Tom Ewing & Robin Feldman: The Giants Among Us
`
`Law Review
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`Stanford
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`The Giants Among Us
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`TOM EWING & ROBIN FELDMAN*
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`CITE AS: 2012 STAN. TECH. L. REV. 1
`
`http://stlr.stanford.edu/pdf/feldman—giants-among—us.pdf
`
`“ © Thomas Ewing, JD, MS, MA, Licentiate in Industrial Management & Economics (expected 2012); Robin Feldman,
`Professor of Law 8: Director of LAB Project, UC Hastings Law. \Ve are grateful to Ben DePoorter, Josh Horowitz, Jonathan
`Masur, Darien Shanske, Steve Tadelis, Ove Granstrand, and Marcus Finléif Holgersson. We would also like to thanszmes Nolan,
`Patricia Dyck, Chris Johnson, Sandy Liu, Jason Ross, \Villiams Casey, Leanne Yu, and Elaine Zhong for their excellent research
`assistance.
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`IVM v. Xilinx
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`Exhibit — XLNX-2002
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`Trial Number: lPR2012-00018
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`XLNX—ZOOZ — Page 1
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`Tom Ewing & Robin Feldman: The Giants Among Us
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`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................................................................ 1
`
`I. FACTS .............................................................................................................................................................. 2
`A. Intellectual Ventures...................................................................................................................................... 3
`B. Patents and Applications Held by Intellectual Ventures ................................................................................. 5
`C. Origins of the Portfolio ................................................................................................................................... 7
`C. Funding Sources............................................................................................................................................. 9
`D. Return on Investment..................................................................................................................................... 9
`E. Collecting Revenue: Privateering & Other Exploits ..................................................................................... 12
`F. Other Mass Aggregators & Interconnections................................................................................................. 15
`
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`II. POTENTIAL POSITIVE EFFECTS..................................................................................................... 18
`A. The Forgotten Inventor ................................................................................................................................ 18
`B. The Middleman............................................................................................................................................ 20
`C. The Litigation Defense Fund ....................................................................................................................... 21
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`III. POTENTIAL HARMS............................................................................................................................. 23
`A. A Tax on Production.................................................................................................................................. 25
`B. Opportunities for Anticompetitive Conduct ................................................................................................... 26
`C. Raising Rivals’ Costs................................................................................................................................... 26
`D. Other Troubling Market Behavior............................................................................................................... 28
`E. Odd Characteristics of the Inputs Supplying the Market............................................................................... 29
`F. Odd Characteristics of the Aggregator Business............................................................................................. 30
`G. Economic Stability....................................................................................................................................... 31
`H. “To Serve Man” ......................................................................................................................................... 32
`I. Ancillary Implications ................................................................................................................................... 33
`
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`IV. A FEW OBSERVATIONS...................................................................................................................... 35
`A. Regulatory Oversight.................................................................................................................................... 35
`B. Let the Sun Shine In.................................................................................................................................... 37
`C. Removing the Teeth of the Tiger.................................................................................................................... 41
`
`
`CONCLUSION ................................................................................................................................................ 41
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`APPENDIX A .................................................................................................................................................. 43
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`APPENDIX B................................................................................................................................................... 44
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`APPENDIX C................................................................................................................................................... 47
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`Robin Feldman & Tom Ewing: The Giants Among Us
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`INTRODUCTION
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`The patent world is quietly undergoing a change of seismic proportions. In a few short years, a
`handful of entities have amassed vast treasuries of patents on an unprecedented scale. To give some
`sense of the magnitude of this change, our research shows that in a little more than five years, the
`most massive of these has accumulated 30,000-60,000 patents worldwide, which would make it the
`5th largest patent portfolio of any domestic US company and the 15th largest of any company in the
`world.
`Although size is important in understanding the nature of the shift, size alone is not the issue. It
`is also the method of organization and the types of activities that are causing a paradigm shift in the
`world of patents and innovation.
