BlackBerry (BBRY) is at a crossroads, and the investment community is very interested to see what comes next. The profits are down and the board of directors just announced to the world that they are exploring strategic alternatives to enhance value and increase scale. Are they ready for a takeover? Or is there something else up their sleeve?
As patent litigators, we may be predisposed to fixate on patents, but when it comes to BlackBerry, the company's patent portfolio may be exactly the bulldozer the company needs to clear a path towards a more profitable future or a winning sale. It is hard to see an end game for BlackBerry whereby the company's patent portfolio does not play a large role. Unsurprisingly, the media calls for the company to start monetizing its portfolio are beginning to get louder. In our opinion, BlackBerry's patent position is a strong one, and gives the company a number of options to consider as it plots its path forward.
Let's think for a moment about recent megabucks patent portfolio acquisitions, and imagine a scenario where BlackBerry puts its patents up for outright sale. Because BlackBerry's business is still ongoing, and the company has assets other than its patents to exploit, we think a comparison to a company like Kodak (which had a disappointing market response to its patents) is unfair. A better comparison in our view would be to Motorola, whose acquisition by Google remains the poster child for patent value creation. Of course, anyone aspiring to sell a patent portfolio in the billions, which is surely the type of valuation BlackBerry would be seeking, is necessarily marketing to a small group of potential buyers. A huge private-equity fund, for example, could be enticed by the potential of monetizing BlackBerry's patent portfolio. Yet it is less likely to be as excited about investing billions in the hopes that the company can reassume a dominant position on the smartphone sales charts. In any event, investors should realize that BlackBerry's patent portfolio is valuable in two ways: a) it makes the company more attractive as a takeover target, and b) it can be used to generate revenue. Real revenue, right away.
There are two primary reasons that BlackBerry can easily morph into a must-be-reckoned with force in the patent assertion game. For one, it has a huge and still growing portfolio. And second, it should have no problem picking the combination of patents, targets, and lawyers that lead to big jury awards and settlements. Considering the exploding market interest in patent play investments, one can only imagine the impact on the sector should BlackBerry announce that it is adopting an offensively-oriented patent monetization strategy. We submit that the stock would immediately become a must-own for anyone interested in this space, because BlackBerry offers possibilities to satisfy any investment thesis (boom-or-bust a la VirnetX (VHC), serial licensing a la Acacia (ACTG)) that investors bring to bear when evaluating patent investments.
BlackBerry's Homegrown Patent Portfolio is Large, Young, and Growing
BlackBerry's patent portfolio dwarfs that of other patent plays we are bullish on including Marathon Patent Group (MARAD.OB) and On Track Innovations (OTIV). Even larger cap patent plays like ParkerVision (PRKR) and Vringo (VRNG) can't compete with BlackBerry when it comes to the breadth and depth of their patent portfolios. Investors should consider each patent as a deployable (albeit wasting due to patent expiration) asset. A company with more patents has more options, and presents a more formidable litigation foe. There is no doubt that BlackBerry could go toe-to-toe with any company in the world in the patent litigation arena. And taking an offensive approach while leveraging the willingness of top litigation counsel to work on full or partial contingency gives patentees an advantage from the get go. The list of litigators, ourselves included, who would love to have a crack at monetizing even a small part of BlackBerry's portfolio would undoubtedly be a long one.
As noted in two informative recent blog posts, here and here, BlackBerry's portfolio of patents is deep, broad, young, and growing. We reviewed some of its key holdings as well. There is plenty of raw material to work with for anyone helping the company devise a winning patent monetization strategy.
BlackBerry's Patents Should Have Jury Appeal
As patent litigators, one of the things we instinctively consider is the jury appeal of our clients, and how best to tap into whatever goodwill a company has garnered in the collective conscious when presenting their case in Court. Even so-called patent troll lawyers are sensitive to this issue, and often try and present their client in a favorable light, often by pushing a David v. Goliath theme against the large corporate defendants they seek big verdicts from. Such appeals are often married to frequent references to the Constitution and the recognition by our Founders that patents are an important means of fostering innovation. How effective these types of arguments are is impossible to measure precisely, but they are usually the best a patent troll can do.
