Standard Essential Patents (SEPs) cover technology that is necessary to comply with a standard. For the 5G standard, and many other standards, patent owners voluntarily disclose patents that they consider to be essential. However, standard development organizations (SDOs) do not scrutinize these declarations to determine whether the patents that have been declared essential are actually essential.1
The number of SEPs owned by a licensor is important because larger portfolios tend to command larger royalties.2 Patent owners thus have an incentive to over-declare,3 and it is widely accepted that many declared essential patents are not, in fact, essential.4 The court in Unwired Planet acknowledged this problem, stating: “Very many more patents are declared to be essential than in fact are essential. . . . [I]t must also be recognized that the fact that rates are negotiated by counting patents creates a perverse incentive to declare as many patents as possible, making over-declaration worse.”5
Several publicly available studies have examined patents that have been declared essential to the 5G standard and reached determinations about the share of all declared essential patents that are truly essential. In this article, we offer a critical review of these studies. We first document the remarkable extent of disagreement between them, and then review methodological differences and other potential explanations for their divergent conclusions.6
