Boston University Goes Big Game Hunting

All of the non-practicing entities who have been taking a beating over their business models lately must be enjoying this week's patent litigation developments.

Boston University filed a patent infringement lawsuit against Apple asserting an 18 year old invention. The same Boston University whose legal scholars published the oft cited and passionately embraced finding that NPE patent assertions are substantial, totaling about $29 billion accrued in 2011 alone. We are having a hard time keeping a straight face.

This latest development adds a new level of complexity for public policy people trying to figure out how to balance the impact of patent assertion and infringement law suits on operating companies by non-pracicing entities and the rights of patent owners to monetize their patent assets.  Universities are joining the leagues of organizations that don't manufacture anything but sue for patent infringement.   The potential paydays may be too big for university patent owners to ignore.

Read the latest post here.

Google's Latest Search Questions

As anyone working in the world of patents knows, the vast majority of transactions are shrouded in secrecy.  Transactions generally start with non-disclosure agreements and end with agreements with non-disclosure clauses.  From the real person of interest (lawyer speak for the person who really owns the patent) to the address of the owner, to the terms of a license agreement everything happens behind closed doors.

Enter Google, a firm that no doubt has signed its share of non-disclosure agreements while navigating the patentsphere.  The firm makes no secret of its outrage over the activities of patent assertion entities (PAEs).  In their latest comments on patent trolling and privateer business models sent to the Federal Trade Commission (FTC) it asks the FTC to investigate how these nefarious privateer business models operate.  Patent privateering is where a company that makes things - an operating company - teams up with a non-practicing entity (or creates an entity for that purpose) and then go after infringers rather than file infringement lawsuits themselves.  Here are the questions buried in the Google FTC comments:

• How prevalent is the outsourcing of patent enforcement by operating companies to PAEs?
• What types of arrangement have PAEs and operating companies consummated?
• What motivates these arrangements?
• What are the likely competitive harms and benefits of patent outsourcing?
• What are the competitive implications of the secrecy with which many PAEs conduct their operations?
• Do the particular terms of outsourcing arrangements indicate that operating companies are employing PAE proxies as competitive weapons?

Most of the questions can be answered with, wait for it, a Google Search.  

Some of the answers to the questions are obvious: What motivates these arrangements? Making money.  Having non-correlated assets turned into cash without having them impact the bottom line.

And some seem kind of disingenuous for a firm that dominates its market space and it behavior as it moves into new markets questions as monopolistic - Do the particular terms of outsourcing arrangements indicate that operating companies are employing PAE proxies as competitive weapons?

And while Washington is awash in sequestration commentary and vitriol on the effectiveness of government employees, it seems a little simple minded that Google and its commenting buddies (Red Hat, Earthlink, and Blackberry) to put forth such simplistic questions before an organization that put on one of the most sophisticated and informed discussion on the subject matter as part of it's December 10th 2012 Patent Assertion Entity Workshop with the Justice Department.  Did Google send anyone?  Its was a veritable who's who of the Patent Bar (and a fashion parade for litigation wear and red ties.)  Blackberry doesn't discuss its purchase of the patents held by the Multimedia Patent Trust or it's pre-Google purchase of the mobile assets of Motorola, of the peace treaty between BBBY and MOTO.  Red Hat and Microsoft engaged in its own not dance on Linux related patents documented in Burning the Ships.  Earthlink has its own NPE stories.

As a very expensive subscription to Intellectual Asset Management and some pretty easy  Google searches reveal, the privateer business model is on the move and other PAE business models are here to stay.  

The Patentista Drops By

A Chat With The Patentista

Every now and then The Patentista drops by.  The Patentista stops by when the coffee is hot and there is something significant happening.

The Patentista is a knowledgeable sort who knows a great deal about the patent having been involved in all sorts of patent litigation and enforcement actions, hunting for technology to build patent portfolios for some of the major patent shops , doing obscure patent analysis and building classification tools, developing new licenses, finding expert witnesses, prosecuting patents, and helping sell off portfolios of otherwise distressed but one time brilliant companies.

The Patentista likes to opine on matters from the unique vantage point of someone who has made a career in the intellectual property world and who sees both the big picture and the arcane.

