediation and arbitration, as compared to court litigation when it comes to resolving such disputes. WIPO Arbitration and Mediation Center The WIPO Center 2 promotes, on a not-for-profit basis, the resolution of international commercial disputes between private parties through Alternative Dispute Resolution (ADR) mechanisms, including arbitration, mediation and expert determination. It administers proceedings under the WIPO Mediation Rules, the WIPO Arbitration Rules, the WIPO Expedited Arbitration Rules and the WIPO Expert Determination Rules. 3 While these WIPO Rules are appropriate for all commercial disputes, they contain provisions on confidentiality and technical and experimental evidence that are of special interest to parties to IP disputes. To date, the WIPO Center has administered over 350 cases, with a 27 percent increase of its caseload in the past 3 years. The following diagram shows the split in the cases administered by the WIPO Center among the different procedures: Figure 1. Cases Administered By The WIPO Center Arbitration 24% Expedited Arbitration 19% 1. The results of the WIPO International Survey on Dispute Resolution in Technology Transactions are available at: int/amc/en/center/survey/results.html. The Survey was developed with the support of an expert group comprising in-house counsel and external experts in technology disputes from a broad range of jurisdictions and business areas, various professional associations, including the International Association for the Protection of Intellectual Property (AIPPI), the Association of University Technology Managers (AUTM), the Fédération Internationale des Conseils en Propriété Industrielle (FICPI) and the Licensing Executives Society International (LESI), and with the assistance from the WIPO Economics and Statistics Division. Mediation 57% Source: WIPO Arbitration and Mediation Center 2. Information on WIPO Center is available at: wipo.int/amc/en. For details on the history of the creation of the WIPO Center, see: Development of WIPO s Dispute Resolution Services, World Intellectual Property Organization, , Part III, pp , 6 les Nouvelles

9 Survey Results In Favor Of ADR The subject matter of the mediation and arbitration cases so far administered by the WIPO Center includes patent, know how and software licenses, franchising agreements, trademark coexistence agreements, distribution contracts, joint venture agreements, research and development contracts, technology transfer agreements, technology-sensitive employment contracts, mergers and acquisitions with important intellectual property aspects, sports marketing agreements, and publishing, music and film contracts, as well as cases arising out of agreements in settlement of prior court litigation. Parties in cases administered by the WIPO Center so far are based in Asia, Europe and North America. Of those parties, 32 percent are involved in the IT sector, 14 percent in pharmaceuticals, biotechnology and life sciences, 16 percent in mechanical, 10 percent in entertainment, 4 percent in luxury goods and 1 percent in chemicals. The remaining 23 percent are involved in a range of other areas. The amounts in dispute range between EUR 15,000 Euros and USD 1 billion. Seventy-six percent of mediation and arbitration cases administered by the WIPO Center are based on dispute resolution clauses 4 included in existing agreements between the parties stipulating that future disputes shall be submitted to WIPO mediation and/or (expedited) arbitration. The remaining 24 percent of mediations and arbitrations are based on agreements specifically submitting an existing dispute to WIPO mediation or (expedited) arbitration. Such disputes relate, for example, to patent infringement. Sixty-nine percent of WIPO mediations settle, as Figure 2: WIPO Mediation Settlements Mediation Settlement 69% Non-Settlement 31% Source: WIPO Arbitration and Mediation Center do 40 percent of WIPO (expedited) arbitration cases. See Figure 2. The increasing awareness and use of WIPO ADR is reflected by the incorporation of the WIPO Center s clauses in model agreements, such as the DESCA (Development of a Simplified Consortium Agreement for the Seventh Framework Programme (FP7)) model consortium agreement, which has been developed for multi-party collaborations in the area of research and development and which recommends WIPO Mediation Followed, in the Absence of a Settlement, by WIPO Expedited Arbitration. 5 Also, the Intellectual Property Agreement Guide (IPAG), 6 which provides model agreements for non-disclosure agreements, research contracts, research and development framework contracts, material transfer agreements, patent licenses and intellectual property purchase Judith Schallnau, World Intellectual Property Organization, Arbitration and Mediation Center, Legal Officer, Geneva 20, Switzerland Russell Levine, P.C., Kirkland & Ellis LLP, Partner, Chicago, IL, USA kirkland.com agreements, includes WIPO Expedited Arbitration as stand-alone ADR dispute resolution mechanism, and WIPO Mediation followed, in the absence of a settlement, by WIPO Expedited Arbitration. Further, the use of WIPO ADR has been publicly recognized, for example, in the modified Final Order of the Federal Trade Commission involving Motorola Mobility LLC and Google Inc., issued Arbitration Settlement 40% Non-Settlement (Award) 60% on July 23, 2013, which mentions arbitration, in- 3. A general description of the procedures administered by the WIPO Center can be found in an article published by the WIPO Center in Volume XLII No. 1 (March 2007) of les Nouvelles (http://www.wipo. int/export/sites/www/amc/en/ docs/nouvellesmarch2007.pdf). 4. Recommended WIPO Contract Clauses and Submission Agreements: index.html. 5. DESCA model agreement: 6. IPAG model agreements: March