`These entities, which we call mass aggregators, do not engage in the manufacturing of products
`nor do they conduct much research. Rather, they pursue other goals of interest to their founders and
`investors. Non-practicing entities have been around the patent world for some time, and in the past,
`they have fallen into two broad categories.1 The first category includes universities and research
`laboratories, which tend to have scholars engaged in basic research and license out inventions rather
`than manufacturing products on their own. The second category includes individuals or small groups
`who purchase patents to assert them against existing, successful products. Those in the second
`category have been described colloquially as “trolls,” which appears to be a reference to the
`children’s tale of the three billy goats who must pay a toll to the troll waiting under the bridge if they
`wish to pass. Troll activity is generally reviled by operating companies as falling somewhere between
`extortion and a drag on innovation.2 In particular, many believe that patent trolls often extract a
`disproportionate return, far beyond the value that their patented invention adds to the commercial
`product, if it adds at all.3
`The new mass aggregator, however, is an entirely different beast. To begin with, funding sources
`for mass aggregators include some very successful and respectable organizations, including
`manufacturing companies such as Apple, eBay, Google, Intel, Microsoft, Nokia, and Sony, as well as
`academic institutions such as the University of Pennsylvania and Notre Dame, and other entities
`such as the World Bank and the William and Flora Hewlett Foundation. Nations such as China,
`France, South Korea, and Taiwan even have their own mass aggregators to varying degrees.
`Moreover, the acquisition appetites and patent supply sources are quite interesting. Mass
`aggregators may have portfolios that range across vastly different areas of innovation from
`computers to telecommunications to biomedicine to nanotechnology.4 In some of the acquisition
`
`
`1 Sannu K. Shrestha, Trolls or Market Makers? An Empirical Analysis of Nonpracticing Entities, 110 COLUM. L. REV. 114, 115
`(“NPEs are firms that rarely or never practice their patents, instead focusing on earning licensing fees.”); U.S. FED. TRADE
`COMM’N, THE EVOLVING IP MARKETPLACE: ALIGNING PATENT NOTICE AND REMEDIES WITH COMPETITION, 2011 WL
`838912 at 60 (2011), available at http://www.ftc.gov/os/2011/03/110307patentreport.pdf (“NPE also commonly refers to firms
`that obtain nearly all of their patents through acquisition or purchase in order to assert them against manufacturers.”); see also
`Colleen V. Chien, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, 87 N.C. L. REV.
`1571, 1572 (2009).
`2 Chien, supra note 1 at 1577-78 (“The term NPE generally refers to a patentee that does not make products or ‘practice’ its
`inventions.”); Jeremiah S. Helm, Comment, Why Pharmaceutical Firms Support Patent Trolls: The Disparate Impact of eBay v.
`Mercexchange on Innovation, 13 MICH. TELECOMM. & TECH. L. REV. 331, 333 (2006) (distinguishing between universities and
`patent trolls); Mark A. Lemley, Are Universities Patent Trolls?, 18 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 611, 629-30 (2008)
`(distinguishing between universities as non-practicing entities and trolls); Gerard N. Magliocca, Blackberries and Barnyards: Patent
`Trolls and the Perils of Innovation, 82 NOTRE DAME L. REV. 1809, 1810 (2007) (“‘[P]atent troll’ . . . is a derogatory term for firms that
`use their patents to extract settlements rather than license or manufacture technology.”); see also Jay P. Kesan, Transferring Innovation,
`77 FORDHAM L. REV. 2169, 2193 (2009) (cautioning universities against appearing troll-like because patent trolls are perceived
`unsympathetically).
`3 See Lemley, supra note 2, at 613-14; Magliocca, supra note 2 at 1810 (“Critics claim that these firms are little more than
`blackmailers who put a crippling tax on productive enterprises.”).
`4 Pharmaceuticals seems to be the one technical area generally excluded from mass aggregation, perhaps because the
`pharmaceutical innovation system has evolved to include lesser degrees of technical sharing.
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`Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
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`Robin Feldman & Tom Ewing: The Giants Among Us
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`activity, mass aggregators purchase large chunks, and even the majority, of an operating company’s
`patents and patent applications. They typically pay cash up front, as well as a share of any future
`profits generated from asserting the patents against anyone other than the selling manufacturer. Mass
`aggregators have engaged in other unusual acquisition approaches as well, including purportedly
`purchasing the rights to all future inventions by researchers at universities in developing countries.
`Other acquisition approaches purportedly include targeted purchases of patents that are of particular
`interest to the mass aggregators’ investors.
`The types of returns promised to investors and the types of benefits offered to participants are
`also quite different from garden-variety non-practicing entities, as are some of the tactics used in
`organizing the entities and in asserting the patents. Finally, the scale itself is simply mind-boggling.