Our last conversation took place after the Federal Trade Commission—Department of Justice Patent Assertion Entity Workshop on December 5th, 2013.  It was a far reaching chat on a cold day in Washington — Is the patent system broke (we don't think so), what about non-practicing entities (Thomas Edison was an NPE and no one vilified him), what is with this new classification (Cooperative Patent Classification) System (aren't there enough of these that no one uses or understands - IPC, USPC, ECLA, Derwent), and how patents need to change as we move to a highly digital world (entrepreneurs and investors don't fully get the impact of convergence and patent licensing).  Over the next month or so we thought we'd bring you the highlights of our chat and some of the follow-up we did looking into the issues we discussed.  We hope it's a though provoking series on the patentsphere.

The Patentista's IP World View

The Patentista's world view is that the current state of affairs in the patentsphere guarantees full employment for patent attorneys as long as asymmetry exists between people who understand patents and the rest of the regular joe entrepreneurs, investors, venture capitalists and makers of products that may or may not to be covered by someone else's patents.  This is why non-practicing entities are here to stay and why things are likely to get worse before they get better.  The Patentista was on fire.

A Patent Cultural Aside

The conversation started with a cultural aside.

On the crowd at the Federal Trade Commission workshop on Patent Assertion Entities, a special breed of non-practicing entity and the lack of meaningful news coverage -- Patent attorneys don't Tweet.  They barely use email and are among the last profession in the universe to adopt business casual dress thus explaining the high suits and ties to jeans and blue shirts ratio at the FTC meeting.  As a group of people supposedly steeped in the latest science and technology, the assembled gaggle of patents attorneys are fellows (they were mostly fellows) who operate in a closed society and are perfectly happy to stay that way.  Information disclosure isn't helpful to them.  Dysfunction in the patentsphere is.  It means you need them.

Asymmetric Information

Then we moved on to the gist of the conversation - the asymmetric (one-sided) world of the Non-practicing Entity (NPE).

The Patentista isn't a fan of NPEs finding it difficult when one can't counter sue to keep things even.  The NPE business model is one of the try asymmetric ones.

According to the Patentista, plain old non-practicing entities are not the problem, well not the big problem, the patent hoarders are. (The Patentista said patent trolls but it's too early in the new year for pejoratives.)  The Patentista has had plenty of situations where Big Company #1 calls up Big Company #2 and says, "hey, we think you're infringing our  patented widget and you need a license."  These conversations generally ended with an agreement for an elaborate cross-licensing agreement on the technology and a more important "we'll see you in the marketplace" agreement.  The encounter ends with the business equivalent of let's step outside and fight it out.  The guy with the best product wins.  The Patentista believes in patents but also believes that while monetizing is good and getting the money is better that the best way to see if an invention is worth anything is to fight it out for market share and revenue.  (Well, most of the time.)

The Patentista's point is that what we all need to be worried about is patent hoarders.

On Patent Hoarders

Patent hoarders are extreme NPEs who own lots of patents.  A plain old NPE  has a few patents that are focused on a particular technology, the plain old NPE can make their case, and usually has at least some decent analysis to back up their infringement claim(s), as in, "please sign the enclosed non-disclosure and we'll be happy to send your our nicely formatted analysis of our patents in light of the publicly available information about your products."  Plain old NPEs usually have teamed up with the independent inventor(s) who don't have the money to enforce their patents (or at least they try to make it look that way).

The Patentista still isn't a fan of NPEs but feels it is  generally a more gentlemanly (not gentlewomanly as noted above) affair even though there are some scrappy moments.  The Patentista can figure out what the NPE has, can explain it to a deer-in-the-headlights, freaked out client, and can usually get to something that seems reasonable (maybe to the patentista if not always for the client) and get the client back to business (after reasonable fees of course.)

"But patent hoarders, now they are a big problem."

The Patentista's view is that patent hoarders are just like those people on the Hoarders cable TV show.  The TV hoarders start collecting stuff, what starts out as good stuff morphs into stuff that really isn't useful, piling it up all over the place until eventually you can't get into the house.  You simply can't tell what's good from what's junk.  An intervention is required to clean everything up and return things to some semblance of normal.

The patent intervention is the same kind of behavior when regular patent holding organizations stop paying fees on stuff they don't think they will ever us, usually after an emotional discussion on the topic right before the latest round of fees are due with their General Counsel and Chief Finance Officer as in, "what are we doing with all this stuff".

Patent hoarders assemble all kinds of patents in a particular domain - blocks of patents for wireless, medical devices, "the web", mobile, etc.  Whatever suits their fancy.  Some of the patents may be "standards essential" but a lot are "padding."   Eventually they have these huge patent portfolios full of maybe some good stuff but a lot of junk, marginal patents, patents with hundreds of prior art references and lots of inventors, stuff.  There may be something valuable in there but with all the piles, who can tell.  There tends to be a bad signal to noise ratio in NPE patent portfolios.  The difference between the TV hoarders and the guy with the dumpster and patent hoarders is patent hoarders have printers and offices where they crank out cease and desist letters and file lawsuits.

