The Watchful Waiting Strategy in Standard-Essential Patents: The Case of 5G Technology

In recent years, the relevance of communication technology has steadily been increasing. This technology is represented by technical standards as a means for faster technology diffusion and regulation. In turn, they are supported by standard-essential patents (SEPs) that protect inventions related to the standard and can be licensed as a pool. However, there is no standard-essentiality check, which induces patent applicants to declare either too many or too few patents as standard-essential. In this article, we address the latter deficiency and define a new patent strategy, namely the watchful waiting strategy. Here, patent applicants file patents that are very similar to SEPs without subsequently declaring them standard-essential. We use topic modeling and deep learning to assess SEPs and non-SEPs of 5G technology for standard-essentiality. The results provide information on the type of applicants holding watchful waiting patents. This entails several implications for companies, patent attorneys, and researchers, as the process model presented for identifying watchful waiting patents reduces the risk of patent litigation for companies wishing to use the standard. At the same time, rethinking the current process of SEP declaration opens up new avenues for policy makers and standard-setting organizations.