“A ‘motion pass rate’ or ‘Accepted Rate’ metric may provide a more accurate indication of the strength of a company’s contributions [to a standard]. A high acceptance rate gives at least some information that the working groups – and ultimately the SSOs – accepted the contribution, which may indicate superior technology.”
While 5G technology is quite well known by many in popular culture, thanks to nearly ubiquitous television commercials, it is not the only new wireless technology that promises revolutionary support for the fast-growing Internet of Things and associated devices. Wi-Fi 6 (or “802.11 ax”) also promises to offer consumers vastly improved wireless speed and performance, although it is not yet nearly as pervasive as 5G technology.
Cue the Patent Wars
As new technologies are developed and eventually used by customers, disputes about patent rights, licensing and royalties typically follow, and we can be certain that will be the case as wireless telecommunications continue to offer faster speeds and devices continue to become interconnected. The speed revolution will open horizons not yet imagined, and economies will change. Sorting out who deserves what for each innovative contribution will become increasingly important and complicated (at least under current paradigms).
In licensing negotiations, patent licensors often refer to the total number of patents in their portfolio as a proxy for the strength of that portfolio (and, thus, a reason to pay a higher royalty amount for a license). For patents that cover standardized technology (referred to as “standard-essential patents,” or SEPs), this strategy is particularly common. In the context of SEPs, patent count is often presented in negotiations as the number of patents declared essential to the standard.
With some standards, the number of declared patents is relatively easy to determine. For example, patents declared essential to many telecommunications’ standard bodies (e.g., 3G, 4G, or LTE) are identified expressly by patents in declarations. But reliance on declared SEPs can be problematic when dealing with standards for which specific patents are not identified in members’ submitted letters of assurance (as is often the case with, for example, 802.11 standards, or certain video coding standards like H.264/AVC or H.265/HEVC.
Because the vast majority of technical submissions made to a standard are ultimately patented, one alternative to relying on patent/declaration counts for determining portfolio value is to look at the number of technical contributions submitted during development of the standard to identify the companies that potentially hold the highest number of high-value patents.
Some commentators (see here, here and here) have recently focused on and attempted to quantify technical contribution data, suggesting that such data may help identify “technology leader[s] and “key innovations and their contributors.” While this data-driven approach is attractive and may have some merit when the proper features are focused on, this data should be carefully considered so as not to be misleading.
The Role of Technical Contributions in Standards
Many standards employ a common formula for developing and promulgating technical standards. Generally, standards setting organizations (SSOs), including the Institute of Electrical and Electronics Engineers (IEEE), International Telecommunication Union (ITU), and The 3rd Generation Partnership Project (3GPP), coordinate contributions by members from both private and public sectors. SSOs and their members generally seek to include the best technology in a standard. Each SSO has its own unique process, but they all typically involve the following common elements:
- Technical meetings: Members collaborate to address certain issues in the standard. These meetings are often broken into “working groups” and might cover specific issues like communication protocols, system architecture, or other specific technological challenges facing the standard and its members.
- Submission and considerations of contributions: In technical meetings, members make formal contributions for consideration by the working group. These contributions are debated and discussed in meetings, and they are also discussed between the members through individual discussions. After extensive discussion and debate, the group adopts the best solution to a given technical problem for inclusion in the standard.
- Development and adoption of the selected technology: Once a particular technical solution is selected, the members propose specific language to be included in the standard itself. Ultimately, contributions proposed by members from the various working groups are publicized in a release of the standard. Devices and services are then developed that support that standard and deployed in the marketplace.
Wi-Fi 6 Technical Contributions
Development of the IEEE’s 802.11 ax standard (also known as Wi-Fi 6) began in 2014, with certification taking place in 2019. Throughout that time, thousands of technical submissions were made (around 1,300 alone in 2017).
In Tim Pohlmann’s analysis (co-published by IPlytics and IAM), Wi-Fi 6 contributions were tallied and plotted by submission date (and Wi-Fi generation) and contributor (by company):
Pohlmann then focused specifically on Wi-Fi 6-related patent filings directed to two specific features that many believe are important for the technical advancements of the new standard: MU-MIMO (“Multiple In/Multiple Out”) and OFDMA (“Orthogonal Frequency Division Multiple Access”) functionality.
As with prior IEEE 802.11 standards, many aspects of the Wi-Fi 6 standardized technology is covered by patents. But, once again, very few specific patents or patent applications have been identified specifically in participating companies’ SEP declarations.
Technical Contributions for Core Technologies May Help Predict Standard Essential Patent Value
From the IPlytics data, Qualcomm, Huawei, Intel, and Broadcom contributed the largest number of total submissions during Wi-Fi 6 development. While this metric alone does not confirm patent portfolio value, it is a common starting point used by many as a proxy for value. If I have more patents than you, I must have more valuable patents than you have. Overly simplistic, and sometimes misleading, but a place to start the analysis, nevertheless.
Before any real conclusions regarding patent value can be reached, an even more detailed assessment is necessary—one that takes into account quality and not just quantity.
The August 26, 2020 article published by Drs. Friedrich Emmerling, Ju Min Kim, and Michael Behmke of Braun-Dullaeus Pannen Emmerling Patent- & Rechtsanwälte (“Wi-Fi 6: Key Innovations and their Contributors”) attempts to tackle this problem through their analysis of “motion pass proposals.” In particular, beyond total contributions, IEEE data allows for the identification of accepted contributions, providing another measure of mere “absolute” contributions to core technologies in a standard. A “motion pass rate” or “Accepted Rate” metric may provide a more accurate indication of the strength of a company’s contributions. A high acceptance rate gives at least some information that the working groups – and ultimately the SSOs – accepted the contribution, which may indicate superior technology. Indeed, if a company has a high acceptance rate in a core area, or even across multiple core areas, that may suggest a high technical value in their contributions (and by, extension, one might be able to extrapolate that any SEPs that they have covering those technologies are of similarly high technical value).
Focusing on OFDMA in Wi-Fi 6, the Braun-Dullaeus data shows that for the top five technical contributors (Huawei, Qualcomm, Newracom, Intel, and Marvell), there were meaningful differences in “Accepted Rates.”
Of the top three contributors, Huawei and Qualcomm had roughly 95% of their contributions accepted by the committees, whereas only around 40% of Newracom’s contributions were accepted. Intel had better success (though not as high as Huawei or Qualcomm), seeing approximately 85% of their contributions accepted into the standard. And despite submitting fewer total contributions, 100% of Marvell’s contributions were accepted.
Ultimately, an accurate assessment of a patent’s true technical value in licensing or litigation requires careful analysis of the patent itself and its issued claims, including its essentiality and validity. Nevertheless, the process described above provides a helpful starting point for that more detailed valuation analysis and identifies which companies are most likely to have key, core technology in a given standard.
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