Comparing the Strength of SEP Patent Portfolios: Leadership Intelligence for the Intelligence Community

• Author: David J. Kappos
• Position: Partner at Cravath, Swaine & Moore LLP. Previously, he served as the Under Secretary of Commerce and Director of the United States Patent and Trademark Office from August 2009-January 2013
• Pages: 193-201

ARTICLES

Comparing the Strength of SEP Patent Portfolios:

Leadership Intelligence for the Intelligence

Community

David J. Kappos*

I. STANDARD DEVELOPMENT ORGANIZATIONS PLAY A PIVOTAL ROLE IN THE

CREATION OF INNOVATION-BASED STANDARDS. . . . . . . . . . . . . . . . . . . . . . 195

II. SPEAKING TRUTH: WHY PATENT COUNTS ARE A MEANINGLESS MEASURE

UNCORRELATED TO THE STRENGTH OF PATENT PORTFOLIOS . . . . . . . . . . . 196

III. TECHNICAL CONTRIBUTION COUNTS ARE SIMILARLY PROBLEMATIC AS

INDICATORS OF SEP PORTFOLIO STRENGTH . . . . . . . . . . . . . . . . . . . . . . . . 198

IV. THERE IS NO SUBSTITUTE FOR EXPERTS ASSESSING EACH PATENT TO

DETERMINE ITS IMPORTANCE TO A STANDARD; EVEN THE MORE

ESTABLISHED ROBUST METHODOLOGIES VERSUS COUNTING PATENTS OR

TECHNICAL CONTRIBUTIONS ARE INHERENTLY LIMITED . . . . . . . . . . . . . . 198

V. THE BEST WAY TO COMPARE THE IMPORTANCE OF SEPS IS FOR SKILLED

PROFESSIONALS TO READ PATENT CLAIMS AGAINST SPECIFICATIONS . . . . 200

VI. LEADERSHIP IN 5G MUST BE ASSESSED UTILIZING RELIABLE

METHODOLOGIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200

The next generation of mobile broadband, 5G, is vastly faster, smarter, and

more efficient than its predecessors, 3G and 4G. It is set to allow for much

improved communication between devices, and therefore people, globally.

Beyond enhancing cellular connections, 5G will also improve intelligence, sur-

veillance, and reconnaissance opportunities for sensitive government use. 5G’s

potential to advance these activities is so significant that the U.S. government has

declared 5G critical to national security. This, in turn, makes 5G a focal point for

U.S. technological leadership.

Two kinds of national security concerns have been raised in connection with

5G leadership. The first involves leadership in the roll-out of 5G technology to

the marketplace, including infrastructure deployment and spectrum allocation.

This is a serious issue, to be sure. However, the second kind of national security

concern is far more ominous and strategic with regard to long-term leadership in

technology innovation. The country and the companies that lead in technological

* David J. Kappos is a partner at Cravath, Swaine & Moore LLP. Previously, he served as the Under

Secretary of Commerce and Director of the United States Patent and Trademark Office from August

2009-January 2013. © 2021, David J. Kappos.

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