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All new this week, the European Commission published two studies on standard essential patents (SEPs), one of which was written by IPlytics. Throughout his study, IPlytics CEO Dr. Tim Pohlmann provides statistical evidence on the importance of SEPs on key technologies in Europe.

IPlytics for the European Commission

A SEP protects technology that is essential to a standards such as those for 4G (LTE) and WiFi networks which rely on hundreds of patented technologies to work. Dr. Tim Pohlmann’s Landscaping study of standard essential patents in Europe provides unique statistical evidence on the importance of SEPs on key technologies in Europe. Based on a unique dataset, the study highlights trends at major standardisation bodies (SSOs) as well as the behaviours of SEP owners and information on their patent portfolio. It also provides key evidence on the need and feasibility of essentiality checks for SEPs. Furthermore it offers insights on SEP value and licensing patterns and the timing of SEPs declarations and stardard releases at SSOs.

Main findings

Trends at SSOs and patent holders
Over 70% of worldwide SEPs are declared at ETSI (European Telecommunication Standards Institute), underlining the importance of the European market. However, for key technologies in Europe, companies in Asia and the USA hold more SEPs and younger patent portfolios than European companies. European firms Nokia, Ericsson and Siemens file a large amount of SEPs, but American and Asian companies such as Qualcomm, InterDigital, Samsung, Huawei, Google and LG are also file heavily in Europe.

Licensing
68% of SEPs are subject to FRAND (fair, reasonable and non-discriminatory) terms, 65% are subject to reciprocity rules and only 9% of SEPs are pooled.

Value
SEPs have higher value and larger family size than other patents (28 vs. 16 for the control group).

Timing declaration
71% of all declared SEPs are granted after the final standard release with important differences amongst SSOs (e.g. 73% at ETSI, 20% at ISO and IEC).

Essentiality checks
The evidence collected suggests a strong case for more transparency. To be reliable, essentiality checks should be implemented after patent examination and first standard release. It can provide transparency and legal certainty to market players at reasonable cost, if implemented for future SEPs and only one patent within the family. Patent offices have the technical competencies, access to documents, industry recognition which allow them to perform these checks at reasonable cost.

Implications
This report shows the importance of SEPs in protecting and allowing the diffusion of key technologies in Europe. It provides unique empirical evidence on a number of key issues related to SEPs.

The study is part of the Commission’s work to build on the existing IPR framework to enable easy and fair access to SEPs. This is described in the 2016 Communication, ICT Standardisation Priorities for the Digital Single Market.

The Commission intends to fully draw on these results in assessing the interplay between SEPs and standardisation in the EU Single Market.

 

2nd Study on Transparency, Predictability and Efficiency of SSO-based Standardization and SEP Licensing

The second study, by Charles River Associates, evaluates issues and solutions related to SEPs and the standardisation process. The analysis builds on a previous report on patents and standards (PDF, 580kB) prepared for the Commission and on the responses to a public consultation on patents and standards in 2015. The analysis also covers standardisation challenges in the Internet of Things industries.

 

Both studies are part of the Commission’s work to build on the existing IPR framework to enable easy and fair access to SEPs, as described in the 2016 Communication ’ICT Standardisation Priorities for the Digital Single Market’.

Their results will be used to assess the interplay between standardisation and patents in the EU Single Market.