Are non-practising entities opportunistic? Evidence from litigation of standard essential patents.

This article examines whether non-practising entities (NPEs)—firms that enforce patent rights without commercializing the underlying technologies—engage in opportunistic behaviors more frequently than practising entities (PEs) in the enforcement of declared standard-essential patents (SEPs) in the United States. Analyzing US SEP litigation data from 2010 to 2019, the study finds that while both NPEs and PEs exhibit opportunism, they tend to pursue different strategies: NPEs are more likely to exploit the patent declaration process and the opacity of the SEP licensing market, whereas PEs more often seek injunctions or sales bans against alleged infringers. The research also highlights that NPEs predominantly enforce SEPs acquired from PEs and that opportunistic conduct by NPEs is associated with a higher likelihood of settlement, suggesting strategic differences in litigation approaches. These findings contribute to understanding the role of NPEs in the SEP ecosystem and support policy efforts aimed at increasing transparency and clarity in SEP declarations and licensing.