More Papers on SEPs

1.  Peter Georg Picht has posted a paper on ssrn titled Post-Signing Adjustment of Sep/Frand Licenses in les Nouvelles--Journal of the Licensing Executives Society, Volume LIII No. 2, June 2018.  Here is a link to the paper, and here is the abstract:

The question of whether, when and how SEP/FRAND licenses ought to be “adjusted” in case of a post-signing alteration in the set of licensed patents is of increasing practical relevance. Adjustment may be necessary to keep a license FRAND in the event of far reaching portfolio alterations and several legal instruments could potentially provide the basis for performing such adjustments, amongst them “adjustment clauses” which are integrated ex ante into the license contract or general principles of patent or competition law. On the other hand, the risk to generate continuous conflict between the parties cautions against making adjustment available too easily. This article maps the present legal framework regarding license adjustment on the EU as well as on certain parts of the Member State level. It highlights a selection of fundamental aspects that ought to be taken into consideration for the development of appropriate solutions. Against this background, potential tools for and elements of such solutions are evaluated.   

2.  Alexander Galetovic, Stephen Haber, and Lew Zaretski have published two papers on royalty stacking.  The first is Is There an Anticommons Tragedy in the World Smartphone Industry?, 32 Berkeley Tech. L.J. 1527.  Here is a link to the paper, and here is the abstract: 

An influential literature claims that standard setting for high–technology interoperable products potentially creates monopoly power for the owners of standard–essential patents. Moreover, because there are many owners of standard–essential patents, and each may independently exercise monopoly power (a phenomenon called royalty stacking), an anticommons tragedy may ensue. With actual data from the canonical case of the smartphone industry, this Article shows that royalty stacking theory predicts a cumulative royalty yield of nearly eighty percent. That is, it predicts that four–fifths of the price of a smartphone will accrue to patent holders. Even if all patent holders would combine to eliminate the tragedy of the anticommons and behave as a single monopolist, theory predicts a cumulative royalty yield of nearly sixty–seven percent. That is, it predicts that two–thirds of the price of a smartphone will accrue to patent holders.

This Article then uses actual data from licensors in the smartphone value chain to estimate the actual cumulative royalty yield. It finds that in 2016, the cumulative royalty yield in the world smartphone value chain was only 3.4 percent of the average selling price of a smartphone. This suggests that patent holders do not exercise any meaningful monopoly power to increase prices in the world smartphone market, much less that there is an anticommons tragedy in the smartphone industry.

The other is An Estimate of the Average Cumulative Royalty Yield in the World Mobile Phone Industry:  Theory, Measurement and Results, 42 Telecommunications Policy 263 (2018).  Here is a link, and here is the abstract:

An influential literature argues that dispersed patent ownership may lead to royalty stacking and excessive running royalties, thus increasing the long-run marginal cost of manufacturing phones and their prices. One set of estimates claims that the royalty stack is on the order of 20–40 percent of the value of the average phone. In order to assess this claim, we estimate the average cumulative royalty yield—the sum total of patent royalty payments earned by licensors, divided by the total value of mobile phones shipped— in the world mobile phone industry between 2007 and 2016. We “follow the money” and identify, with varying accuracy, 39 potential licensors in the smartphone value chain. We find that, of these, only 29 charged royalties in 2016, running from a low of $1.6 million to a high of $7.7 billion, summing to $14.2 billion in total, which compares with $425.1 billion in mobile phone sales. The average cumulative royalty yield in 2016 was 3.3 percent or $7.20 per phone. If we restrict this only to smart-phones, the result would be $9.60 per phone, roughly 3.4 percent of the average selling price. A sensitivity analysis shows that even under a very restrictive set of assumptions, the average cumulative royalty yield on a smartphone would not exceed 5.6 percent.