According to the Patentista, the patent hoarders don't curate, they go for volume and volume is the problem.  Patent hoarders whether they are plain old patent assertion entities or patent aggregators, they operate on volume.  Oh, and their patent attorneys can't do the Big Company #1, Big Company #2 dance because the patent hoarder isn't interested in such a relationship.

The other problem?  Who can analyze 100 patents (or more than 1,000) with an average of 20 claims against a portfolio of products without it taking a lot of time and a lot of money.  It's even better when the hoard of patents are in a domain known for fluid, sales-y (read flakey) vocabulary that is used to describe important elements of the technology.  Does anyone have a one sentence definition of "cloud-computing" "software as a service" "mobile" or web-based anything? - The Patentista points out that mobile computing has been in police cars for quite a while but that the new kids in the space never look there.

And then there's the issue of  patents with overly broad claims. (The Patentista admits to writing quite a few over the years.)  Maximalist on enforcement, minimalist on content.
Patent hoarders benefit from the digital business models and the emerging knowledge-based economy that lives and breathes on the internet.  It's a great formula: -

Lots of patents because filing electronically makes it easier for the patent factory,
Lots of claims,
Lots of emerging products, marketing-esque semi-technical lingo where even the market participants sometimes need a definition or two to advance the conversation, and
Lots of free cash flow from investors.

 But most important -  high margin products.  (58% percent on the iPhone vs. 5 or 6% on a desktop computer? Who can't afford another $0.50 per device?)

The Patentista points out that there aren't many patent hoarders or NPEs that own the patents and operate in the pharma, biotech, or chemistry space.  The domains have a standard vocabulary where everyone speaks the same language and know what a molecule is making buffalo-ing the little guy harder and defending claims of invalidity easier.

The Patentista then went into a long explanation on all the reasons you want this stuff covered by attorney/client privilege and don't want to do it in-house.  (See the note above about patent attorney full employment.)  We'll save the details of that part of the conversation for another post.

Then came the stifling innovation and patent litigation moment.  

When you take a license from a patent hoarder you don't really know what you bought or if you are fully covered as in do you now have a license to all the patents you will need so you can get back to selling your products.  The patent hoarder will sell you a license to their portfolio but can't provide the licensee with any kind of guarantee that another patent hoarder isn't going to come along with their hoard of un-curated stuff and do exactly the same thing.   Generally the patent hoarder can tell you what they own, a lot of stuff, but they can't explain all their holdings in light of the rest of the patents out there.  And you can't figure out their holdings either.  And now you've exposed yourself as a potential sucker who will take a license and go quietly into the night so bring on the lawsuit as a measure of how serious the patent hoarder is and to slow things down to give you some time to figure out what you are going to do or at least make you look like a tough guy.

Patent hoarders just like every other patentista know that explaining a patent to a jury of regular joes is risky business.  It helps the negotiations if the jury selection phase is coming up soon.

Now The Patentista isn't taking a pro or con view on NPEs.  They are part of a robust patentsphere but they operate in new and different ways.  As the FTC-DOJ meeting proves, nothing is simple here.

The Bottom Line

So the bottom line is that NPEs and patent hoarders in particular are the beneficiaries of a very big knowledge gap and the information asymmetry that comes with it. (A view we share.)  They will continue to have an advantage and operate using their current methods until some game changing force levels the playing field.  The Patentista doesn't see such a change  on the horizon or arriving anytime soon.  Neither do we.

The Non-Practicing Entity Conundrum University Edition

When is an NPE not a patent troll?

On December 26th, the verdict in a patent infringement lawsuit was announced.  A nine member federal jury ordered Marvell Technology and its US operating subsidiary Marvell Semiconductor Inc. to pay $1.17 billion in damages to Carnegie Mellon University.   The patent infringement lawsuit was brought by Carnegie Mellon University.  The verdict came after a month-long trial in the U.S. District Court for the Western District of Pennsylvania in Pittsburgh, the home of Carnegie Mellon.  The jury decided that the infringement was willful which means that the judge can award triple damages potentially raising the verdict to over $3.6 billion.

Carnegie Mellon University sued Marvell (MRVL: NASDAQ) for infringement of two patents, 6,201,839 issued in 2001 and 6,438,180 granted in 2002.  The patents cover ways to filter out noise and unwanted electrical signals when detecting data stored on a computer hard-disk drive.

