For 'Patent War' Alarmists, Time to Make Peace with the Empirical Data

Center for Strategic and International Studies (CSIS) 2022

15 Pages Posted: 21 Oct 2022

See all articles by David Kappos

David Kappos

Cravath, Swaine & Moore LLP

Kirti Gupta

Qualcomm, Inc.

Date Written: August 26, 2022

Abstract

The narrative that the U.S. patent system is bogged down in an unprecedented wave of litigation is not borne out by the empirical data. And pointing the finger at smartphone standard essential patents (“SEPs”) is a particularly egregious mischaracterization. In this article, we explain why the data—when properly contextualized—do not support the conclusion that patent litigation has increased in the U.S. in any meaningful sense. Specifically, we look past the myopic focus on a single flawed metric—the raw number of lawsuits—and contextualize the data by examining highly pertinent factors such as changing procedural rules and the increased number of patents granted, among others. We then turn our attention to the so-called “smartphone patent wars” and demonstrate how the data, when normalized to account appropriately for relevant economic and other factors, also do not support a conclusion that smartphone SEPs are at the root of litigation activity. Finally, we present qualitative explanations for why patent litigation in the smartphone industry does not suggest a broken patent system, in any event.

Keywords: patents, standard essential patents

Suggested Citation

Kappos, David and Gupta, Kirti, For 'Patent War' Alarmists, Time to Make Peace with the Empirical Data (August 26, 2022). Center for Strategic and International Studies (CSIS) 2022, Available at SSRN: https://ssrn.com/abstract=4218133 or http://dx.doi.org/10.2139/ssrn.4218133

David Kappos (Contact Author)

Cravath, Swaine & Moore LLP ( email )

825 8th Ave.
New York, NY 10019
United States

Kirti Gupta

Qualcomm, Inc. ( email )

5775 Morehouse Drive
San Diego, CA 92121
United States

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