Disclosure rules and declared essential patents

Abstract

Many standard setting organizations (SSOs) require participants to disclose patents that might be infringed by implementing a proposed standard, and commit to license their “essential” patents on terms that are fair, reasonable and non-discriminatory (FRAND). Data from SSO intellectual property disclosures have been used in academic studies to provide a window into the standard setting process, and in legal proceedings to assess the relative contribution of different parties to a standard. We describe the disclosure process, discuss the link between SSO rules and patent-holder incentives, and analyze disclosure practices using a novel dataset constructed from the disclosure archives of thirteen major SSOs. Our empirical results suggest that subtle differences in SSO policies influence which patents are disclosed, the terms of licensing commitments, and ultimately long-run citation and litigation rates for the underlying patents. Thus, while policy debates sometimes characterize SSOs as a relatively homogeneous set of institutions, our results point in the opposite direction – towards the importance of recognizing heterogeneity in SSO policies and practices.