Marvell is based in Hamilton, Bermuda. Its U.S. operating unit Marvell Semiconductor Inc is based in Santa Clara, California.  According to Marvell's inventor relations page, Marvell ships over one billion chips a year. Marvell’s expertise in microprocessor architecture and digital signal processing, drives multiple platforms including high volume storage solutions, mobile and wireless, networking, consumer and green products (LED lighting). The firm has 5,700 employees with design centers and research and development operations around the world.  The firm's research and development expenses were $1,014 million, $898 million, and $828 million in fiscal years 2012, 2011, and 2010 respectively.  Marvell Technology is a practicing entity. The firm owns patents and uses patents to protect the product it makes.  Its most recent patent, 8,341,503, "Methods and systems for storing data in memory using zoning" , was granted December 25, 2012.

Marvell Technologies may need to issue shares to cover the judgement according to several financial news reports.

Carnegie Mellon University (CMU) does not manufacture disk drives or semi-conductors (chips.)  It's primary product is education and research.  It doesn't produce products based the technology it invents.  This makes CMU a non-practicing entity,  or, using the pejorative, a patent troll.

The patents involved in the case were granted in 2001 and 2002 respectively, both were based on a provisional patent application filed in May of 1997. Published articles on the invention from the inventors began appearing in 1998. The patents cover technology that is almost 16 years old. Older than most of the patents enforced by non-practicing entities according to the now urban legend patent troll study written by Boston University Law School professors Mike Meurer and Jim Bessen.

K&L Gates, the law firm representing Carnegie Mellon University, claimed that Marvell copied the University’s technology for allowing hard disk drives to read information from high speed magnetic discs.  The expert witnesses in the case claimed that the CMU invention was a foundational piece of technology and that the university had been deprived of the revenue stream from its invention.

The inventors, Aleksandar Kavcic, and Jose M. F. Moura do not own a business that produces the inventions disclosed in the patents. Both are academics and researchers.  The inventors and the resulting patents in the suit benefited from a National Science Foundation under Grant No. ECD-8907068. The inventors and the university had the benefit of taxpayer funded research.

So here we have a patent troll case in which the non-practicing entity is a major research university.  The home town jury in Pittsburgh determined that willful infringement of the home town university's patents took place. The media reports on the case make no mention of the fact that CMU is a non-practicing entity despite the significant drop in the value of the publicly traded company's stock upon announcement of the verdict.  As of this writing there is no, "patent trolls are stifling innovation" rhetoric.  None of the usual suspects are circling the wagons screaming that there are over a gazillion patents that you need to look at when you make a smartphone even though technology made by Marvell Technology is essential to the smartphone, mobile, data storage ecosystem.  No one is preaching the end of an industry because of those pesky patents.

So where does this leave us?

It leaves us with a reality that sometimes someone who owns patents but doesn't make stuff but enforces their patents is doing what is good and right and sometimes someone who owns patents but doesn't make stuff and enforces their patents is an evil doer stifling innovation.  The line is very hazy.  It depends on your vantage point and what side you are on.

The discussion of the monetization of patents and who can legitimately enforce patents without public outrage continues.

About the Reporting on the Verdict:

As of December 27, 2012 only Bloomberg.com included the patent numbers in their article along with a brief description of the invention.

None of the media reports on the case discussed the age of the patents or the technology being enforced.  None of the reporters or bloggers asked why it took so long for CMU to seek to enforce its patents.

The announcement caused a significant drop in the price of Marvell's shares did not cause much in the way of explanation of the patents, or the invention covered by the patents.

Patent Alphabet Soup - FTC, DOJ, PAE, NPE

DOJ and FTC to discuss PAEs aka NPEs.

The Federal Trade Commission and the Department of Justice will host a one-day event on Monday, December 10, 2012 in the FTC Conference Center to explore the impact of patent assertion entity (PAE) activities on innovation and competition and the implications for antitrust enforcement and policy. FTC differentiates between PAEs and non-practicing entities NPEs such as universities, hospitals, and post-doctoral research organizations.  Panelists for the workshop will include academics, economists, industry representatives, and private attorneys.   The agenda can be viewed here.