`Mass aggregators operate on a scale and at a level of sophistication and complexity that would have
`been unimaginable a decade ago. They have taken the prototype strategies pioneered by a prior
`generation of non-practicing entities and changed them into some of the cleverest strategies yet seen
`in the intellectual property rights field.
`The goal of this article is to shed some light on mass aggregators. We hope to provide some
`understanding of the nature of the change, to analyze its economics and implications, and to offer
`some normative considerations. In the descriptive section, we focus on the oldest and largest of the
`mass aggregators, Intellectual Ventures, which has gone to great lengths to maintain secrecy.
`Working from public sources and investing thousands of hours of research, we offer a detailed
`picture of the entity, tracing through approximately 1300 shell companies and thousands of patents.
`The section also describes in brief form several other mass aggregators, including ones that are public
`companies.
`In the analytic section, we examine the potential implications of mass aggregators for the patent
`system specifically, for innovation in general, and for the economy as a whole. We look at the
`potential positive effects that mass aggregators might bring, including facilitating appropriate rewards
`for forgotten inventors, creating a market to connect innovators with those who can manufacture
`their inventions, and, most important, operating as a form of insurance—something akin to an Anti-
`Troll defense fund.
`On the other side, we look at the potential economic dangers of mass aggregators and the
`market for patent monetization they create. Given the imperfections of the patent system and the
`odd characteristics of the product created by the market for patent monetization, mass aggregators
`may serve as a tax on current production that reduces future innovation. Characteristics of the
`market may also provide opportunities for anticompetitive behavior.
`Finally, we offer a few preliminary, normative observations on whether and to what extent the
`sovereign, in the form of various governmental bodies, should become involved in these market-level
`changes. The section also considers broadly the types of changes that would have to occur for such
`participation to take place in a meaningful and minimally disruptive fashion.
`
`I. FACTS
`
`Over the last five years, information about mass aggregators has slowly filtered out into the
`patent community. Initial information was fueled largely by speculation as well as quiet, oblique
`comments from those bound by confidentiality agreements or concerned about incurring the wrath
`of the aggregators. As a reporter researching one of the mass aggregators noted as recently as July
`2011,
`[W]e called people who had licensing arrangements with [Intellectual Ventures], we called
`people who were defendants in lawsuits involving [Intellectual Ventures] patents, we called
`every single company being sued by Oasis Research. No one would talk to us.5
`
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`5 Alex Blumberg & Laura Sydell, This American Life: When Patents Attack (National Public Radio broadcast, July 22, 2011)
`(transcript available at http://www.npr.org/blogs/money/2011/07/25/138576167/when-patents-attack)
`(noting
`that
`the
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`We encountered similar reticence when we first began trying to understand the structure and
`activities of aggregators. “You can’t find out anything about them; don’t even try,” is a chant that has
`been whispered in intellectual property circles for a number of years. It motivated us to take a hard
`look, and the information eventually unraveled like the yarn from an old sweater.
`A literature search on Intellectual Ventures reveals many opinions about the company but few
`independent facts. We have aimed to fill that void by tracing the intellectual property assets that the
`company appears to own, identifying the sources of those assets, and describing the company’s
`activities. The data we provide here is the result of four years of painstaking research, piecing
`together bits of information available from public sources.
`
`A. Intellectual Ventures
`
`Much about Intellectual Ventures is shrouded in secrecy. Intellectual Ventures has acknowledged
`that it intentionally withholds the true scope and nature of its IP portfolio.6 Its licensing transactions
`and interactions are protected by strict nondisclosure agreements, and the structure of its business
`activities makes it difficult to get a handle on the full extent of its activities. For example, our
`research has identified more than a thousand shell companies that Intellectual Ventures has used to
`conduct its intellectual property acquisitions, and it has taken considerable effort to identify these.
`The range and scope of its activities are so vast that it is difficult to conceptualize the reach of
`Intellectual Ventures.
