Determining When a Patent Portfolio is Standard-Essential: A Probabilistic Approach
In recent years, several patent experts and commentators have claimed that there are too many “low-quality” patents being granted by patent offices around the world, or that a large percentage of patents are often found invalid by courts and judges. Until a patent is found to be invalid by a court or another tribunal, during licensing negotiations both licensor and licensee can only consider the likelihood that such patent is eventually found invalid based on the incomplete information available to them. Similarly, it has been claimed that a patent-by-patent analysis of a large patent portfolio could determine, without any uncertainty, whether a portfolio is infringed or standard essential. For example, several studies have been published or presented in courts that try to determine which patents in a portfolio are “truly” essential….. A better model, in the author’s opinion, is a probabilistic model that tries to estimate the likelihood of a portfolio to be infringed, valid and/or essential.