IEEE’s empirical record of success and innovation following patent policy updates

The Institute of Electrical and Electronics Engineers (IEEE) is the world’s largest technical professional organisation, with hundreds of thousands of members. As a US-based standard-setting organisation (SSO), the IEEE has successfully standardised thousands of fundamental technologies, including critical communications standards such as Wi-Fi and ethernet. In 2015 the IEEE updated its patent licensing policy, which addresses how participants at the IEEE commit to license their standard-essential patents (SEPs), covering IEEE standards on reasonable and non-discriminatory terms. In response to claims that the IEEE’s standardisation work was adversely affected by the policy update, this report presents a careful empirical analysis of the IEEE’s standard-setting work since 2015.

There are multiple metrics by which one might evaluate the strength and health of an SSO such as the IEEE. One metric that is not particularly helpful is to count the number of declared SEPs submitted to the IEEE as letters of assurance. Theoretically, counting the number of submitted letters of assurance may provide some insight into which companies most actively support technical development for an IEEE standard. However, this does not apply for the IEEE as most submitted letters of assurance are so-called ‘blanket’ declarations that do not specify particular patents and make blanket statements for any and all SEPs that a submitting company may own. Most standard contributors will submit blanket statements only once at the beginning of the standard project so that the number of blanket letters of assurance submitted over time will by design often decrease. Blanket statements are thus neither quantifiable nor updated (ie, even if an IEEE member contributes to an IEEE standard and files new patents relevant for the standard, these patents are covered by earlier letters of assurance and new submissions are optional). 

One case has estimated that blanket letters of assurance for the Wi-Fi standard (802.11) represented a considerable portion (approximately 90%) of the overall patents that are essential for 802.11 (see Microsoft Corp v Motorola, Inc, findings of fact and conclusions of law, 2013 US Dist LEXIS 60233 at paragraph 335 WD Wash, April 25 2013). Given these court estimates that most SEPs for 802.11 are subject to blanket letters of assurance, counting letters of assurance is arguably meaningless.

Given these limitations of counting letters of assurance, this report presents statistics on standardisation-related activities before and after the 2015 patent policy update. The past two decades have seen standard setting evolve from mere coordination on common specifications to the joint development of complex technology platforms. Standard-setting activity analysis has proved to be a great indicator for innovation and technology development measures.

While increased activity and the publication of standardisation materials are not the sole measures of SSO success, such activity does suggest that companies and other innovators in the community continue to engage with the SSO and participate in its projects. At the IEEE, more standards were published and accepted in 2017 than in any other year in its history. Specifically, the number of published IEEE standards documents decreased from 2012 to 2014 (before the patent policy update), but that trend was reversed in 2015 when the update came into effect – culminating in 2017’s new historic peak (Figure 1). IEEE members may request to initiate new standards projects by submitting new project authorisation requests. In 2017 a record number of 112 new project authorisation requests were submitted to the IEEE and approximately 85 project authorisation requests for updates to existing standards. Measured either way (ie, by counting either new project authorisation requests or total project authorisation requests), 2017 was the IEEE’s most active year to date for new standardisation work (Figure 1).

Another indication of the acceptance of IEEE standards is their accreditation rate by other standards organisations. We reviewed the international accreditation rates for IEEE documents in recent years and counted the number of accredited IEEE standards per year – the results confirmed a positive trend in international accreditations after 2015 (Figure 2).

Switching focus from general standards work at the IEEE to specific work in connection with the IEEE’s ubiquitous 802.11 Wi-Fi standard, a similar positive trend emerged after the patent policy update was adopted. The 802.11 standard is particularly patent heavy and according to court findings, has many thousands of patents declared as essential under the IEEE patent policy.

Our analysis focused on counting contributions submitted to the most significant Wi-Fi working group in recent years: the Task Group (TCax), which is working on the 802.11ax Wi-Fi standard specification. The TCax may serve as one measure of activity, engagement and willingness to contribute proprietary innovation in the 802.11 technical group as it is the most important Wi-Fi project of the past five years.

Figure 3 illustrates that contributions to the 802.11ax working group hit an historic peak in 2017 (more than 1,300 submissions). The sharp increase of technical contributions from 2014 to 2017 confirms that activity in the 802.11 working group has not receded following the 2015 patent policy updates.

IEEE data was also sorted to identify the most active technical contributors to 802.11ax. As shown in Figure 4, the leading technical contributors to 802.11ax were:

• Qualcomm;
• Intel;
• Huawei;
• Newracom; and
• Broadcom.

Intel and Qualcomm together were responsible for approximately 25% of all technical contributions to the 802.11ax project. Other contributors in the top 10 included:

• Marvell;
• MediaTek;
• LG;
• ZTE; and
• Apple. 

Reports indicate that a handful of companies have submitted so-called ‘negative’ letters of assurance following the 2015 policy updates, in which patent owners indicate their willingness to license on a basis other than the new IEEE patent policy (eg, a previous policy basis).

Participation in 802.11ax spans the period following the 2015 policy updates, but substantial activity is lacking with regard to technical contributions from the five companies that submitted negative letters of assurance (ie, Ericsson, InterDigital, Nokia, Alcatel-Lucent and Orange) either before or after the update. Further, these companies are absent from the top contributors. For example, Ericsson submitted approximately half as many contributions as the tenth contributor, Apple, which some authors have sought to portray (seemingly incorrectly) as a mere implementer of standards. The same applies to InterDigital, whose contributions were even lower. Nokia was the 23rd leading contributor with only 0.675% of the overall contributions, while Orange and Alcatel-Lucent made no contributions to 802.11ax.

Thus, all of the most active technical contributors to 802.11 – both before and after the IEEE’s policy update – submitted letters of assurance to abide by the IEEE’s patent policy through their own statements or through blanket letters of assurance, and none have issued negative letters of assurance.

The following conclusions were drawn based on public information:

• More standards documents were completed and published in 2017 than in any other year in the IEEE’s history.
• More new standardisation projects were launched at the IEEE in 2016 and 2017 than ever before in the organisation’s history.
• Contributions to technical working groups at the IEEE – particularly in the 802.11 working group – are at historically high levels.
• The largest technology contributors at the IEEE continue to declare their patents subject to the IEEE’s patent policy.
• The handful of companies that have issued negative declarations are not and never have been among the more active contributors to 802.11; data indicates that they are relatively minor players in development of the standard and some contribute nothing at all.

Our analysis shows that 2017 was a record year for the IEEE’s standardisation work, both generally and in the 802.11 working group. Far more meaningful measures than merely counting letters of assurance (or negative letters of assurance from companies that are not leading technical contributors in any event) indicate that the IEEE’s standardisation work is thriving, and its technical ecosystem is such that technical development has and is being led by other companies.

This report is an extract of an ongoing study around technical development and innovation activities within the IEEE standard-setting organisation. IPlytics’ platform uses a variety of data sources to provide clarity on how to count and analyse data in markets where patents and standards matter