10 Survey Results In Favor Of ADR cluding WIPO arbitration, in relation to a dispute on licensing Google s standard-essential patents on fair, reasonable, and non-discriminatory (FRAND) terms. 7 Comments by Russell E. Levine Based on my experience and on experiences that others have shared with me, I believe that administered ADR mechanisms are far better than non-administered procedures. The WIPO Center in particular has several advantages over other arbitral institutions, including locations in Geneva and Singapore and its status as an international agency. Since the WIPO Center is a not-for-profit organization, its cost structure is very competitive, and in my experience, lower than other arbitral institutions. The WIPO ECAF system, which allows parties and others involved in a case to submit communications electronically into a secured online docket, helps make the overall process extremely efficient. The WIPO database has over 1,500 IP arbitrators/mediators with expertise in all areas of technology, and from over 70 jurisdictions. Another advantage, in my view, of the WIPO Center is its long history and experience. It was established in 1994 to promote the resolution of IP and related disputes and over the years has developed and refined a comprehensive set of rules and procedures, including rules for expedited arbitration. About the Survey The Survey was distributed to companies, research organizations, universities, government bodies, law firms, individuals and other entities involved in technology transfer and technology disputes worldwide. Its findings are based on the 393 responses received by the WIPO Center from small (employing 1-10 people) to large entities (employing over 10,000 people) in 62 countries and operating in many different business areas, including pharmaceuticals, biotechnology, information technology, electronics, telecommunications, life sciences, chemicals, consumer goods and mechanical engineering. In addition to written submissions, over 60 interviews were conducted by telephone with stakeholders in 28 countries. Participants provided information about the types of technology-related agreements which they concluded 7. Modified Final Order of the Federal Trade Commission issued July 23, 2013: 724googlemotorolado.pdf. in the past two years, the types of disputes arising from these agreements, the methods used to resolve them and the reasons behind this. The survey confirms that parties to technologyrelated agreements are worried about the high costs and lengthy timelines of disputes, especially in an international context, noted WIPO Director General Francis Gurry at the launch of the survey report. While court litigation remains the default path, survey responses indicate that ADR offers attractive options in terms of cost and time, as well as enforceability, quality of outcome, and confidentiality, he added. Comments by Russell E. Levine The WIPO Survey results are consistent with what I have seen in my practice and what I have heard at LES local chapter meetings, LES (USA & Canada) annual and mid-year meetings, and LESI meetings. There is significant and growing interest in exploring alternatives to litigation. Companies large and small, public and private, and domestic and foreign are all considering alternatives to litigation to resolve disputes, and are putting ADR clauses into license agreements, joint development agreements, and other agreement involving and relating to IP. Almost every settlement agreement and license agreement that I have been involved in this year has included an ADR clause. If the parties are both U.S. parties, the preference is for mediation and/or arbitration utilizing a U.S.-based administrator, such as JAMS or CPR. In one agreement, in the electronics industry, the parties also specified the city in which the mediation was to occur so as to reduce travel costs for both sides. I have seen an even greater interest in ADR clauses when the parties to the agreement being negotiated are based in different countries. In a recent license deal in the automotive industry, the licensor was based in Europe and the Licensee was based in the U.S. Understandably, neither wanted a dispute to be resolved via litigation in the home country of the other, so they selected arbitration in a neutral location. The type of entity has an impact on the willingness to use an ADR mechanism. For example, universities, research institutes, and smaller companies tend to favor mediation and arbitration. These entities in particular are sensitive to costs, and simply may not have the resources necessary to withstand lengthy litigation. 8 les Nouvelles

11 Survey Results In Favor Of ADR Agreements and Occurrence of Disputes Of the types of agreements listed in the Survey, participants mostly frequently concluded non disclosure agreements (NDAs), followed by assignments, licenses, agreements on settlement of litigation, research and development (R&D) agreements and merger and acquisition (M&A) agreements. Reflecting the globalized business landscape, over 90 percent of participants indicated they had concluded agreements with parties from other jurisdictions, and 80 percent had concluded agreements relating to patents granted in several countries. The choice of applicable law made in these agreements was influenced especially by the location of the participants headquarters and the primary place of their operations. The Survey showed that while, overall, disputes occurred in relation to some 2 percent of participants technology-related agreements, licenses most frequently gave rise to disputes (among 25 percent of participants). R&D agreements ranked second (among 18 percent participants), followed by NDAs (16 percent), settlement agreements (15 percent), assignments (13 percent), and M&A agreements (13 percent). Licensing disputes concerned issues such as the scope and existence of a license, quality standards, profits and determination and payment of royalty rates. WIPO Center Experience: This reflects the experience of the WIPO Center with 42 percent of the technology-related cases handled by the WIPO Center relating to licenses, 7 percent to R&D agreements and 2 percent to settlement agreements. Comments by Russell E. Levine ADR can be particularly useful to expeditiously resolve disputes involving so-called Most Favored Nations (MFN) provisions. Such disputes often arise when the licensee believes that the licensor has granted a license to a third party with a more favorable royalty rate or more favorable terms and conditions, and the licensee believes that, pursuant to the MFN clause in its agreement, it is entitled to the benefit of this allegedly lower rate and/or more favorable terms. ADR also can be useful to expeditiously resolve disputes regarding whether second and subsequent generation products are Licensed Products and thus subject to the royalty provisions in the agreement. I have also seen ADR used to quickly resolve disputes relating to assignment clauses and disputes relating to audit rights. Choice of Dispute Resolution Clauses While there is a general perception that negotiations of dispute resolution often play a very limited role, 94 percent of respondents confirmed that they negotiate dispute resolution clauses as part of their contract negotiations. The most commonly negotiated stand-alone dispute resolution clause provides for court litigation (32 percent), followed by (expedited) arbitration (30 percent) and mediation (12 percent). Mediation is also included where parties use multitier clauses (17 percent of all clauses) providing for mediation prior to court litigation, (expedited) arbitration or expert determination. Where ADR is used, the choice of arbitral institution broadly corresponds to the location of respondents headquarters. WIPO Center Experience: Sixty-six percent of WIPO cases have been based on stand-alone dispute resolution clauses out of which 38 percent provided for arbitration, 25 percent for expedited arbitration and 38 percent for mediation. In 34 percent of cases parties included multi-tier dispute resolution clauses providing for mediation, followed by (expedited) arbitration. Comments by Russell E. Levine One advantage of contractual-based ADR is that the parties can structure the ADR process to best suit their dispute resolution needs. For example, the parties can limit the issues, limit the amount and type of discovery, and limit the length of the hearing. The parties also can specify certain characteristics an arbitrator should have such as a B.S. (Bachelor of Science) in Electrical Engineering or a familiarity with U.S. Patent law. I have seen clauses that require the arbitrator to issue a written decision within 60 days of submission of the last post-hearing brief and numerous other clauses all agreed to by the parties at the time the agreement was entered into, and all having the effect of expediting and reducing the cost of dispute resolution. When asked about trends, respondents generally confirmed a trend towards out-of-court dispute resolution mechanisms. Comments by Russell E. Levine I have often been asked by clients and others about trends in the use of ADR and, prior to the WIPO Survey, obtaining broad-based information and statistics on such trends had proven difficult. The Survey has some of the March

12 Survey Results In Favor Of ADR most comprehensive data that I have seen and it sheds light on the current trends in a wide range of industries and from across the globe. In the U.S., one reason for the growth in the use of ADR are Court Orders requiring the parties to participate in an ADR mechanism. The Alternative Dispute Resolution Act of 1998 requires federal district courts to authorize, by local rule, the use of at least one ADR process in all civil actions. As a result, most district courts have adopted such rules and increasingly are requiring or encouraging parties to engage in ADR or at least to have discussions about ADR. For example, the Northern District of Georgia s Local Civil Rules (as well as the local civil rules of many other district courts) include an ADR provision for the resolution of civil disputes with resultant savings in time and costs to litigants and to the court, but without sacrificing the quality of justice or the right of the litigants to a full trial in the event of an impasse following ADR. The district judge may in his or her discretion refer any civil case to a non-binding ADR process, or, with the parties consent, may refer any civil case to binding arbitration, binding summary jury trial or bench trial, or other binding ADR process. The timing of such referrals is left to the discretion of the district judge. The rules contain extensive provisions requiring the parties to consider ADR at the Early Planning Conference, the selection of an ADR neutral, the submission of required documents and memoranda, the procedures to be followed at the conference (including attendance by both lead counsel and the clients), reporting back to the district judge, and ADR fees. The Northern District of Illinois requires, in the form Report of the Parties Planning Meeting incorporated into the district s Local Patent Rules, the identification of any alternative dispute resolution procedure that may enhance settlement prospects. The International Trade Commission s rules permit Administrative Law Judges hearing Section 337 patent infringement investigations to direct the parties to discuss settlement. Figure 3: Main Considerations When Negotiating Dispute Resolution Clauses Costs 71% 71% Time 50% 60% Enforceability 33% 52% Quality Outcome (Including Specialization of Decision-Maker) 44% 45% Neutral Forum Confidentiality Business Solution 18% 36% 32% 33% 29% 30% Support Provided by Institution None in Particular (Standard Internal Practice) 9% 6% 5% 8% Setting Precedent 5% 6% 0% 10% 20% 30% 40% 50% 60% 70% 80% Percentage of Respondents International Agreements Domestic Agreements Source: WIPO Arbitration and Mediation Center, International Survey on Dispute Resolution in Technology Transactions 10 les Nouvelles

