Five years ago, had you asked any Japanese head of IP what kept them up at night, you could have been sure that one of the first answers would be the threat posed by US-based NPEs. Ask them the same question now, and you will get a very different answer.
In their heyday, NPEs often saw companies from Japan with big product businesses as easy prey: they were conservative, defensive and did not like confrontation; so accuse them of patent infringement and the likelihood is that they would pay to make the threat of litigation go away. That’s why Japanese businesses were always towards the top of the rankings as defendants in NPE suits.
Talk to senior IP executives working inside Japanese corporates today, though, and NPEs do not come up in the conversation. Press them to explain why and they’ll tell you that they simply no longer have the business impact they once did. None of this will be a surprise to market watchers, but the fact that even the highly cautious and reserved Japanese are talking openly in this way tells you plenty.
Countless data points show steady declines in US patent litigation since 2015, including a significant fall in NPE assertions. As all IAM readers know, big changes in the US judicial and legislative landscapes have significantly affected the patent dynamic. Undoubtedly, it has made it harder and more expensive for NPEs to use a fear of litigation to force companies to take licences and that means far fewer headaches for the people who run corporate IP groups in Japan.
Once assertive entities like Intellectual Ventures and Acacia have closed their Tokyo offices, others have decided to move out of the patent space altogether, while a number of previously active players have simply gone out of business. Demand letters are no longer landing on desks in the way they once did.
But it’s not just that there are fewer NPEs than there used to be; there has also been a change inside Japanese corporates themselves. Patents are no longer just defensive rights gathering moss in huge portfolios existing solely to secure freedom to operate; instead, they are becoming positive assets – used to enable deals, generate revenue and to exclude competitors.
So, if it is not NPEs, what is disturbing corporate IP sleep? In recent conversations IAM has had with senior IP executives in Japan, it has become clear there is not one all-encompassing concern. Instead, it really depends on the specific industry.
For example, in the auto space how to reduce out-bound licensing spend is the top priority; that includes negotiating lower royalty fees with individual patent owners, as well as making sense of schemes provided by various patent pools - they are keen to identify good partners with which to form IP-based collaborations.
However, for electronics and established technology companies, the challenge is more about disposing of non-core assets to free up more capacity and cash to explore new areas. For some others, meanwhile, the most pressing issue is flipping from traditionally defensive plays to being more aggressive in the active enforcement of rights.
As the NPE threat recedes, competitor litigation may become a more prominent risk. Intra-Japanese patent disputes were once unheard of – but as this blog reported yesterday, two such conflicts have popped up in as many weeks. Just look at the list of Japanese firms who have filed US suits in the past fortnight and it is clear that change is afoot. Assertion entities may be fading from view, but for Japan’s corporate IP leaders undisturbed sleep is as far away as ever.