As I noted in part one of my talk at the IPWatchdog Patent Masters Symposium, the validity statistics for SEPs do not look very good at first glance. Thus, according to a 2017 PricewaterhouseCoopers study, plaintiffs in U.S. courts (ignoring patent type) have on average a 33% chance of success—only a 27% chance in the case of telecommunications patents. This chance of success is probably overstated for Standard Essential Patents (SEPs), based on the easy availability of prior art. Indeed, according to RPX’s 2014 study, in the United States, SEPs are likely to be less than half as successful as non-SEPs.

To be fair, recently, and using a similar dataset, Professor Mark Lemley found high validity rates for SEPs (80% and 88% for practicing entities and NPEs, respectively) and an infringement rate of 42% for practicing entities and 21% for NPEs While this point seems to favor the validity strength of SEPs, I argued in my talk that it is inconclusive. Specifically, I argued that given the structural process of most jury and bench trials, having found an SEP not infringed, most decision makers would be inclined to go out of their way to find the SEP valid (a) to avoid having to deal with the work to overcome the higher burden to invalidate, especially where the question of validity is likely moot having found non-infringement; and (b) in recognition of the supposed technical importance of SEPs.