13 Survey Results In Favor Of ADR Prime Considerations for Dispute Resolution Mechanisms Cost and time are the prime concerns when negotiating dispute resolution clauses, both in domestic and international agreements. The Survey shows that for international agreements, other considerations include enforceability and forum neutrality. Finding a business solution, however, is the prime objective of those focusing their dispute resolution strategy on mediation, both for international and domestic agreements. See Figure 3. Objectives in Patent Disputes While the main objectives of claimant parties in patent disputes were to obtain damages/royalties (78 percent), a declaration of patent infringement (74 percent), and/or injunctions (53 percent), respondent aimed at declaration of patent invalidity (73 percent), a negative declaratory judgment (33 percent), and/ or a declaration of patent infringement (33 percent). Comments by Russell E. Levine The need for an ADR mechanism in patentrelated disputes, and for an ADR clause in patent-related agreements, is in my view greater than when dealing with other types of IP rights. The complexity of patent-related disputes often results in lengthier and more costly litigation as compared to copyright or trademark litigation, for example. As the Survey results show, costs and time are the two main considerations when negotiating dispute resolution clauses and a properly structured ADR mechanism can reduce the time and cost needed to resolve a dispute. For example, I recently represented a party in the automotive industry in litigation with its primary competitor. The settlement agreement included an escalating dispute resolution mechanism that started with discussions between executives and concluded if necessary with a binding arbitration. In their effort to control costs and to speed up the entire process, the parties agreed that any future patent dispute had to be initiated within a set time period triggered by the issuance of the patent or introduction of the accused product. The parties also limited the issues to infringement and validity, and prevented issues of willfulness or inequitable conduct from being raised in the proceeding. WIPO Center Experience: Some 40 percent of the WIPO Center s arbitration and mediation cases relate to patents. In these cases almost all of which are contractual requested remedies include damages, royalty payments, declarations of non-performance of contractual obligations and/or of patent infringement, a declaration of unenforceability of a patent against a licensee, or, principally in mediation, entering into a contract. Figure 4: Relative Use Of Court Litigation, (Expedited) Arbitration, Mediation, Expert Determination Expedited Arbitration Expert Determination Court Litigation Foreign Jurisdiction Mediation Arbitration CONTRACTUAL Court Litigation Home Jurisdiction 50% 0% FREQUENCY 50% Expert Determination Expedited Arbitration Arbitration Court Litigation Foreign Jurisdiction Court Litigation Home Jurisdiction Mediation NON-CONTRACTUAL Source: WIPO Arbitration and Mediation Center, International Survey on Dispute Resolution in Technology Transactions March

14 Survey Results In Favor Of ADR Figure 5: Relative Time And Costs Of Resolving Disputes Through Court Litigation, (Expedited) Arbitration, Mediation, Expert Determination Expert Determination Mediation Expedited Arbitration Arbitration Court Litigation Home Jurisdiction Court Litigation Foreign Jurisdiction TIME TIME COST COST Mediation Expert Determination Expedited Arbitration Arbitration Court Litigation Home Jurisdiction Court Litigation Foreign Jurisdiction Source: WIPO Arbitration and Mediation Center, International Survey on Dispute Resolution in Technology Transactions How Disputes Were Resolved Broadly consistent with the Survey findings concerning the choice of dispute resolution clauses, the most common mechanism used to resolve technology disputes was court litigation in both home and foreign jurisdictions followed by arbitration, mediation, expedited arbitration and expert determination. See Figure 4. Time and Costs The respondents spent more time and incurred significantly higher costs in court litigation than in arbitration and mediation. The estimated duration of court litigation in a home jurisdiction was on average 3 years and costs around U.S. $475,000. Litigation in another jurisdiction takes around 3.5 years with legal fees of just over U.S. $850,000. In contrast, the Survey shows that mediation takes on average 8 months, and in the majority of cases costs less than U.S. $100,000. Arbitration takes on average just over a year and typically costs around U.S. $400,000. See Figure 5. WIPO Center Experience: By comparison, in the WIPO Center s experience, mediation under WIPO Rules takes on average 5 months and costs on average U.S. $21,000. Arbitration cases under the WIPO Expedited Arbitration Rules on average take 7 months and cost around U.S. $48,000 and cases under the WIPO Arbitration Rules, often involving patents protected in several jurisdictions, on average take 23 months and cost some U.S. $165,000 (48 percent of such cases involving a three member tribunal and 52 percent a sole arbitrator). On top of the monetary costs, dispute resolution also ties up the time of business executives and others participating in the proceedings. Involvement in such disputes can also translate into reduced productivity and missed business opportunities. Comments By Russell E. Levine I agree with the WIPO Survey results. Mediation is faster and less expensive than arbitration and both are faster and less expensive than litigation. In a recent arbitration in which I represented the respondent, the arbitration hearing was held seven months after the complaint was filed and the arbitrators decision issued one month later. I have found that the recipe for success in arbitrations is not that different from how we prepare for jury trials in the U.S. Indeed, good arbitration practice is not much different from good trial practice, although more emotional jury persuasion techniques are generally less effective and can even be counterproductive before a panel of experienced judges or patent litigators serving as arbitrators. For mediation in the U.S. and with U.S.-based companies, a few tried-and-true practices 12 les Nouvelles