`Intellectual Ventures was founded in 2000 by Nathan Myhrvold and Edward Jung, both of
`whom formerly served in high-level positions at Microsoft.7 Peter Detkin also played a key
`management role in developing Intellectual Ventures.8 In one of patent law’s great ironies, Detkin
`coined the derogatory term “patent troll” during his tenure as the chief intellectual property officer at
`Intel.9
`Although operations began in 2000, Intellectual Ventures does not appear to have begun its
`massive patent acquisitions in earnest until somewhere around 2004 or 2005, when the annual
`number of acquisitions transaction we could identify rose from a handful to several hundred.
`According to Intellectual Ventures, invention per se is its product, and both Myhrvold and Detkin
`have referred to the company’s business model as “Invention Capitalism.” They define Invention
`Capitalism as applying concepts from venture capital and private equity to develop and commercially
`exploit new inventions.10
`Although Intellectual Ventures is designed to make money from trading in patent rights, the
`founders describe their activities as ones that will incentivize research and development in all
`technical subjects. Myhrvold, for example, has been quoted as saying the following:
`Most of people think of research as a charity, a philanthropic thing. They don’t view it as a
`for-profit venture. So our goal is to make research something you can invest in. I think it’s
`
`reluctance was fueled in part by fear and in part by Intellectual Ventures’ nondisclosure agreement, rumored to be the strictest in
`Silicon Valley).
`6 See Victoria Slind-Flor, The Goodfellas: Detkin and Myhrvold on Patents, Trolls & Intellectual Ventures, 19 INTELL. ASSET MGMT.
`28, 34 (noting that Intellectual Ventures will not reveal how many patents it has or the entities to which it has licensed technology,
`and quoting Myhrvold’s response that “We’re a private company. We don’t disclose our investment plans any more than Warren
`Buffet does.”); see also Steve Lohr, Turning Patents into ‘Invention Capital’, N.Y. TIMES, Feb. 18, 2010, at B1 (paraphrasing Myhrvold as
`saying that Intellectual Venture’s “penchant for secrecy” is a legacy from its startup days when it “did not want to tip its hand”).
`7 Intellectual Ventures LLC was formed on September 21, 1999. Corporations Division – Registration Data Search, WASH.
`SEC. OF STATE, http://www.sos.wa.gov/corps/search_detail.aspx?ubi=601981783 (last visited Nov. 15, 2011). Nathan Myhrvold
`formerly served as Microsoft’s chief technology officer, and Jung served as Microsoft’s chief architect. Our Team, INTELLECTUAL
`VENTURES, http://intellectualventures.com/WhoWeAre/OurTeam.aspx (last visited Nov. 15, 2011).
`8 Detkin joined Intellectual Ventures in 2002. Peter N. Detkin, Leveling the Patent Playing Field, 6 J. MARSHALL REV. INTELL.
`PROP. L. 636 n.* (2007), available at http://www.jmripl.com/Publications/Vol6/Issue4/Detkin.pdf.
`9 Id. at 636 (stating that he coined the term); Brenda Sandburg, You May Not Have a Choice. Trolling for Dollars, THE RECORDER
`(July 30, 2001), http://www.phonetel.com/pdfs/LWTrolls.pdf (using the term and attributing it to Detkin).
`10 See Detkin, supra note 8, at 636 n.*; Lohr, supra note 6 (citing Nathan Myhrvold); Nathan Myhrvold, The Big Idea: Funding
`Eureka, HARVARD BUSINESS REVIEW, Mar. 2010, at 40, available at http://hbr.org/2010/03/the-big-idea-funding-eureka/ar/1.
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`Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
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`a valuable investment if you know what you’re doing. So we think that if we supply capital
`and expertise in the right way then we can make a hell of an investment and if we are
`successful at doing it, the net research budget will go up.11
`The scope of Intellectual Ventures’ activities is so vast that it is difficult to contemplate the reach
`of the company. It has invested in innovations and technologies across a broad spectrum of
`industries—everything from computer hardware to biomedicine to consumer electronics to
`nanotechnology. In more than 1,000 transactions, by our count, the company has acquired
`inventions and related intellectual property from individual inventors, corporations of all sizes,
`governments, research laboratories, and universities.
`Getting a handle on the scope and activities of an entity as secretive as Intellectual Ventures is
`not easy.12 We have tried to create a picture of the company by piecing together information from
`publicly available sources. These sources include the patent assignment records of the United States
`Patent and Trademark Office (USPTO); the USPTO’s PAIR database,13 which includes the file
`histories of patents; the USPTO’s patent and application database; government records for key
`states, including Delaware, Nevada, Washington, and California; Internal Revenue Service filings for
`non-profit entities; Securities and Exchange Commission data from 10Q and 10K filings by
`corporations; the Federal Register; filings made in dozens of litigations; and press releases and other
`publications from various entities.
