Patents are a legal game. But, Kodak just changed it. Details after the jump.
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The intellectual property hustle used to be so simple: purer, even. Patent holders extracted licensing fees, lump-sum settlements or cross-licensing agreements from nonholders, who paid up to avoid messy lawsuits or injunctions. It was a drag for almost everyone involved, but the stakes were comparatively small. Now, multibillion-dollar portfolio sales have put blood in the water, attracting an entirely different kind of shark.

We’ve already seen this play out once with Motorola. It’s easy to forget now that just a few weeks before Google stepped in to buy the company, investor Carl Icahn publicly and privately urged Motorola to sell off its patents, either for cash or by (again) splitting up the company.

This put both Motorola and Google in an awkward spot: If Motorola couldn’t find a buyer, the company could be torn apart; if Google didn’t step in, they risked losing another patent bidding war. In the end, Motorola was able to negotiate a premium price, and Icahn now stands to pocket millions of dollars.

Now we have the formula. It’s playing out with RIM, which is getting pressure to sell, license or spin off its patent portfolio. Never mind that RIM’s intellectual property, or IP, might not actually be as intrinsically valuable as Nortel’s, Novell’s or Motorola’s.

Right now, it looks like a seller’s market. Because nobody seems to be kicking the tires to see exactly what they’re buying, the conventional wisdom is to sell. Like Motorola a few weeks ago, RIM is in a tough spot, so this pressure is hard to resist. If RIM were to publicly announce that it wasn’t for sale, its already-weakened stock, temporarily buoyant from acquisition rumors, would fall to the ground.

It’s even harder for Kodak, which really does have a substantial patent portfolio and is in an even weaker market position. On Wednesday, Bloomberg ran an analyst-driven story titled “Kodak Worth Five Times More in Breakup With $3 Billion Patents“:

“Kodak is the lowest hanging fruit out there.… [Its patents] could go for a huge number and nobody’s talking about it.” – Chris Marlett, MDB Capital
Kodak “missed the boat with the transition to digital, but they do have some valuable assets…. This whole patent area has become really hot.” – Walter Todd, Greenwood Capital
“You cannot go to market today with a mobile device that doesn’t have the ability to capture an image and transport it…. If you were to be an acquirer of [Kodak’s patent on this process], think about what your leverage may be against those other manufacturers out there using the Android.” – Mark Kaufman, Rafferty
Kodak’s stock jumped 16 percent overnight, fueled by rumors of a Motorola-style takeover or patent sell-off.

A company that’s lost billions of dollars over the decade, sporting a market cap of less than $700 million, begins to look like a much better buy if you think it’s sitting on $3 billion in assets. It looks even better if you think it might win a billion-dollar infringement suit against Apple and RIM, which has been dragging out in the International Trade Commission for years but may finally be decided soon.

Kodak doesn’t fit our usual picture of a patent troll. It more closely fits our picture of a company patent laws were designed to protect. It makes real products. Whether its current suits have any merit, Kodak’s labs really invented and improved a wide range of technologies we’ve all benefited from.

But its continued existence as a bona fide technology company hinges on its ability to turn its IP into profit one way or another. And if its management doesn’t use its portfolio to extract every conceivable dollar, a vocal sect of shareholders will insist that the company be turned over to someone who will.

Steve Lohr’s “A Bull Market in Tech Patents,” published Wednesday in The New York Times, begins by detailing the broader downside of the patent craze: billions of dollars to purchase or defend existing patents is money companies like Apple or Google don’t have to spend on new products or research.

But that money doesn’t simply evaporate. “It’s a transfer of wealth from innovators to bondholders and stockholders who have no motivation to innovate,” Harvard Business School economist Josh Lerner tells the NYT. “It’s disturbing.”

What we’re seeing is a new kind of patent troll: a class of activist investors, speculators and analysts who directly hold no patents themselves, but can use the perceived value of IP as leverage to influence a company’s decisions and move the needle on Wall Street.

From this point of view, the patent bubble has combined the merger and liquidation craze of the 1980s, the dot-com bubble of the late 1990s and the housing, mortgage security and derivatives bubble of the 2000s. Everyone is looking to swap paper: Nobody really knows what it’s worth.

(One rare point of relative sanity is the auction for InterDigital, where companies are balking at the inflated asking price, taking extra time to perform due diligence and carefully evaluating whether they can make good use of the patents on the table.)

Over time, the market will correct itself and price patents properly. Meanwhile, some people will most likely get very rich and many companies, including legends and giants, will most likely be destroyed or transformed beyond recognition.

This explains why you’re now reading about patents every day. A game that’s played out at the micro level is exploding into the macro consciousness, turning millions into billions. So, what’s happened a dozen different ways in M&A stories for years is happening now with IP.

Like Slim tells Cutty in The Wire, “the game is the same; it just got more fierce.”