15 Survey Results In Favor Of ADR generally make the process more likely to end successfully: 1. Bring a decision maker from the client and include him or her in the preparations. Many mediators, especially magistrate judges, expressly require this. You should feel free to allow the decision maker to meet directly with his or her counterpart or with the mediator. If you have undertaken all necessary preparations, there is nothing to fear and much potentially to be gained. In a case I mediated years ago in the District of Delaware, involving back-end, financial transaction technology, the other side did not send the decision maker. The person they sent agreed to a proposed deal, the Magistrate Judge, who was the mediator, told the District Court Judge that the case had been settled and the parties went back home while the lawyers stayed to draft the final settlement agreement. The following day, the Magistrate Judge received a call from the person the other side had sent and was told that the proposed deal had been rejected by senior management, as had the entire deal structure. Instead of a running royalty structure, the other side now wanted a lump sum structure. Needless to say, the dynamics of the mediation dramatically changed. 2. Focus on what you need, not what you want. Mediation is not the time to win. There is nothing wrong with tough negotiating, but set a goal that you can live with and aim for it. 3. Leave emotions at the door. Where the parties have a personal or professional animosity toward each other, this can be difficult. In those cases, sometimes a bit of venting can be therapeutic and beneficial if properly managed by an experienced mediator who can keep things in hand. Ultimately, though, mediation is a business negotiation and should be treated as such. Labeling the other side, even internally, as a patent troll, thief, or heartless corporation is never productive. 4. Think carefully about opening statements. It is usually a waste of time to use an opening statement to try to convince the other side or a mediator, especially one using a facilitative approach, of the rightness of your case. Where an opening statement can be helpful, however, is in demonstrating to the opposing client that you are prepared to litigate, know your case, and can advocate persuasively. But, in most cases, the parties know that the other side is prepared and has quality lawyers and thus, opening statements tend to create emotions and can be counter-productive to the process. Unless there is a very good reason to have opening statements, I believe that the best practice is to dispense with them. 5. Avoid scheduling multiple sessions in advance. Schedule one and go into it with as much optimism as possible. Negotiations tend to work better if there is a deadline and a sense of crunch time. Moreover, if multiple sessions are scheduled, say months apart, the early sessions tend to become smoking out sessions and parties tend to hold back to see if they can push for more from the other side. Certainly if progress is being made, the parties should schedule another session, but that is something that should be done at the end of the day, not prior to the start of the mediation. 6. Select a mediator who is willing to get, and stay, involved. Many mediators take great pride in their settlement rates and will do whatever it takes to get the case resolved. 7. Memorialize any agreement in a written term sheet. This should include not only payment terms, but license scope, confidentiality, and other such provisions, to avoid a deal later blowing up over what the parties assumed they could later work out. Of course, if it is feasible to prepare the definitive settlement agreement while all parties are present, it is preferable to do so. Some Observations It is clear that no one dispute resolution mechanism can offer a comprehensive solution in all circumstances. Indeed, each transaction is likely to have its own dispute resolution requirements. It is for the parties involved to assess the specific circumstances of a transaction and to determine the most appropriate way to resolve any disputes that may arise. The Survey, however, does offer some useful guidance for those involved in developing dispute resolution strategies. Key insights include: The need to anticipate the risk of disputes in contracts. Although dispute resolution provisions are often regarded as a relatively minor element in contract negotiations, the time and costs associated with any subsequent dispute means that parties cannot afford to ignore this aspect. The need to take account of the risk of foreign litigation and anticipate the international nature of the parties, rights and law involved. March

