Overcoming inefficiencies of patent licensing: A method to assess patent’s essentiality for technical standards

Patents that are essential to a technical standard are key assets for both developers and implementers of the standard. Many standard setting organisations (SSOs) seek to ensure that all such patents be made available to licensees under fair, reasonable and non-discriminatory conditions, and frequently also stipulate that such patents be explicitly declared. But while many patents are declared to be potentially essential, little is known about which of these are actually essential. Absence of (transparent) information on essentiality has significant social costs. Responding to calls for such data from industry, courts and policy makers, several commercial studies and a few academic papers have attempted such assessments, but each has limitations. This paper reports on the technical feasibility of a system of expert assessment for patent essentiality. Twenty-eight experts, including many patent examiners, performed a total of 205 assessments, spending a total of 176 working days. Comparing their outcomes to a high-quality (yet not perfect) reference point, we conclude the accurate assessments, at a price level that allows large scale testing, are certainly technically feasible, and identify routes to further improvement.