India: 5G, "FRAND" And The IPR Regime

Last Updated: 11 June 2019
Article by Maahi Mayuri

Recently in 2018, the Court of Appeal Judgement (UK) in Unwired Planet v Huawei Court of Appeal brought down various highlights regarding patent licensing further reflecting that it is truly complex in nature. The judgment further threw light on the necessity of negotiating intellectual property licencing in sectors such as technology and telecom in a flexible, transparent and a level playing field.

The judgment only fulfilled the much anticipated predictions of turning of tables further redefining the powers of various Multinational Corporations. The case settled that worldwide licensing rates would only be fair, reasonable as well non-discriminatory i.e., "FRAND" considering in mind the complex, expensive and time consuming negotiations of multiple patent licenses in the virtual world. Traditionally, power in the hands of licensee has always given them an upper hand irrespective of where they stand financially. These types of parties are in the position of either hindering or stalling negotiations (holding up) or not obtaining a patent license at all. While obtaining a licence in a "FRAND" i.e., fair, reasonable and non-discriminatory manner as discussed above is not only efficient as well as fair in consideration of their efforts but also allows them to obtain to the core, the full benefit of their technologies.

The much anticipated 5G technology is expected to play the role of a much needed catalyst supporting various innovations having far reaching impacts on several sectors such as healthcare, automotive, research, defense, manufacturing as well as many more sectors vital to any economy. Recognising the 5G R&D fairly will be an essentially critical step in the new era with businesses becoming responsible to appreciate the complexities of the IP regime so as to obtain benefits to the maximum.

How we could re-balance power using the "FRAND" i.e., Fair, Reasonable and Non Discriminatory Method?

It is proposed that various negotiations relating to Intellectual Property need to be governed using the fair, reasonable and non-discriminatory, i.e., "FRAND" terms. Referring to various well defined benchmarks will not only encourage dialogue, offers and counter offers, open as well as amicable negotiations but would also reduce litigation to a minimum.

But it would be wrong to be optimistic in the first instance considering in mind the Apple v. Qualcomm battle which only further shows the convoluted as well as the ever-so-expensive nature of Intellectual Property licensing. Apple was sued successfully by Qualcomm who alleged it for infringement of patents, further resulting in a ban on some of Apple's models of the iPhone in China as well as Germany. The ban however excludes reseller sand some of these modes are still for the time being available to some extent. Though, there could be no immediate impact seen on Apple's sale or public perception. It is critical to keep a check on this situation's development through 2019. Further, Intellectual Property licensing is no longer limited to hi-tech or technology companies comparing the likes of Huawei, HP, Microsoft, Apple or Qualcomm. 5G gradually arriving opens doors to various new sectors into the industry who as a priority need to improvise their IP regime.

5G among the Cultural Clashes

5G has shifted vastly from the traditional work of communications which aimed at connections between the internet and electronic devices, it has unlocked various opportunities of importance in vertical sectors. 5G is focused on the development of technologies in various sectors such as healthcare, agriculture, automotive, mining as well as manufacture being the industries where business cases which are compelling in nature lie. 2019 is expected to see fruition coming to various innovations further raising complexity and various issues over how crucial components of connected products are to be licensed. Considering car manufacturers, they would have to reach the level of obtaining, researching as well as negotiating each function, chipset and feature of their cars.

Thus, a cultural clash is surely to be witnessed in 2019 where capitalising on IP would be the aim of various vertical sectors. The IoT is further expected to know all things about Intellectual Property further becoming technical experts. Failing to expertise in IP and the 'FRAND' regime would result in numerous litigations thereby stifling progress.

Is education in IP necessary for efficiency in 5G?

Some of the most innovative ideas which could further lead to socio economic benefits come from the various vertical sectors that are now entering the Internet of Things. There are many such examples that could be seen in sectors such as healthcare, automobiles, etc. Many entities in various vertical sectors would have to deal with completely new situations with a new range of experiences. This would require education as well as guidance of these entities for a well-defined route to IP licensing. For optimum development, various innovations and out of the box ideas, it thus becomes necessitated that these entities function harmoniously keeping in mind the new rules around the IP regime and its management.

To conclude, the approach brought forward that is Fair, Reasonable and Non-Discriminatory, i.e., "FRAND" should be applied to its level best to reduce conflicts to a minimum and create a harmonious and smooth environment between and for the IP regime and 5G technology.

Footnotes

[1] https://www.forbes.com/sites/tiriasresearch/2018/12/01/5g-ip-leadership-its-too-early-to-determine/#16b4793b2126

[2] http://ipforbusiness.org/who-owns-5g-and-the-future-of-the-internet-of-things-patent-analysis-clear-the-thicket

[3] https://ieee-wf-5g.org/2018-patent-law/

[4] https://hackernoon.com/5g-networks-can-change-the-way-we-live-for-better-or-worse-ed2b3fc6b0e6

[5] https://www.ipwatchdog.com/tag/5g/

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions