5G Technology - Patent Protection and Licensing

5G Technology - Patent Protection and Licensing

The roll-out of 5G cellular networks across the globe is well underway with networks already launched in Europe, the Americas, Australia, and Asia. For example in the UK, all four major networks offer 5G services, and over 100 major British towns and cities now have at least some degree of 5G coverage. For the customer, the key questions relating to 5G are ‘What benefits will I receive from 5G?’ and ‘How can I access 5G?’, with the respective answers being lower latency and higher bandwidth connections via a 5G compatible handset and 5G SIM card located in a suitable coverage area. But for the interested customer, or indeed anyone interested in this new generation of cellular networks, these questions merely address the tip of a very deep iceberg.

5G is far from being a single technology; rather 5G is a technology standard that combines a variety of technologies producing the key improvements in data bandwidth, network latency, power efficiency, uptime, and overall coverage. The development of the underlying technologies that enable each of these outcomes has already resulted in thousands of patent applications being filed by telecommunications and wireless technologies companies from around the world. The technologies that enable these improvements focus on addressing several broad issues facing the successful implementation of the 5G standard. Namely increasing the spectral efficiency of the 5G spectrum, increasing the spectrum’s pathways and the practical implementation of Edge Computing.

The 5G spectrum refers to the radio frequencies that carry data from user equipment to cellular base stations to the data's endpoint. Spectral efficiency is a measure of how efficiently a limited frequency spectrum is utilised. Specifically, spectral efficiency refers to the rate at which information can be transmitted over a given bandwidth. 5G technologies promise to provide significant gains in spectral efficiency, enabling peak speeds that exceed 30 bits per second per Hertz, which is the maximum spectral efficiency offered by 4G LTE technologies. These increased speeds are achieved by the use of multiple-input/multiple-output (MIMO) antennas that divide a transmitted data signal into various streams through the use of multiple transmitters and multiple receivers.

Additionally, densely populated, urban areas present further challenges to improving cellular networks beyond 4G systems such as: i) obstacles, mainly buildings, between a cellular antenna and a user; and ii) interference from signals being sent between other users and an antenna. MIMO beamforming seeks to overcome this by sending a downstream signal precisely to the user. A user’s precise location is triangulated using reflected, refracted, and diffracted upstream signals, and by using multiple radiating elements and modulating the frequency or phase of the signal, a downstream signal can be directed toward that user. With regards to increasing the spectrum’s pathways, a challenge facing the industry is enabling devices to seamlessly switch between the various 5G bandwidths to achieve the optimum combination of speed and range for the user.

Another area of development concerns Edge Computing. In the context of 5G, this refers to the processing of data physically closer to the user i.e., closer to the edge of the network rather than at a handful of regional data centres. Offloading key tasks to edge computing nodes reduces network latency as computations that would have previously been handled at a central location instead occur physically closer to the user. Moreover, since every packet of data no longer has to travel significant distances through a network, bandwidth is freed up for other uses.

5G technologies are still in their infancy with consumers only recently being able to take advantage of the high speeds/low latency network. However as more nodes are added to the network and more consumers adopt 5G devices, combined with current developments in the field of Internet of Things enabled sensors and devices, there will be an explosion of new 5G enabled applications. This revolution will not only be focused on the telecommunications sector, but has the potential to disrupt most industries, such as the retail sector, agriculture, the automotive and transportation industry, manufacturing, utilities, healthcare, and security.

To protect 5G technology inventions in Europe, it is important that the technical character of the invention is clearly explained. The European Patent Office (EPO) look for a clear demonstration that the 5G invention solves a technical problem and has a technical effect before deciding to allow a patent application to proceed to grant. An example of a technical advance would be an improved feature of a telecommunications network to enable greater bandwidth for data transmission. The EPO will not be convinced by the presence of purely business steps or financial aspects or other non-technical features. It is false to say that software patents are not allowed in Europe. The EPO receives thousands of patents involving software annually. But having expert advice is key to successfully obtaining patent protection at the EPO.

An important requirement of most Standard Setting Organisations is that members are required to undertake that any patents which cover the technical specification of the standard will be licensed on fair, reasonable and non-discriminatory (FRAND) terms. In the UK, the Supreme Court recently considered whether English courts have jurisdiction to grant an injunction against the infringement of a standard essential patent (SEP), and in particular depending on whether the defendant enters into a global licence on FRAND terms for a multinational patent portfolio (Unwired Planet v Huawei). In their decision, the Supreme Court ruled that English courts do have jurisdiction to rule on the contractual defence relied upon by SEP owners in accordance with the ETSI Intellectual Property Rights policy. That is to say, in the absence of an international tribunal for helping to enforce SEPs and set global FRAND license terms, enforcement falls to national courts in accordance with the regional and national standardisation policies. A potential consequence of this decision is that if courts in other jurisdictions determine that they too have the ability to set the terms of global FRAND licenses, then there is a risk of forum shopping by SEP owners and implementers and the complex legal instrument of anti-suit injunctions – all with the goal of trying to settle global FRAND licensing terms based on what may be the most favourable decisions made in certain jurisdictions. For Unwired Planet v Huawei in the UK, the court deemed it appropriate to award an injunction due to Huawei infringing at least one Unwired Planet patent and declining Unwired Planet's FRAND offer, thereby barring Huawei's sales of infringing products in the UK. This decision marks the UK as a prominent jurisdiction for handling global FRAND licensing disputes in the telecoms sector. With increasing 5G patent portfolios many of them eligible for SEP status, the licencing of these SEPs under FRAND terms is a major consideration for the telecommunications industry.

At Secerna we advise clients on all aspects of Intellectual Property (IP) protection and enforcement in the fields of 5G and its applications. We would be delighted to discuss this article with you should you have any queries.

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