16 Survey Results In Favor Of ADR The cost of court litigation in a foreign jurisdiction, and sometimes in a home jurisdiction, typically exceeds that of ADR mechanisms. When crafting dispute resolution strategies, it is therefore important while taking account of the specifics of a given transaction, to focus on keeping costs and time to a minimum. Mediation can be a valuable part of a dispute resolution policy, with high settlement rates yielding significant time and cost savings. Adding arbitration as a next step in a multi-tier approach can enhance the chances of settlement if mediation fails. In relation to international patent disputes, which have important time and cost implications, when deciding whether to opt for court litigation or ADR mechanisms, it is important to take account of any existing specialized courts and judges, bifurcation of proceedings, availability of injunctions, possible parallel litigation, and enforceability. Comments by Russell E. Levine The WIPO Survey shows that ADR has become more common in resolving patent infringement, patent license and other technology-related disputes. This trend will continue as more and more agreements contain ADR clauses. In my opinion we also will continue to see parties agree to move existing litigation matter out of court and into an ADR process. In this regard, there is always a tension in determining the most effective time to move the case from court to ADR or to stay the litigation while utilizing an ADR mechanism. When ADR is done early, the cost savings are greatest and the parties are generally less entrenched in their positions and have had less opportunity for the case to have become personal. On the other hand, however, the parties will have had less opportunity to gather necessary information to evaluate their position. While this is less of an issue in binding arbitration, in which the arbitration process itself may allow for discovery, depending in particular on the law of place of arbitration and the parties agreement), when mediation or expert determinations are used, a process that occurs too early may be less fruitful. In my experience, if the parties are using mediation or expert determinations, an ideal time is usually following the exchange of infringement, invalidity, and (if applicable) non-infringement contentions, along with the accompanying document productions, but before any depositions or significant document production. This generally allows the parties to gain enough information about the merits of the case without incurring the most significant discovery expenses or the cost of claim construction briefing and a claim construction hearing. Some limited amount of damages discovery (often in the form of an exchange of summary charts) also is helpful. If the case is likely to turn on a claim construction argument, the parties may want to consider a non-binding claim construction on one or two key terms by the arbitrator or mediator. The type of ADR most likely to be successful will vary depending on the nature of the dispute and the dynamics of the parties. It is important to think these issues through. If the parties seem to recognize that there are merits to both sides of the case, or if the parties have an ongoing business relationship, mediation may be the best choice. If the parties are both highly certain that they will win at trial and antagonistic toward any negotiation, arbitration might be a better option. Even within the options of mediation, expert determinations, or arbitration, a number of additional options, and even different styles of neutrals and procedures, are available and should be considered. Whatever process is selected, it is important to document the decision between the parties, addressing such issues as whether the process will be binding, how a neutral will be chosen, confidentiality, appeal rights, the issues that will be addressed, etc. And, rather than re-inventing the wheel, the parties likely would be far better off designating an arbitral institution, such as WIPO s Arbitration and Mediation Center, and using its rules and procedures. 14 les Nouvelles

17 IP In Academic Environments Patent Technology Landscapes For Assessing Intellectual Property In Academic Environments By Joe Wyse, Ken Zinda, Greg Gerhardt, Bob Gregory and Eric A. Grulke Abstract The patent technology landscape is an analytical tool widely used in industry to assess the value of and guide the development of intellectual property (IP) into commercial products and processes. Although academia increasingly faces the similar need to assess commercial potential of university-created IP, the tool has not been used in university settings because it requires third party data inputs and experienced analysts who are more typically used by industry. This project demonstrates how the tool could be used in academic technology development and transfer planning, initially with assistance of consultants. This patent technology landscape process, modeled after the Inspherion (Cleveland, Ohio) analysis methods, included building a hierarchical structure of a invention, connecting its attributes with market needs, perceiving potential markets for the technology, and constructing a matrix of the landscape to help visualize patent activity and relationships. An advanced stage translational research project was used as a test case. This patent technology landscape approach improved the definitions of technology attributes, identified new potential markets, clarified the research activities of potential collaborators and competitors, and identified new, shorter pathways toward commercialization. All of these outcomes address critical needs for university decision-makers responsible for allocating scarce academic resources. In addition, using such a landscape would help faculty and students by providing a structured approach for understanding translation processes that can lead from discovery to commercialization. The landscape can help identify opportunities for academic academic, academic startup, and academic industry collaborations. Introduction Challenges for Assessment of Academic Research Leading to Commercialization Translating bench-scale research into clinical practice is becoming increasingly important for scientists and administrators in the medical and life sciences sectors. Such efforts can be particularly challenging for academic research teams, which often have