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January 25, 2008

Fools Gold

In a drive to have abstraction triumph over reality, the International Organization for Standardization (ISO) thinks it can develop an international standard for patent valuation. It's an academic economist's wet dream.

IAM magazine, easily confused with the dog food folks, covered the intellectual grease spot. ISO has a working committee. They toot that "you can participate," though of course through channels:

[Y]ou only have to contact your national standardization body and inform them about this proposal and your interest to join the development of an ISO standard on patent valuation. Your national standardization body as your representative at ISO will follow this proposal and bring all other interested groups in your country together to join the implementation of this ISO standard. To make such an international project work, individual experts or single companies cannot directly contact ISO, which is why you have to contact your national standardization body.

Dr. Malte Köllner, writing in IAM:

The standard focuses on the valuation of individual patents, because this forms the basis of any decent valuation work. If it comes to the valuation of a whole bunch of patents, a portfolio, any perfect valuation would have to value every single patent in the portfolio in no less than the standard manner. On top of that, the constructive or destructive interferences and synergies between the patents in the portfolio would have to be taken into account. In most practical cases, this is not feasible.

While the paragraph orbits la-la land, latch onto the anchor in that last sentence: "In most practical cases, this is not feasible."

For a backgrounder on patent valuation guaranteed to make your head hurt after your eyes glaze, Theo Grünewald has just the ticket. Grünewald outlined three valuation approaches: cost, market, and income, each with different methods.

The basic economic idea, on which the cost approach is based, is the idea of replacement. This means the value of a patent is identified as the amount that would be necessary to replace the protection right or the related economic benefit potential. The logic behind this approach is that a prospective buyer acting in a logical way would not be willing to pay more for a patent than the amount he would have to pay to obtain an equivalent protection right.

Considering there is no financially attributable equivalent protection right, home plate is a black hole. And that's before considering lifecycle estimation: that is, net present value of unknowable market circumstances in the future; unknowable considering the vector of technology replacement; patents themselves being best viewed as technology vector replacements.

The market approach is based on a comparison with a corresponding transaction between independent third parties. That is to say, the value of a patent is defined through comparison to a similar patent, the market price of which is known through an earlier purchase or sale.

Nice thought, until you consider:

[P]atents are, per definition, unique. Therefore, it is not possible to find transactions involving comparable patents.

Yes, a bit of overstatement, but only, from a valuation perspective, a wee bit.

Finally, the income approach -

The economic basis of the income approach is the comparison of the future economic benefit of a patent with the future benefit of an alternative investment... These economic benefits are compared to the best alternative investment, which shows the same future payment flows and the same investment risk. With respect to the valuation, the comparison is made by determining the future economic benefit of the protection right and then discounting it with a risk-adapted interest rate to its actual cash value.

Let us again contemplate the seminal observation that: "Patents are by definition unique."

Uninfringed patents are worth what someone is willing to pay; valuation in this instance subjective projection as reliable as a sales forecast for a product not yet on the market; particularly for more valuable inventions. Think Segway personal transporter. Contemplate spread-spectrum technology, an invention before its time: invented during World War II; patent expired unexploited; now the predominate wireless transmission means, worth hundreds of billions a year.

Even an infringed patent; that is, an adopted technology, has a tenuous market value, from a lifecycle viewpoint. Anecdotal evidence abounds of foolhardy valuations; example: Microsoft's miss on the Intertrust portfolio, bought by Sony instead, whereupon Microsoft ended up paying, just a few years later, more than a hundred million more for infringement that it would have if it had bought the portfolio itself.

Damages assessment has historically been multi-factored, and necessarily circumstantial. Standardize that.

Posted by Patent Hawk at January 25, 2008 11:56 PM | Patents In Business

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