How Do Alleged and Declared Standard Essential Patents Fare in Litigation?

At RPX we have long wondered if patents alleged or declared to be SEPs are actually as essential as claimed. So we set out to analyze how SEPs have fared in judicial settings.

We began by identifying a universe of 380 patents that, since 2005, were 1) asserted in a district court case or International Trade Commission investigation and 2) either declared essential to a standard-setting organization or alleged to be a SEP in a complaint (patent owners not participating in a standard-setting organization often claim that their inventions were included in a particular standard). We then measured how those patents fared in those adversarial proceedings, testing both infringement and validity.

The results were thought provoking. For example, alleged and declared SEPs asserted in cases that made it to a verdict were successful only 12% of the time. But those patents fared better in the ITC than they did in district court, receiving favorable determinations 31% of the time. Interestingly, alleged and declared SEPs were not more successful than other patents. Indeed, such patents that made it to a verdict or initial determination prevailed less often – only 44% of the time, compared to 57% for other patents.

Another illuminating result of the analysis was that a defendant facing assertion of an alleged or declared SEP in a US district court was roughly twice as likely to proceed to a summary judgment order and verdict. The implication here is that a more drawn-out litigation will be a more expensive litigation; while this doesn’t speak to the value of SEPs, it is a reminder that the additional legal expense to monetize or defend against alleged and declared SEPs needs to be considered.

The full study can be accessed here. Readers interested in more data from the analysis and/or learning more about the methodology of the study should contact RPX at whitepaper@rpxcorp.com.