According to the Wall Street Journal, DOJ and FTC is looking at, specialized patent-holding companies as part of a broad review of how holders of patents use them as strategic weapons against competitors. In particular, the agencies have expressed concern about companies that make aggressive legal claims based on patents that are part of industry technology standards. Antitrust enforcers also are interested in mergers or acquisitions that result in large transfers of patents.  Federal regulators are grappling with the changing face of the patent business. Nowadays the specialized patent company that tries to wrest royalties from a big technology company might not be an independent enterprise. Rather, it might be the creation of other big companies.

The workshop will provide interesting insight into the current mindset within the anti-trust and consumer protection communities on the issues surrounding the business practices and economic impact of patent assertion entities (non-practicing entities like universities are apparently off the hook here.)

Indicia of Extortion — filing nearly identical patent infringement complaints against a plethora of diverse defendants where the plaintiff follows each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation. The term was used by Judge Lourie in the CAFC decision in Eon-Net LP v. Flagstar Bancorp.

Going on a Troll Hunt - The Study

First, unlike many of the "patent system is broken" prognosticators who foresee the death of innovation due to perceived innovation stifling and other nefarious activities of patent trolls, the pejorative term for non-practicing entities, Way Better Patents doesn't see impending invention doom.  What we see is a significant case of the economic impacts of asymmetric information.  Some organizations, practicing and non-practicing, benefit from having an asymmetric information advantage.  They know their way around the patent system.  They tend to sit on the "we're holding all the cards side" of the patent licensing negotiation and IP strategy negotiation while the rest of us don't have their patent picking or enforcement prowess.  This is not a crime but an operational reality in the patentsphere.  Or put another way, trolls are patent smart.

The Leahy-Smith America Invents Act (AIA) (P.L. 112-29) mandated the Government Accountability Office (GAO) to conduct a study on the consequences of patent litigation by non-practicing entities (NPEs) or patent assertion entities.

GAO issued a a Request for Quote for that study back in July 2012.  This looks like part of a larger 20 year study defined in the law.

The definition in play for the study says, "while the term NPE is not defined in the law, it generally refers to a wide spectrum of entities that own and assert patents but do not practice or produce (i.e. design, manufacture or distribute) products using the patented technologies."  In lots of industries these definitions are blurred by many complex business models and structures where practice and produce have many definitions.  Some of the largest NPEs are US and post-doctorate research organizations - they invent and patent but they rarely product the inventions they create.   They don't seem very trollish but we digress.

According to the RFQ GAO is going to buy three specific things:

One — A Patent Litigation Database
Access to a complete database of all patent infringement law suits. GAO wants to collect data on the volume of recent patent infringement litigation in the all 94 federal district courts from 2001 through 2011 (even though there are places in their RFQ that say "and the present" which implies 2012 cases as well. GAO wants access to all of the patent infringement cases filed in the International Trade Commission going back to 2001 as well. The database must ensure that all court filings and documents associated with a particular case are linked to that case and are not counted as separate events (i.e. procedural events, transfers of venue, etc.).

GAO want all suits including patent marking cases, trademark and declaratory judgement cases (cases of non-infringement, invalidity, or unenforceability) as part of the patent litigation cases.  (The presence of trademark cases seems a little odd here but we wanted to make sure that it was clear we didn't make this up.)  GAO wants the capability to slice and dice the cases by federal district, judge, case outcome and patent class. A surprising addition - actually trying to figure out what the technology in the case involves. It will be interesting to see how they define the different areas of the technology. Since many non-practicing entities use the US classification to determine the tranche (domain) for licensing fee calculation.

Oh, and the contractor is supposed to demonstrate to GAO that it has methods for ensuring that data are complete and free from errors. (Good luck with that free of errors one.)

Two — A Random Sample
Then the contractor is supposed to generate random sample of 100 patent infringement cases per year from the database for cases filed each year from 2007-2011. It looks like the vendor needs to extract that set and deliver the sample to GAO who will retain ownership of the sample. Depending on membership in the random sample will directly impact the outcome of the study.

Three — An Analysis
Then comes the analysis. The contractor will then identify the key characteristics of the litigants.  GAO expects, "For the sample of 100 cases per year, contractor shall provide an objective and auditable framework for characterizing the extent to which infringement claimants (patent owners) practice, or make products related to, the patents they are asserting." (Practice what? Plenty of firms that own patents practice licensing too.) It looks like GAO is going to have to have a framework of some kind to deal with the continuum of "practice" because just like Intellectual Ventures and GE sometimes a firm is an inventor and sometimes it's  licensee and at other times it is a NPE.

GAO will approve the framework methodology before making the contract award. (Another sign that GAO knows who will be doing the work since most government contractors won't bid on something unless the scope of work is defined.)

