This study investigates the patent situation for the 5G standard. The study was commissioned by the German BMWi – Federal Ministry for Economic Affairs and Energy and was conducted by the Technical University of Berlin and IPlytics GmbH. Telecommunication standards are often protected by ten thousand of so called standard essential patents (SEPs). These patents claim inventions that read on any implementation of the standard. In other words, anyone who implements a standard like 3G, 4G or soon 5G will also have to use and implement all SEPs. Companies developing these standards have to commit to license any SEP under fair reasonable and non-discriminatory (FRAND) terms. This ensures that no patent owner can block any implementer from using the standard. However, patent owners have the right to request royalties for SEPs and any implementer has to pay a license fee in order to implement 3G, 4G or in the future 5G.

The study is based on publicly declared patents and submitted standards contributions that were identified for the 5G standard. Patent declarations cannot be interpreted as legally verified standard essential patents. Still patent declaration data is the best source to identify all potential essential 5G patents. The data analysis of this study was conducted using IPlytics Platform on January 1st 2020. The IPlytics Platform data is based on declarations submitted to the ETSI IPR database[1] and standards contributions submitted at the 3GPP portal[2]. Both information on the patent data and the standards data were correlated to identify only 5G relevant information. Further the patent data was correlated to patent data from worldwide patent offices. The method of how to identify 5G patents and standards contributions was discussed and verified by a consortium of patent and standards industry experts that supported this study with technical expertise.

The results of this study show that the 5G standard is highly patented. In total 95,526 5G declarations patents have been declared for 5G which breaks down to 21,571 unique patent families. Only 44% of these patent families have yet been granted. However, as most 5G patents are rather recently filed one will expect the rate of granted patents to further increase in the next years. Most 5G patents where declared between 2017 and 2019 showing a sharp increase year by year. And as the 5G standard development is not yet completed further patent declarations are expected in the upcoming years. It is also worth mentioning that 24% of the patents declared for 5G have before already been declared for 4G. This shows that some 4G technologies are still relevant for the new 5G specifications.

This study also investigated companies’ participation in the standards development, where technical contributions submitted to the 3GPP (3rd Generation Partnership Project) – the standard body that develops telecommunication standards such as 3G, 4G and 5G – were counted and analyzed. The main 4G standard developers such as Huawei, Ericsson, Nokia, Qualcomm, ZTE or Samsung and LG are again strong players for the 5G development. Here again the data shows increasing participation from new and upcoming Chinese players. When counting only approved 5G standard contributions, Huawei, Ericsson, Nokia and Qualcomm are the strongest players.

The study further discusses the implementation of the 5G standard in industries such as the automotive sector, the manufacturing industry, the energy sector, the media sector and the healthcare sector. Here the study investigates possible licensing scenarios for 5G. In this regard a new licensing platform was created a few years ago called AVANCI. This patent platform licenses 2G, 3G and 4G SEPs for the use of these patents in the automotive space and the IoT space. Companies from the automotive sector can get a one stop license to get access to all 2G, 3G and 4G SEPs of AVANCI members for a total of USD 15 per car. The study shows that a majority of SEP patent owners have joined AVANCI, however Asian companies such as Huawei, Samsung, LG or ZTE as of today have not joined. For licensors in the automotive space or for licensors of any IoT applications it remains to be seen if there will be a patent licensing program for 5G and also if a majority of the SEP owners will join. Otherwise 5G implementors will have to negotiate licenses with each individual patent owner. The 5G licensing in general is yet hard to predict, which may create a certain legal risk for today’s implementors.

Finally, the study discusses different interpretations of a FRAND license for 5G SEPs. The study concludes that current litigation on SEPs shows that many issues such as who will have to get a license, the OEM (Original Equipment Manufacturer) or the supplier, will the license be based on a component or a final product and will the license be a fixed rate or a percentage of the component or on the final product’s net selling price, are still open for discussion.

This 5G patent study is fact finding. Results are neutrally presented and discussed, without making policy recommendations. The 5G patent study is based on publicly declared patents and submitted standards contributions that were identified for the 5G standard. Patent family statistics presented in the study are not verified standard essential. The study also makes no effort of an independent assessment of essentiality or assessment of validity of the declared 5G patents. Further this study does not provide any suggestions about the percentage of actual essential patents or a variation of essentiality among different 5G patent portfolios. Results of the study have been presented to and discussed with over 120 patents and standard experts as summarized in Appendix 3.

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