For at least four reasons, BlackBerry would be starting in a much better position jury appeal-wise compared to your average patent troll, should the company decide to try and monetize its patent portfolio through litigation:
1) Even though BlackBerry's hardware has fallen out of favor relative to its former dominant position, it is safe to assume that anyone on a jury would have either owned or used a BlackBerry themselves for work, or had a family member who did. And the general reputation of BlackBerry devices seems to have always been favorable, in that they were considered durable and performed their key function better than anyone (in a category they pioneered and mainstreamed for corporate America -- wireless push email). For the better part of a decade, a BlackBerry was as much a work tool for corporate employees as a hand saw is for a carpenter. Unlike other staple technology devices displaced by improved technologies, such as DVDs replacing videotapes, in many circles BlackBerries, especially those with physical keyboards, are still considered the gold standard for heavy mobile email use. Unfortunately for BlackBerry, people started looking at their phones more as entertainment devices, but that public shift in tastes should not impact on a jury's perception of BlackBerry as a company that made serious products for business.
2) In addition to BlackBerry's reputation as a provider of a business tool, it would also be a mistake to ignore the goodwill the company has generated through its instant messaging service BBM. For many potential jurors, BBM was a primary way of communicating with family in real-time. What BBM's success and market penetration allows counsel to do in front of a jury is two-fold: a) highlight BlackBerry's innovations on both the hardware and software fronts, and b) de-corporatize the company a bit by reminding people of offerings that made a difference in people's personal lives. Very few trolls can tap into such powerful arguments when discussing patents they have acquired. Of course, the more BlackBerry itself stands behind its assertion efforts (as opposed to farming out parts of its portfolio to others to assert, e.g., Nokia (NOK) and Vringo's arrangement) the more powerful such appeals can be.
3) Unlike trolls who can only ask for money but usually have no record of respecting IP rights themselves, BlackBerry is actually famous in patent circles for being the highest-profile victim of a troll lawsuit itself. While the $612.5 million settlement the company paid to NTP in 2006 to settle its patent case undoubtedly hurt the company then, it can now be spun in BlackBerry's favor in front of a jury in a case filed by BlackBerry. One of the most difficult things a patent litigator needs to do is to condition a jury to start thinking big in terms of awarding damages, and then actually getting the jury to buy the damages case put forward at trial. It could only help BlackBerry if its counsel could remind the jury that when BlackBerry realized after a fair fight that it should pay up for using another companies' IP, that is exactly what the company did. And that the company being sued by BlackBerry should be as responsible as Blackberry was willing to be when it was in the same position.
4) As discussed above, BlackBerry has a lot of patents and a documented history of innovation. Unlike trolls that are often selling "what-if's?" with respect to their supposed innovations, BlackBerry can draw a direct line between its R&D and products used by millions on a daily basis. That is powerful stuff, especially when combined with trial proof that the alleged infringer is profiting off technology BlackBerry developed, and has the means to satisfy the bill for that use.
For at least these reasons and others, BlackBerry's trial counsel should be able to position the company favorably in the eyes of any jury they are seeking to influence. For investors, this is a crucial factor to consider when evaluating BlackBerry's prospects as a "patent play." Outsized returns generally result from potential or actual big awards and settlements. On the big awards side, the benefits of having a jury view a company plaintiff sympathetically are obvious. What is less obvious is the effect that positive jury perception can have on driving big settlements. Two of the biggest contributors to large patent settlements are the existence or possibility of a big jury award (see NTP and BlackBerry for an example of how the former resulted in one such settlement) and the threat of interminable litigation on a robust patent portfolio. BlackBerry surely has the latter, and can reasonably count on at least a good chance of the former happening in the hands of skilled counsel.
Ultimately, there would be a lot for investors to get excited for if BlackBerry decided to deploy its patent arsenal. The company already has the assets, and the question is whether it will have the will. If it does, the game plan is straightforward. One, announce the strategic shift publicly and frequently. Put potential targets on notice and excite the investor base. Start getting the message out that the company considers its patent portfolio very valuable, and will be taking steps to ensure competitors can't use BlackBerry's innovations for free. Next, the company should decide whether it wants to become a "pure" patent play and divest any and all non-patent assets. Either way, the company should immediately use internal or external resources to help develop and execute on a patent monetization strategy. When it comes to its patents, the more BlackBerry does, and the less it sits around while it considers what to do, the better.