Ground-breaking technological innovations, landmark court decisions on high-tech cases, actions of governments to bring coherence in policies that matter for innovation and IPRs – 2017 has been another transformative year. We witnessed changes that will have a profound impact on the global technology landscape in the near future. In this short note, I highlight top ten international developments (in no particular order of importance) that have proven evolutionary in many ways.
Carte Blanche for SSOs: If there was one common agenda that standards engineers and patent counsels in the wireless communication industry tried to pursue, it was undoubtedly voicing their views on the radical changes made to IEEE’s patent policies. Scholars and practitioners analysed the drastic changes in submission of Letter of Assurance (LOA) specifically for 802.11 standard (because of which our WiFi’s work), as well as the decrease in new Project Authorization Requests (that unleash new R&D and innovations), signalling that the changes have, in fact, troubled innovators across the spectrum. Only time will tell if IEEE will do anything about this.
Unwiring Huawei in the U.K.: Without a doubt one of the most important legal developments in the raging debate around patent licensing on FRAND (Fair, Reasonable and Non-Discriminatory) terms was the London High Court decision of Justice Colin Birss in the high-profile litigation between Unwired Planet and Huawei. On the eve of Brexit, this case paved the way for UK’s debut into the evolving global FRAND jurisprudence. The court not only suggested a single FRAND rate, instead of a range, for a global licensing deal, but also touched the holy grail of injunctive relief in FRAND committed SEPs. In yet another first-of-its-kind court decision towards the end of 2017, District Judge James Selna in a dispute between TCL and Ericsson set a FRAND royalty rate for the first time in the United States for an entire portfolio of standard essential patents (SEPs) while stating that “there is no single rate that is necessarily FRAND”.
Non-Neutral-Net Nerve: A startlingly unique development to emerge towards the end of the year was United States Federal Communication Commission repealing net neutrality rules. Reversing a 2015 decision, the Commission voted to dismantle rules that regulated companies that were responsible for ensuring internet connectivity of consumers to the mighty internet, thereby granting broadband companies power to alter online experience of American consumers.
Intel-lective EC Analysis: Intel Corp will have one more reason in celebrating its golden jubilee in 2018. In a landmark decision in 2017, the Court of Justice of the European Union called for a deeper reexamination of Intel’s appeal as part of an eight-year long attmept by the company to set aside a massive fine of one billion euros for anticompetitive behaviour. Basically, the top court of Europe said that a thorough analysis of the context within which businesses that are under investigation conduct themselves in the market is always essential. The ripples of this decision will affect several pending cases in Europe against top tech companies on the other side of the Atlantic.
EC Playing the Bugle with Google: In June 2017 European Commission decided to impose a record-breaking fine of almost 2.75 billion USD against Google for abuse of dominance in general internet search and comparison in Google Shopping. Buoyed by the Intel decision, the internet-search giant decided to appeal against the legal decision. Only time will tell if the European antitrust watchdog is going to investigate Google’s supremely popular and revolutionary search engines dedicated to images, travel and even maps.
It was a busy year for “Quality Communications” a.k.a Qualcomm – a company that played a pivotal role in putting smart in the smartphone. From investigation initiated by the US Federal Trade Commission, a fine imposed by the Taiwanese government, to the technology giant engaging in what is going to be a long and winding road to justice with the largest IT company on the planet regarding use or abuse of its patented technologies. As Apple and Qualcomm raise the stakes and expand the scope of lawsuits, industry rival Broadcomm recently joined the fray. It turned out to be the unwelcome guest heralding the flag of a completely unsolicited takeover offer. Year 2018 will tell whether the markets and courts can snap the dragon.
A FRAND in Need...: Talks of monitoring and regulating FRAND licensing (while gearing up for 5G and IoT) were brewing within the digital underground since the beginning of 2017 around the world. Discussions culminated in the much awaited guidelines on the European approach to SEPs endorsing views expressed in Unwired Planet v. Huawei as well as in Huawei v. ZTE. Ditching the explosive ‘license for all’ clause, the EC communication rightly focussed on transparency, valuation and certainty in enforcement of SEPs, and was very well received by all stakeholders.
...is a FRAND indeed: Around the same time, the newly appointed Assistant Attorney General of the United States remarked on the role of antitrust law in the context of SSOs. Maken Delrahim’s remarks on importance of incentivizing innovations and supporting essential patents while using antitrust rules to make SSO processes more effective and efficient were supported by many across the board.
4th Industrial Revolution – Challenge Accepted: Japan started to formulate vision for a new industrial structure to address challenges and opportunities of connected industries. Having pretty much lost the mobile communication race to rivals, Japanese businesses and policmakers are trying hard to end their long running streak of being implementers of mobile communication standards, rather than innovators. The reality might be different. Japanese Patent Office had a long public consultation period in 2017 to decide on details of what constitutes patent licensing in good faith and what reasonable royalties for SEPs should be. Japan also moved away, rightly so, from the contentious proposal of an ADR system as part of their grand 2017 IP Promotion Plan that was described as amounting to compulsory licensing of SEPs.
5G – The Next Generation Mobile Technology Howitzer: It is a technology that is bound to fundamentally change how several things around us function, and how we communicate with them.What happened to live TV due to satellites, phone due to fiber optics and banking due to ATMs, is going to happen to the mobile telecommunication industry that will transform the way our world works currently. When the world’s first 5G data call was successfully completed by Ericsson and Telstra few weeks ago, the world understood that superfast data speed and ultra low latency are soon going to be a commercial reality around the world. Benefit of 5G communication will seep through smart vehicles, smart city infrastructure and will control all sorts of remote devices within the next couple of years. Year 2018 will tell us what sort of legal issues we will confront around the applications of this revolutionary technology and what lessons we have managed to learn from the past.