Sales Savvy

For some companies, it's become a lifeline. They can't raise money any other way. Banks aren't lending. Investors have become skittish. So, over the past six months, a growing number of cash-strapped startups have begun selling their patents. And they're not the only ones. More and more companies of all sizes are seeking to weather these tough economic times by selling patents.

"Since September, I've seen a lot more patents being offered for sale--better quality patents, across all types of industries," says Don Merino, general manager of acquisitions for Intellectual Ventures, one of the world's largest patent licensing firms.

Selling a patent is tricky, however. The way a company offers it for sale can make a big difference in the final sales price.

Adrian White learned this the hard way when he tried to sell several patents for remotely diagnosing computer malfunctions. He attempted to sell his patents in 2006 at Ocean Tomo's summer patent auction, but the highest bid was just ?300,000 (approximately $600,000). This fell far short of his reserve price of ?500,000 (approximately $1 million).

Several months later, White asked IPotential, an IP management firm, to try brokering a private sale. The company put together a new marketing package, approached some prospects and subsequently sold the patents in June 2007 for $1.5 million--allowing White to net $1 million.

But private sales aren't always better than public auctions. In order to decide which approach is best, sellers need to consider a variety of factors, including the patent's complexity, its estimated value and the seller's need to keep the patents from being purchased by its direct competitors.

"There's no one way to do this," says Joe Chernesky, president of IPotential.


Sales Force

Sales method aside, it's a good time to be selling patents. Unlike most other assets, they haven't significantly depreciated in value over the past year, according to many experts.

"Good patents are still selling for a quality amount of money," says Andrew Ramer, managing director of Ocean Tomo's Transaction Practice.

There are still plenty of buyers, despite the economic downturn. "I haven't seen any change in demand," Chernesky says. Even in tough times, he notes, businesses still require patents to bring new products to market and to protect themselves from lawsuits.

It's also a good time to be buying patents, as more and better patents are now coming onto the market. The economic squeeze is pressuring companies to monetize their patents, and quickly. Not only are patent owners more willing to sell, they are often more willing to negotiate on terms.

"[Patentees] are saying, 'Do I want to get a certain amount of money now, or do I want to be more speculative and try to run a patent licensing program and absorb the costs of that program?' In these tough economic times, many companies are going for the fast buck," Merino says.

The strong demand for patents may not last, however. The economic downturn is starting to inhibit many companies' willingness to spend, according to some experts. "Buyers are getting a little more cautious, taking a little more time, and are a little tighter on the purse strings," Ramer says.

However, some companies are buying more aggressively, he adds. "I think that is very wise because they are going to pick up some bargains."

Auction Action

Patents have been bought and sold for hundreds of years, but the market for these assets has jumped dramatically in recent years. "Today, every good-sized company is buying patents," Chernesky says. "Some of them are spending more on buying patents than on developing their own."

And as patents have become more important to the economy, new players have entered the market--companies like Intellectual Ventures, Acacia Research Corp., RPX Corp.--whose goals are to build up powerful patent portfolios and make money by licensing their patents. "Billions of dollars have moved into this space," Chernesky says.

Three years ago, the market for patents took another big step forward when Ocean Tomo launched the first large-scale patent auction. It generated a lot of attention--and $3 million in sales. The company now offers three patent auctions a year, and its October 2008 auction produced $12.8 million in sales.

As the novelty of these auctions wears off, a growing number of businesses see them as an important venue for patent transactions. "We've seen a significant increase in the number and types of bidders," Ramer says. "We are getting a lot more large operating corporations that are not only sniffing but buying."

For sellers, publicly auctioning off a patent is usually much less costly than selling a patent privately through a patent broker. Auctions are thus a good fit for less valuable patents, enabling the seller to keep more of the final price.


Private Sale Prerogatives

Selling a patent by public auction typically is faster than arranging a private sale. This speed, however, sometimes works against sellers. A longer selling process enables a buyer to do more thorough due diligence on the offered patent, and such examination usually is needed if the buyer is to be comfortable paying a lot for a patent.

"As the price goes up, companies usually want to do more research before buying," Chernesky says. "Patents that sell for over $1 million, especially those that sell for over $5 million, are best suited for M&A-type [private] transactions."

Complex patents, because they require careful study, are also usually more suitable for private sales. "Life science, biotech and complex pharmaceutical patents require lots of due diligence and time to explore them, so public auctions are not the best venue [for them]," Ramer says.

In addition, in an auction a seller can't ensure that its patent won't be purchased by a direct competitor (since bidders often hide their identity behind agents). Auctions also allow parties much less flexibility in structuring their deals.

"Most auction companies will require full payment within two weeks of sale," says George Chen, a partner at Bryan Cave. "The buyer may want to pay over time, but the parties often don't have that flexibility in a public auction."

Private sales and public auctions each have their advantages and disadvantages. A canny seller will select the best sales method based on the seller's goals and its particular patents.

"There will always be a place for private [patent] sales, but there is a place--a need--for public auctions," Chen says. "The two will coexist together."

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Steven Seidenberg

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