The exponential multiplication of the quality, quantity and speed of data transmission that the 5G mobile technology will allow, will mean an immense technological leap. The massive communication, continuous or on demand, of millions of devices, applications and machines will be the new technological paradigm.
This change will transform the way of operating of traditional industries and services such as the health sector, the automobile sector with the connected and autonomous car, logistics, financial services and also fast-growing digital sectors such as cybersecurity, artificial intelligence or Big Data.
The management of industrial property especially in the beginning and in the development of the Connected Industry will be a huge challenge for the normative, legislative and judicial ecosystem in general and for the industry in particular.
In the first generation of mobiles -2G-, as mobile manufacturers Nokia, Ericsson or Motorola had participated in the creation of the technological infrastructure and essential patents necessary to implement this technology, the management of industrial property was resolved through cross-licensing between them.
During the first decade of this century, with the entry of new players in the mobile industry such as Google or Apple, who had not participated in the creation and development of the first generations of the GSM standard, 2G, 3G and later 4G, there was a “patent war” between these and the first ones in order to access the essential patents associated with the GSM standard, necessary to manufacture smartphones.
What will be the great challenges in the development of the Connected Industry and the 5G from the intellectual property perspective?
First, the large number of holders of essential patents and the lack of clarity about their capacity as such.
Secondly, the large number of new players that will need access to these technologies and, therefore, also to the patents to implement them in their respective business models. This atomization has been mitigated with the creation of platforms (patent pools) that simplify the negotiating costs to access patents. However, they do not guarantee an integral coverage of the essential technology and, therefore, the actors will have to close bilateral agreements.
Finally, it will be necessary to define whether the royalty of essential patents license should be calculated on the final product or on the cost of the device that implements the technology. The Commission took a Solomonic decision and did not want to choose for the moment. We will see if the new saga of the patent war is announced soon.