"Contractor shall employ legal analysts to identify key infringement claimant (patent owner) characteristics. Contractor shall analyze court documents, Securities and Exchange Commission filings, corporate websites, and other sources of data as necessary. Contractor must employ expertise in patent infringement litigation to identify evidence that is relevant to objectively characterizing litigants involved in each case. Contractor shall record these characteristics for each case in a Microsoft Excel file. GAO needs to be able to trace all characteristics back to supporting documents.

"Contractor's legal analysts shall compile the characteristics into a Microsoft Excel file and then have at least one other analyst confirm each characterization according to the objective framework." Lots of billable hours on this task.
For each suit in the sample, the contractor shall also report:

• Patent and Trademark Office patent classifications and patent numbers (Which ones - the USPC origin and cross references, the IPC? or the new Cooperative Patent Classification (CPC) symbols
• Number of Defendants per case
• Venue (which federal district court the suit was ultimately heard in)
• Characteristics of the alleged infringer (defendant) as per the above auditable and objective framework
• Outcome – Categories to be reported (with quotes from court records):
• i. whether the case settled and how long it took to settle (e.g. X months after litigation filed)
• ii. whether attorney fees or costs were awarded to one side;
• iii. case outcomes
• iv. whether there were Rule 11 (civil procedure) sanctions
• v. whether an injunction was granted
• vi. whether damages were awarded and how much

There are some other interesting gems in the RFQ:

The contractor has to have this work done by December 31, 2012. The expected award date is September 3 according to FedBiz Ops.

GAO wants the access to the data within two weeks of contract award. There were only two questions posed by potential contractors - not a sign that GAO is likely to get a broad range of responses from interested firms. (Either the fix is in or the data is coming from one of your favorite litigation reporting systems.  The RFQ and the very short response time implies that they know who they want to do the study.)

What is also interesting here is what is missing from the mix.

Patent litigation is generally a tool. File the law suit when the potential infringer doesn't want to talk then negotiate and settle when the specter of a multi-million dollar lawsuit looms. How will this be accounted for? How will the outcomes be described when most are covered by Non-Disclosure Agreements?

There doesn't seem to be any attempt to determine how the NPE acquired the patent. Was the patent acquired from a practicing entity who is working with the NPE on monetizing their intellectual property assets. (See the discussion on 'practice' above.) Firms like Acacia Research have a wide range of agreements with practicing entities to maximize the value of the practicing entities intellectual property. These relationships are important in understanding the true nature of the litigation and who the real players are. Just because you don't manufacture stuff doesn't mean you don't work for someone who does. Counting these as solely evil troll litigation seems to be a misrepresentation of the nature of the action and the business models.

How will the contractor determine the "real parties in interest"?

How will GAO determine the universe of NPEs and patent assertion entities? Many firms engaged in this work establish separate entities for each transaction not unlike real estate developers who want all their projects in separate business entities. There are plenty of legitimate reasons for these types of entities — and plenty that are solely for the purpose of obfuscating ownership.

How will GAO evaluate the age of the patents being enforced? The Boston University study on NPEs which has gained urban legend status in the patensphere  cited shows the average age of a patent in NPE litigation is over eight years old.

What about considering how many of these cases required Special Masters of some kind because of the complexity of the underlying inventions and science that form the foundation of the case?

What about licensing pools, such as the MPEG Licensing Authority that enforced the intellectual property rights of its members? It is clearly a non-practicing entity but it represents a very large universe of practicing entities.

How will publicly traded patent aggregators like RPX and firms like Acacia Research be evaluated. Both have different models for creating shareholder value (assuming that creation of shareholder value is still a good thing.)

What about taking into consideration the difference between highly structured industries like pharma and biomedical inventions (the chemical domain) versus the world of software, business methods and all things related to electrical and communication patents?

And finally, how will GAO combat patent urban legend like — Intellectual Ventures (IV) owns 40,000 patents — (at the time of this writing, there is a crowdsourced request for money out there looking to raise $80,000 to develop a comprehensive view of the IV patents; there are over 250,000 patents covering smartphones (Google's general counsel seemed to be counting all the claims in all the patents to come up with the total; that there have been more than 40,000 in troll related litigation; NPEs cost firms billions of dollars each year (see the Boston University analysis on that one) and finally, trolls hinder innovation.

This is clearly a difficult and challenging task. Hopefully the research and analysis will be equally compelling.  According to the RFQ the task is to be complete by December 31, 2012.  GAO will need to create and publish it's report after that.

Let the troll hunt begin.