few contacts, modest experience, and limited opportunities to conduct activities leading to the commercialization of innovations. Guiding research translation can also be challenging for university administrators charged with IP evaluation and economic development. Universities, now in an era of scarce research resources, may be trimming resources devoted to assessing the potential of their intellectual property and to ensuring that their commercialization processes link to their academic missions. Commercialization facilitated by academic structures, such as offices of economic development, can be realized in a variety of forms, from entrepreneurship of spin-off companies to licensing technology with established corporate partners. But for commercialization to be successful, economic development offices need to handle a number of formidable tasks, such as: Sizing the market and identify potential applications; Identifying potential licensees; Developing business strategies for commercialization of the technology; Assessing values of specific licenses, license terms, and their business strategy; Understanding scaleup and manufacturing options; and Joe Wyse, Wyse Innovations, President, Lexington, KY, USA wyseinnovations.com Ken Zinda, Inspherion Inc., President, Cleveland, OH, USA inspherion.com Greg Gerhardt, University of Kentucky Medical Center, Professor and Director for Microelectrode Technology, Lexington, Kentucky, USA, Robert Gregory, PhD, University of Kentucky College of Engineering, Proposal Development Officer, Lexington, Kentucky, USA Eric A. Grulke, University of Kentucky, Associate Dean, Research and Graduate Studies, Lexington, Kentucky, USA March

18 IP In Academic Environments Patent landscape objective Understanding the landscape Table 1. Challenges When Implementing Patent Landscapes In An Academic Environment Identifying and understanding recent trends Obtaining team expertise for manufacturing, regulatory, and business issues Estimating freedom-to-practice Leveraging related intellectual property Implementation challenges for an academic environment Assessment of technology deserts is practical while jungles may require excessive resources. Academic inventors may miss economic, social, and business trends. Not all of these elements may be locally available for the review process or within the academic research team. Appropriate evaluation experience may be missing at the academic institution. Co-opting and collaboration require excellent knowledge of the business community. Evaluating options for commercialization, such as company formation, long-term patent portfolios around the technology area, and the services needed to support such efforts. However, university IP programs often face a wide range of what are, by definition, new and thus unfamiliar technologies; staff may have limited experience either with specific target market placements or with setting realistic expectations for the wide range of IP generated by large universities. Commercialization in Typical Academic Environments At many universities, technology transfer offices review invention disclosures in relative isolation from the business and market environments for potential commercial products. The reviews, often conducted by a faculty committee, tend to focus on a single factor disclosure novelty (e.g. contribution to the field) based on patent and archival literature. A tool for evaluating intellectual property should go beyond disclosure novelty. It should be neutral with respect to technologies (to reduce the tendency to over- or under-estimate the value of the specific invention); it should show the scope of related work, identify relevant technology trends, and their intensities; it should suggest freedom-to-practice; and evaluate all potential markets (especially those that may not have been considered by the inventors themselves). Now, the overriding challenge for academic environments is not just to innovate, but to create value for industry, which, in turn, will create value for the university. Patent landscapes. Life science companies commonly use patent landscapes for strategic planning [1]. Examples of patent technology landscape applications include assessing freedom-to-operate [2] [3], evaluating intellectual property associated with the human genome [4, 5], comparing stent thrombosis [6], and medical devices [7, 8]. Patented technology landscapes can be used to understand the technology environment, identify recent trends, explore close out issues, estimate freedom-to-practice, and uncover other intellectual property that can be leveraged. Activity in technology areas is generally categorized in terms of its published patent density: as a desert (< 10 patents), a grassland (10 to 100 patents), a forest (100 to 1000 patents), and a jungle (> 1000 patents). In academic environments, it is likely that desert patent landscapes will be more easily investigated than jungle patent landscapes, because landscapes requiring analysis of high volumes of information will require more resources for the analyses. Table 1 lists challenges for implementing patent technology landscapes analytics in academic environments: these challenges are linked to the previous list of commercialization needs. Patent Technology Landscapes for Academic Environments The Contextual View of IP Development Managers of academic IP need to determine the position of a specific project within a broader patent technology application landscape. For example, what do the patent rights represent to the marketplace? The traditional linear model for commercialization pathways assumes series workflow from basic research through concept validation and development to commercialization. By contrast, activities associated with current commercialization pathways should be visualized as a network with nodes of research, products, and patents connected in complex patterns (Figure 1). The milieu includes products, patents, applied research, and fundamental research. Information flows in the network are complex and can occur in all directions. Collaborative partnerships and cross-licensing arrangements can con- 16 les Nouvelles

