The uncertainty regarding the essentiality of declared SEPs is an important topic in the policy debate about FRAND. Here, understanding the overall SEP landscape is critical for smooth standard adoption, maintaining profitability and protecting the capacity to sell new products and services with enough access to third-party patent rights. However, not all declared patents are essential and not all essential patents are declared and that is why one of the major challenges when licensing, transacting, or managing Standard Essential Patents (SEPs) is that there is no public database that provides information about verified SEPs. A recently published 5G patent study uses a sample of 2,000 randomly selected 5G self-declared patents to identify the share of fully mappable patents, that is, patents where all claim elements were found in the 5G standard specification and a claim chart was made to justify that the patent is essential. Results of this study confirm that patent essentiality differs strongly across the self-declared 5G patent portfolios and ranges from 5G portfolios with an essentiality rate of only 6% to 5G portfolios with an essentiality rate of 30%. The uncertainty regarding the essentiality of declared SEPs is an important topic in the policy debate about FRAND. Different approaches have been proposed to increase transparency about the number of truly essential patents in different patent holders’ portfolios. As assessments of the proportion and number of truly essential patents owned by different patent holders play an important role in FRAND determinations, it is crucial to understand the diversity of existing approaches, and how to properly interpret their results.
While recent research sheds light on different methods on SEP determination approach, policy maker as well as the industry calls for transparency about which patents are truly essential. In this regard an the virtual Research Roundtable on “Mechanisms, Governance, and Policy Impact of SEP Determination Approaches” has discussed results of recent academic research and discussed its implications for the overall policy debate of FRAND determination.
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