Empirical Analysis of License Policy for Declared Standard-essential Patents in Setting Technology Standards

Author Name Dong HUO (Harbin Institute of Technology, Shenzhen) / Jiangwei DANG (University of International Business and Economics) / MOTOHASHI Kazuyuki (Faculty Fellow, RIETI)
Creation Date/NO. March 2019 19-E-023
Research Project Empirical Analysis of Innovation Ecosystems in Advancement of the Internet of Things (IoT)
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Standard-setting organizations (SSOs) generally request that their participants commit to offering licenses ex ante to implementers on fair, reasonable, and non-discriminatory (FRAND or RAND) terms. To adjust for the RAND context, court judges adopt modified Georgia-Pacific rules to determine patent damages ex post in infringement lawsuits involving standard essential patents (SEPs). In this paper, we review the literature on intellectual property rights policy in SSOs and modified Georgia-Pacific rules from court practices and explore the determinants of licensing terms in the RAND context from both technical and legal aspects in accordance with the review. By employing a novel dataset that consists of over a thousand declared SEPs in the Internet Engineering Task Force (IETF), we find that, in general, technical and legal characteristics are significantly associated with reciprocal licensing terms, despite most of their associations with royalty-free (or royalty-bearing) terms being nonetheless trivial.