A European Commission DG Growth initiative described in its Roadmap on Standard Essential Patents for a European digitalised economy aims to increase information on SEPs so implementers can get a better idea about which of these they might be infringing. Additional disclosures on how patent claims might read on the standards could be beneficial. Requirements should reflect the dynamics and uncertainties in standards development and patent prosecution and must not be onerous to patent owners. These are issues for standards development organisations to consider.
The notion of "peak smartphone" is widely discussed of late, including by the Economist. Revenues are flattening with longer replacement cycles, saturating markets, resistance to Apple's price increases, decreasing prices among Android's fiercely competitive OEMs and allegedly diminishing technical improvements in successive new device models. 5G holds massive growth potential, but much of that is in industrial and IoT markets that will take at least several years to establish themselves and grow to levels that will have substantial impact on overall device and service revenues.
US, China, Japan and Korea are seizing global leadership in 5G with support of coherent and helpful industrial policies in those nations across the entire mobile ecosystem including technology development, spectrum licensing, site acquisition and operator consolidation. All these nations will launch 3GPP standard-compliant 5G services in 1Q 2019, except for the US, that might start sooner, and Japan, where the first launches are expected before yearend 2019. The first 5G smartphones will probably be sold to consumers to be sold to consumers in 2Q 2019.
Recent new technology deployments with gigabit LTE at Telstra in Australia, Sprint in the U.S. and EE in the UK highlight how much mobile communications technologies have improved since the introduction of mobile data services with circuit-switched and then packet-switched offerings from around 20 years ago. Peak and average user speeds have increased by a factor of 10,000. By way of comparison, microprocessor performance doubling every couple of years, as predicted by Moore's Law, has increased it only one thousand-fold over that period. Cellular performance improvements are therefore quite spectacular given the vagaries of connecting through the ether up to hundreds of meters, as well as processing those signals in the confines of around one square centimeter of baseband processor silicon!
In March 2015, IEEE significantly amended its patent policy in what was couched as an "update" but that seeks to significantly revise commitments from parties holding patent claims essential to IEEE standards to license those rights on reasonable and non-discriminatory (RAND) terms. Changes disallow patent holders from receiving any value attributable to the standards, require licensing at the smallest saleable patent practicing unit level, and deny these rights holders entitlement to seek an injunction against an unlicensed implementer until appellate review is exhausted. IEEE’s stated objective was to protect implementers from patent holdup, which was alleged without any substantiation. IEEE is promoting, by reducing technology licensing costs, the short-term interests of certain implementers while undermining standard-essential patent values and the ability of SEP owners to receive adequate compensation, they are entitled to, from licensing their SEPs.
At last, American authorities are also beginning to do the right thing for owners of standard-essential patents. Under the previous administration of President Barack Obama, America's agencies did the wrong thing by seriously undermining standard-essential patents in various ways. For example, this existentially threatened the independence of Qualcomm, which relies substantially on its patent-licensing business to fund long-term R&D including that in upcoming 5G mobile communications. Thankfully, President Donald Trump's administration has recognised the important need to support, not undermine, the nation's technology innovators, and uphold their patent rights, as enshrined in the US Constitution.
In a major ruling that underscores judicial independence, federal judge Richard J. Leon has just unconditionally approved the merger between AT&T and Time Warner, rebuffing the US government's effort to stop the $85.4 billion deal.
Major innovations in cellular technologies arise largely from the substantial Research and Development (R&D) investments and inventions of relatively few companies, followed by widespread collaborations including many more in the process of standard setting.
While Ericsson is a leading contributor to mobile communications standards, a US District Court in California has significantly undervalued Ericsson's standard-essential patents (SEPs) by relying heavily on flawed "top-down" valuation analysis that prorates royalties by company for 2G, 3G and 4G based on SEP counting. This analysis applies a series of inaccurate assumptions which whittle down royalty rates from an understated notional maximum in a succession of unreliable steps. The resulting rates derived are a lot lower than those found in a European court's FRAND determination for the same company in the same year (2017) and for the same 2G, 3G, and 4G patent portfolios. The differences between these US and European determinations are irreconcilable.