19 IP In Academic Environments Figure 1. Network Model Of Innovation Applied Research Product Applied Research R&D Patent R&D Applied Research R&D Patent Product Patent Patent Product Applied Research Product R&D Applied Research R&D R&D Applied Research Product Patent Product Patent tribute significant accelerations or can expand the innovation ecosystem. 1 Our case study focuses on applications of a novel multisensory probe for neurological treatments and disorders, an interoperative chemical diagnostic device. This patent technology landscape process was used to identify potential technology white spaces (areas with low levels of activity), to quantify the patent activity of major medical device manufacturers in this landscape, and to uncover potential collaborative opportunities. Once the landscape was understood, product development activities within the academic laboratory could be prioritized. Figure 2 shows the patent technology landscape process used in this work. The process steps are: select a visualization method for the landscape; develop the search structure and terms; perform the search; and analyze the results. 1. Elements of an innovation ecosystem for a specific technology include the knowledge portfolio (intellectual property, basic science, and technology), the institutional components that support this portfolio (academic, industrial, finance, and manufacturing), the learning capacities of the ecosystem team members (the mission and vision links, the resources, and the infrastructure), and the network of connections between them. [9] Goldstein, H. and J. Drucker, The economic development impacts of universities on regions: do size and distance matter. Economic Development Quarterly, : p. 22. Visualization method. In this case, we chose a two-dimensional matrix of utility attributes and application markets [9] for the interoperative chemical diagnostics device, establishing the structure for the patent search process and the resulting graphical landscape. Developing the search method. There are two steps for this element: deconstructing the medical device into subsystems and linking those to performance attributes and markets, and generating search terminology for all matrix elements pairs (attribute: market). The search terminologies describe all at- Figure 2. Patent Technology Landscape Process Select Visualization Method 2D matrix of attributes and markets [9] Develop Search Structure Deconstruct the innovation (Hierarchy of Innovation) Generate search terminology Search Simple (patent databases) or Advanced (special services) Analyze Measurands Outcomes March

20 IP In Academic Environments Figure 3. Hierarchy Of Invention: Interoperative Chemical Diagnostic Device Hierarchy of Invention End-Product Market Disorder Type Brain Disorders Disorders Tumors Epilepsy Traumatic Brain Injury Neuro Degerenerative Disease Nerve Stimulation Application Acute CNS Diagnostic Brain Neuro Sensors Migraine Mood Disorder/ Depression Chronic CNS Diagnostic Signal Channels Function Device Channels Device Reporter CNS Signaling Devices Device Diagnostic Instrument Components Electrode Component Attributes Perfected Analytes Conceptual Analytes Untested Analytes Diagnostic Ratios Brain Metabolics Attribute CNS Pattern 1 CNS Pattern 2 Device Coating tributes, functional forms, applications, and markets of interest. The search algorithm then identifies documents with specific pairs of attribute:application terms, i.e., representing a specific matrix element in the landscape. The patents identified for each matrix element constitute a frequency subset that is then subjected to measures. The Hierarchy of Invention 2 framework was used to deconstruct the innovation; it illustrates how different invention systems and elements are integrated to provide solutions to market needs. A Hierarchy of Invention sketch deconstructs the device into three aspects: functions, systems, and components. These device elements are then linked to attributes (or specifications) and the relevant applications (or markets served). The interoperative chemical diagnostic device used to test the approach has been used in clinical trials linked to tumors, traumatic brain injury, epilepsy, and neuro-degenerative diseases. Its structure includes: A ceramic probe with a precise positioning system; 2. The Hierarchy of Invention is a methodology developed by Inspherion and is used by permission. A sensor system with multi-channel microelectrodes (4-24); Enzymatic reporter systems in sterilized, crosslinked matrices to prevent enzyme leaching; and A set of analyte detection systems that can be patterned on the ceramic probe, some of which are robust (demonstrated via clinical trials) and others of which are under development. The performance attributes form the base of the sketch of the hierarchy (Figure 3). The applications are shown at the top of the sketch, and are connected to the attributes by the device structure. Figure 3 helped the academic research team visualize the relationships between device structure, the market attribute or attributes that link to its specification(s), and potential market applications. Search algorithms. A key objective for this case study was to identify new potential markets for the interoperative chemical diagnostics device. Analysis. Our analysis was based on a set of measurands for the published patent data and leading indicators that describe patenting activity within the landscape. Innovation measurands. The measurands used to describe innovations in the analysis were patents per 18 les Nouvelles

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