For many years, efforts have been made to collaboratively improve and harmonise the technical standards that underpin global telecommunication networks, such as 3G and 4G. Under the auspices of the 3rd Generation Partnership Project (3GPP), companies from across the telecoms space (such as Cisco, Qualcomm, Ericsson, Samsung, BlackBerry, or ZTE) have come together to develop the cellular communications technology that brings seamless connectivity to the phone in your pocket. One might imagine this to be a closed or secretive process, but the process is in fact fully transparent and the agendas and minutes of 3GPP meetings are publicly available, as are the contributions and proposals made.
This unusual level of cooperation between rival companies in the telecoms space is facilitated by, and indeed relies upon, the patents system. The patents system, and, in particular, its power to protect inventions before they are disclosed to the public, ensures 3GPP members can submit improvements to a public forum and receive a fair reward for their contributions. In practice, this involves filing patent application(s) prior to submitting proposals for changes to a standard and then, if these proposals are approved, granting licenses to the resulting patent(s) to telecoms vendors who wish to sell equipment that complies with the standard. Licenses must be granted on fair, reasonable and non-discriminatory terms – the assessment of what is ‘fair’, ‘reasonable’, and ‘non-discriminatory’ ultimately being left to the courts to decide in case of disagreement. Patents have therefore become tokens representing respective contributions to standards to permit a fair flow of royalties.
The 3rd Generation Partnership Project is currently putting the finishing touches to 5G, the latest and most advanced generation of cellular mobile communications. 5G networks and equipment (handsets, base stations, etc.) began to roll out at scale late last year, and this will accelerate throughout 2019. 5G promises improvements across the board, enhancing the capacity of cellular networks, their data rates, and the amount of information that can be transmitted over a given bandwidth (i.e., using the radiofrequency spectrum more efficiently). Of course, we’ve seen much of this before with 3G and 4G, and it seems likely that the legal battles that characterised those technologies will also repeat, though perhaps in a new form.
So why do we need 5G?
Where 5G will really shine is in reducing latency, the time required for data to travel across the cellular network. 5G promises to reduce latency by an order of magnitude, bringing latency down from around 10 milliseconds to one or two milliseconds.
Although reduced latency will enable many new uses for cellular networks, it’s in the autonomous vehicle industry that it could be a gamechanger. A car moving at 90 kilometres per hour travels 25 metres in a second, but only 2.5 centimetres in a millisecond, meaning that a self-driving car communicating with other cars using 5G could hit the brakes much more quickly, reducing the risk of a collision. Reduced latency will also enable advances in computationally complex technologies such as virtual/augmented reality and multiplayer gaming, where processing can be performed in the cloud – rather than on a user device – without comprising on reactivity.
5G will also play a pivotal role in the so-called Fourth Industrial Revolution (4IR). The list of 5G use cases is near endless, including factory and process automation, allowing robots to communicate with each other wirelessly, and remote diagnosis and remote surgery, enabling doctors to diagnose and operate on patients in remote locations. 5G’s improved data rates will be helpful in making cellular-based home broadband a viable alternative to traditional copper-based broadband. However, 5G will employ higher frequencies to achieve its higher data rates, and will therefore require a denser grid of base stations. The potential impact of 5G on energy consumption has been a source of concern, but right now it’s what society demands.
Is the war over yet?
The impact of 5G on patents will, as with most technologies, only become apparent in several years once patents have been filed, granted and, in some cases, litigated. Could 5G set the scene for a next-generation standards war? Most of the tech giants have now found an uneasy truce, in some cases following years of round-the-world litigation (remember Apple v. Samsung?). This time around, the battlefield could shift towards patents held by non-practicing entities (NPEs), in other words, companies that exist to hold patents rather than to manufacture products or supply services.
The legal authorities worldwide are working to balance the competing interests of patent proprietors and infringers. Unsurprisingly, the UK – known as a go-to destination for commercial litigation due to the quality of its legal system – is also establishing itself as a key jurisdiction for standards-related patent litigation. Therefore, in addition to a change in the parties enforcing their patents, we may also see more 5G disputes battled out in the UK, rather than the US. The battleground of choice may interest only lawyers, but the impact of 5G on society is bound to resonate beyond the courts.
For more information or advice, please contact Daniel Jarrett or your usual Kilburn & Strode advisor.