Technical standardization can involve the integration of hundreds, thousands or even tens of thousands of technologies, many of which are protected by patents. Such “standard essential patents” (SEPs) are subject to a variety of unique contract and competition law issues and considerations. To support access to and use of standards, and to restrict abuses, many standards-setting organizations (SSOs) require that participants submit binding declarations to offer licenses to their SEPs on “fair reasonable and non-discriminatory” (FRAND) terms.
A recently published study by IPlytics evaluates standard essential patents (SEPs) publicly declared at IEEE, and evaluates standard setting activities at IEEE since March 2015, when the IEEE adopted certain updates to its Patent Policy. Based on the publicly available information regarding SEP declarations to IEEE, the IEEE’s standard document publications, and other information concerning IEEE’s standard setting activities we derived the following conclusions:
- Technical contributions to IEEE come from a wide variety of companies, the majority of whom utilize blanket declarations, making “patent counting” a particularly poor methodology of assessing IEEE technical contributions;
- IEEE’s receipt of patent declarations since March 2015 are largely in line with historical precedent, and indicate a particularly active declaration process shortly after completion of the Patent Policy updates (i.e., there were a large number of declarations submitted subject to the terms of the new Patent Policy shortly after that policy was adopted);
- Standardization work at IEEE has continued to move forward in line with work levels prior to the IEEE IPR Policy updates; and
- New standardization work at IEEE has been at its highest levels ever since the IPR Policy updates were completed.
“In short, and while we take no position in connection with the various substantive issues raised by the IEEE Patent Policy updates, the data indicates that contributions to IEEE standards, and technical work within IEEE working groups, continues apace.”
Increasing patenting and standard setting activities
Suggestions that LOAs are down at IEEE after March 2015 also seem to be without merit. More LOAs were submitted at IEEE in 2015 than in any prior year in IEEE’s history (figure 1).
Figure 1: Number of submitted LOAs over time as of declared before and after the IEEE IP policy change (1992-2016)
In terms of publishing new standard documents the IEEE expanded its output in 2015 and 2016 as compared to the prior year. Overall, IEEE’s output has fluctuated a bit year-to-year, but has continued to grow steadily over the past two decades. In both 2015 and 2016, more standards were approved than in 2014, with 2016 representing the fourth highest total ever for approved standards at IEEE (figure 2).
Figure 2: Number of published IEEE standard documents over time (as to date of first version release)
Most significant, work at IEEE has continued to increase. New Project Authorization Requests (“PARs”), the means by which new standards projects are initiated at IEEE and thus a key indicator of new activity and interest around IEEE standards, was at its highest level ever in 2016 (figure 3)
Figure 3. Number of New Project Authorization Requests – PARs (2011-2016)
In sum, there are many ways to assess the health and significance of a given SSO. Based on our review of the available facts, and by many measures, IEEE remains as strong, or stronger, than it has ever been.