Pilot Study for Essentiality Assessment of Standard Essential Patents

This study investigates the technical and institutional feasibility of a system that ensures better essentiality scrutiny for Standard Essential Patents (SEPs).
We first studied the state of the art on essentiality assessment in literature, court cases involving larger scale essentiality assessments, essentiality assessment in patent pools, and the Japanese Hantei for Essentiality advisory opinion. A patent landscape analysis of SDO declared patents was performed to assess their use as input to essentiality assessment mechanisms. Technical feasibility was assessed in a pilot experiment, in whicha variety of assessors evaluated patents for their actual essentiality. Institutional feasibility was, among other means, assessed via a stakeholder workshop. Given (1) the observed interest in transparent data on essentiality of patents for standards, from implementers, patent owners and courts alike, (2) the potential benefits of such data for these parties and for the system as a whole, and (3) our finding that a system for generating such data seems both technically and institutionally feasible, we recommend policy makers to pursue the development and implementation of a system for essentiality assessments.