`The structure of the Intellectual Ventures network of operations makes it tremendously difficult
`to detect and trace the company’s activities. For example, Intellectual Ventures has acknowledged
`that it uses shell companies for purchasing and holding patents, although it has not publicly identified
`the number of shells or their names.14 In 2006, one magazine identified 50 shell companies that it
`believed were being operated by Intellectual Ventures. Our research has pieced together 1276 shell
`companies associated with Intellectual Ventures. We do not believe that we have identified all of the
`Intellectual Ventures shell companies, but these 1276 companies alone hold roughly 8000 US patents
`and 3000 pending US patent applications as of May 2011.15
`Even with some knowledge of the shell companies, tracking the Intellectual Ventures portfolio is
`complicated by the fact that Intellectual Ventures has at times neglected to record its ownership for
`long periods of time. In some cases, for example, we found parties indicating that they had sold or
`licensed patents to Intellectual Ventures—even to the point of identifying the intellectual property
`with great particularity—but we could not locate a corresponding assignment in the USPTO
`database.16
`Although Intellectual Ventures has never divulged the precise nature and extent of its portfolio,
`the company has reported that it holds some 35,000 “invention assets.”17 The company does not
`define the term, but we assume that this phrase refers not only to patents but also to patent
`applications, non-filed invention disclosures,18 design patents, trademarks, and any trade secrets
`
`11 Nathan Myhrvold, Speech at the Churchill Club in Palo Alto, CA (Feb. 27, 2007).
`12 Credit for this exhaustive research goes to co-author Tom Ewing.
`13 PAIR stands for Patent Application Information Retrieval.
`14 See Slind-Flor, supra note 6, at 32 (quoting Peter Detkin as acknowledging that Intellectual Ventures uses shells for
`acquisitions and noting that many companies do this to keep potential liabilities of the acquired company from affecting the whole
`organization).
`15 At least 175 of the patents acquired by Intellectual Ventures have reached the end of their terms and expired. Likewise,
`many more of their patents will expire in just a few years. We have not checked patent maintenance fee payment information to
`determine if any of the other patents have expired due to failure to pay maintenance fees. In any event, the “active” US portfolio is
`likely a bit smaller than suggested by the numbers above.
`16 In one case, Intellectual Ventures opted not to record a change of ownership for 2506 days following execution. An
`assignment for US Publication No. 20090254972 was executed on Aug. 9, 2002, but not recorded until June 19, 2009. See , USPTO
`ASSIGNMENTS ON THE WEB, http://assignments.uspto.gov/assignments/?db=pat (search “Publication Number” for
`“20090254972”).
`17 Press Release, Intellectual Ventures, BlueCat Networks Signs Patent Agreement With Intellectual Ventures (June 28, 2011),
`available at http://intellectualventures.com/newsroom/pressreleases/11-06-
`28/BlueCat_Networks_Signs_Patent_Agreement_With_Intellectual_Ventures.aspx.
`18 The company has claimed to have some 3000 unfiled invention disclosures. See Tom Ewing, Inside the World of Public
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`Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
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`owned or licensed by the company. Further confusing the issue is whether the company counts as
`“invention assets” patents or only patent families. The company also is not clear about where these
`assets exist, but we assume that this number represents the company’s worldwide portfolio. If the
`35,000 number were to represent the company’s United States portfolio alone, Intellectual Ventures
`would hold a portfolio larger than IBM’s United States portfolio, which is generally acknowledged as
`the largest domestic portfolio.
`To give a fuller picture of precisely what Intellectual Ventures owns, we assembled as much
`information as possible from public sources on the company’s holdings that are actually patents. To
`summarize the information below, we estimate that Intellectual Ventures has a worldwide portfolio
`of 30,000-60,000 patents and applications as of May 2011. This would mean that in just a few short
`years, Intellectual Ventures has acquired at least the 5th largest patent portfolio among US companies
`and approximately the 15th largest patent portfolio worldwide.19
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`B. Patents and Applications Held by Intellectual Ventures
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`With a great deal of digging, we were able to locate 1276 shell companies and related entities that
`appear to be associated with Intellectual Ventures.20 These companies hold approximately 8000 US
`patents and 3000 pending US patent applications. We do not believe that we have found all of the
`shell companies.21 Nevertheless, we believe we can calculate a reasonable approximation of
`Intellectual Ventures’ patent holdings. The overall size of Intellectual Venture’s portfolio can be
`estimated in several ways based on the information that we have obtained. The estimate below comes
`from what we have learned about these 1276 shell companies.22
`We begin by using information about Intellectual Venture’s shell companies. First, we have
`identified some 50 shells that appear to serve a management function, one shell that serves a
`trademark function, a dozen or so that serve investment functions. Of the remaining 1200
`companies, 954 companies have patents recorded against their names, and some 242 shells do not
`have patents recorded against their names, although some of them clearly hold licensed-in patent
`rights.
`We have noticed that Intellectual Ventures has a pattern of establishing a shell to receive assets
`well before the transaction related to those assets has been completed. Thus, we suspect that at least
`some of the 242 companies without patents recorded against their names are awaiting allocation of
`assets from a patent-related transaction. We suspect that others have already experienced a patent-
`related transaction, but that the transaction has yet to surface in the public record. For example, if
`Intellectual Ventures receives an exclusive license to a patent, the effect would be similar to owning
`the patent outright, but the parties would not necessarily record a change of patent ownership with
`
`
`Auctions, 42 INTELL. ASSET MGMT. 67 (2010).
`19 Patent holdings are difficult to compare and rank because, among other things, to be completely accurate, one must
`account for patents expired on the basis of age and/or failure to pay annuity/maintenance fees.
`20 The shell companies that we know about seem to serve the following functions: 1201 patent holding shells, 1 trademark
`holding shell, 51 asset management shells, and 24 executive and investment shells. See Appendix C for a further discussion of
`research methodology.
`21 As noted elsewhere, we have found approximately 100 other companies registered in Delaware that appear to be shell
`companies but do not presently hold patents. We will continue to monitor these companies.
`22 The size of Intellectual Ventures’ portfolio can also be estimated based upon how much the company has spent acquiring
`this portfolio and how much they have spent per patent. As an arbitrage buyer, one could assume that Intellectual Ventures spends
`roughly the same amount per patent in all of its purchases. Myhrvold reported that Intellectual Ventures had spent $1.163 billion
`acquiring patents by May, 2009. Nigel Page, IV Shifts Gear, 36 INTELL. ASSET MAG. 9, 10 (2009). In a study of Ocean Tomo patent
`auctions, we concluded that Intellectual Ventures had spent a little more than $61 million acquiring 410 US patents and their
`foreign counterparts at an average cost of $148,966 per US patent obtained. Tom Ewing, Publicly Auctioned Patent Buyers, 34
`AVANCEPT (2010). Some published reports have said that Intellectual Ventures pays only $40,000 per patent. Page, supra at 13.
`Application of this information combined with additional information about the growth of Intellectual Ventures’ portfolio since
`May, 2009 leads to an estimated US portfolio of 10,149 US patents and 27,649 foreign patents by May, 2011 along with several
`thousand pending applications worldwide. This second estimate fits well with the estimate based upon analysis of patent-holding
`shell companies.
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`Copyright © 2011 Stanford Technology Law Review. All Rights Reserved.
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`the USPTO, especially if the recipient of the exclusive license believed it highly unlikely that the
`registered patent owner would resell the patent to someone else.
`The 954 shell companies that have patents recorded against their names have an average of 8.5
`patents and 3.2 patent applications per company. Assuming that the other 242 shell companies
`contain unrecorded transactions, and applying these averages would yield another 2057 patents and
`774 applications. Adding these missing patents and applications to our totals would yield roughly
`10,000 patents and 3700 applications.23
`Intellectual Ventures also claims that it files roughly 500 applications per year and that it is now
`one of the top 50 US patent filers. The company is somewhat vague as to whether these 500
`applications comprise just those from its invention sessions or whether further filings24 from
`purchased portfolios are included in this total. In any event, given that patent applications publish 18
`months after filing, there should be roughly 750 presently unpublished patent applications as of May
`2011.25 Including unpublished applications keeps our estimate of US patents at