Tim Pohlmann, Ph.D.

Patent litigation trends provide critical insights into the evolving landscape of innovation, enforcement and intellectual property strategy. Understanding these trends is essential for companies, investors, and legal professionals who seek to manage risk, protect assets and navigate a complex legal environment. In the United States, patent litigation has grown in significance due to rising enforcement activity, shifts in venue selection, and increasing involvement of so-called patent assertion entities (PAEs). Tracking these patent litigation patterns not only reveals which technologies and business models are most affected but also helps stakeholders anticipate legal challenges and make informed strategic decisions.

Connected devices like phones, laptops, tablets, and routers as well as smart homes, smart cars, smart factories, and smart cities are just a few examples of what’s possible today thanks to the technical advancements of widely implemented Wi-Fi 6 technology. Consequently, the licensing of Wi-Fi 6 Standard Essential Patents (SEPs) has become a significant global challenge, leading to a rise in litigation worldwide. Realizing the full potential of Wi-Fi 6 and integrating the standard into next-generation products requires navigating the complex landscape of thousands of SEPs.

Standard Essential Patent (SEP) litigation is global and SEP owners often follow a strategy to enforce their SEPs in multiple jurisdictions. Beyond the typical venues in the United States, Europe, or China, SEP cases are increasingly also resolved in less typical jurisdictions such as Brazil, Colombia and India. One country that has been largely ignored in global SEP enforcement strategies, however, is Japan. This is in many ways surprising given that Japan the  fourth largest economy in the world and has over 121 million citizens. This huge buyers’ market has high demands in expensive smartphones or other smart devices, as well as one of the largest automotive industries.

Lyse Brillouet has been the Chief Intellectual Property Officer and Senior Vice-President, Licensing, for the Orange Group since 2018. In the latest episode of The SEP Couch, Brillouet describes why intellectual property (IP) matters within the Orange Group, which has over 130,000 employees worldwide. IP for Orange is an important outcome of various research and development projects. Orange is a technology company, with its main objective being to bring technology and related service to its customers. In some cases, Brillouet must balance the monetization of IP and the promotion of a new standardized technology. One example of this is Orange’s strategy regarding patent pools.

When licensing standard essential patents (SEPs), the SEP licensor and the standard implementer (also known as the SEP licensee), go through two phases of negotiation. The first phase is the technical phase, followed by the second phase, the commercial discussion. In the technical phase, the SEP licensor must provide evidence that at least one patent of its portfolio is valid and standard essential. This is done by providing rigorously conducted claim charts that map claims against the standard’s sections, providing evidence that all claim elements read on the technical standard specification. Typically, only a few claim charts are needed in this first technical phase, since only one patent must be valid and essential to make the case that the standard implementing party is infringing. The second phase, the commercial discussion, is much more complex. Here, the SEP owner must provide evidence of the value of its SEP portfolio for a given standard supporting why the proposed royalty rate is FRAND (fair reasonable and non- discriminatory).