Patent pools are designed to create a one-stop shop for licensing technology. Consumer products may be more successful if patent owners and implementers are able to come together and agree on licensing rates to avoid unnecessary litigation. That is, when it works. When it doesn't, it complicates the picture, results in unnecessary litigation and waste, quite possibly results in an unfair or unnecessary distribution of revenue, and slows adoption.
The present-day video codec landscape is the latter. It currently offers, at best, a fractured approach to patent licensing for multiple generations of video streaming codecs—first with HEVC (H.265), and now with VVC (H.266) & AV1. Companies and licensors have had to navigate multiple pools and NPEs, all offering differing licensing options, rates, and portfolios—some even with overlapping licensors. This Venn diagram shows how complicated things have become, and how no one currently offers a solution that can defray substantial risk and settle the licensing picture for would-be adopters.
For example, Access Advance (Advance) has been one of the major pools for two successive generations of video codecs, HEVC and VVC. Advance states that for HEVC, they offer a license to over 17,000 patents—or, by their estimation, 75%—of the total HEVC landscape. While the sheer number of patents may be impressive on its face, the validity and essentiality of their many patents are simply not up to par when those patents are critically analyzed or challenged in various jurisdictions.
Unified Patents (“Unified”) has filed numerous challenges and written detailed analyses addressing both validity and essentiality of dozens of the patents promoted by the Advance pool all over the world, including the US, Europe, China, and Japan, and demonstrated their questionable nature. The patents below have either been directly declared to Advance or are part of a family that other members have been declared. For instance:
United States:
4 IPRs filed by Unified have resulted in either final written decisions that contain invalid claims or constructions resulting in the patent being objectively nonessential against:
4 reexamination requests resulted in the patent being disclaimed, narrowed, or amended against:
Europe:
4 EPO oppositions resulted in the patents being revoked or the original claims having been found unpatentable against:
Another 13 are currently pending against:
China:
8 patents have had all or some challenged claims revoked. Nearly two-thirds of all Chinese patents challenged contained invalid claims against:
Japan:
5 granted patent invalidity challenges are currently pending against:
In addition to the challenges, Unified has analyzed various Advance patents for essentiality. The patents analyzed often fail in the most straightforward application to the standard. Let’s look at 3 examples which Advance lists as essential on their website but seem to not be when analyzed further.
ETRI U.S. 9,838,714 (“714” ) is listed by Advance as essential to H.265 (HEVC) and is part of a family of at least 29 applications globally. But our analysis shows it is very unlikely to be. The ‘714 patent requires that the first row or column is scanned first. In contrast, the HEVC standard requires the opposite. See HEVC, § 7.3.8.11.
ETRI U.S. 10,575,014 (“014”) also seems to be not essential based on our analysis. The ‘014 patent creates a dependency between the prediction mode and the residual flag designating whether or not residual information was transmitted. HEVC, in contrast, does not have such a dependency. See HEVC, §§ 7.4.9.5, 7.3.8.8, 7.4.9.8, 9.3.3, 9.3.3.8.
GE U.S.10,250,913 (“913”), almost certainly is not essential in our analysis to implement HEVC. During the prediction and transform encoding steps, the ’913 Patent claims dividing a picture into four using a technique called quadtrees. HEVC does not specify quadtrees, nor any relationship between quadtree regions and sub-regions, as required by ’913. See HEVC 6.3.2, 7.3.2.2.1, 7.3.8.2, 7.3.8.4, 7.3.8.5, 7.3.8.8, 7.4.3.2.1, 7.4.9.4, 7.4.9.8,8.5.3.1, 8.6.7.
We believe this ongoing analysis reveals serious and legitimate concerns about the validity, essentiality, and even potential infringement. Given Unified’s ongoing success in revoking or canceling Advanced patents, entities should seriously consider the true percentage of their patents that are both valid and essential.
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