Posted by Social Science Research Network
How essential are standard-essential patents?
By Mark A. Lemley (Stanford Law School) & Timothy Simcoe (Boston University)
Abstract: Courts, commentators, and companies have devoted enormous time and energy to the problem of standard-essential patents (SEPs) – patents that cover (or at least are claimed to cover) industry standards. With billions of dollars at stake, there has been a great deal of litigation and even more lobbying and writing about problems such as how if at all standard-setting organizations (SSOs) should limit enforcement of patent rights, whether a promise to license SEPs on fair, reasonable, and non-discriminatory (FRAND) terms is enforceable in court or in arbitration, what a FRAND royalty is, and whether a refusal to comply with a FRAND commitment violates the antitrust laws.
In this study, we explore what happens when SEPs go to court. What we found surprised us. We expected that proving infringement of a SEP would be easy – they are, after all, supposed to be essential – but that the breadth of the patents might make them invalid. In fact, the evidence shows the opposite. SEPs are more likely to be held valid than a matched set of litigated non-SEP patents, but they are significantly less likely to be infringed. Standard-essential patents, then, don’t seem to be all that essential, at least when they make it to court.
Featured News
Walmex Awaits Antitrust Ruling as Mexican Regulator Probes Alleged Practices
Oct 8, 2024 by
CPI
Crypto.com Sues SEC, Alleging Regulatory Overreach in Crypto Industry
Oct 8, 2024 by
CPI
Elite US Universities Face New Antitrust Suit Over Financial Aid Practices
Oct 8, 2024 by
CPI
Kirkland & Ellis Strengthens Antitrust Practice with New Partner from FTC
Oct 8, 2024 by
CPI
TikTok Hit with Lawsuits from 13 US States and DC
Oct 8, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh