I recently posted about 5G, Stagnation and Innovation (sepessentials.com), and wanted to take a deeper dive into one of the issues that was buried in my footnotes. In particular, I am still floored by the number of patents claimed to be essential to the 5G standard, particularly given that 5G is essentially a mashup of previously existing technologies with some tinkering and updates around the edges. I can only conclude that the 5G patent space (and maybe the 5G standard itself)[1] is full of bloatware.
Definition of Bloatware:
a. Unwanted software included on a new computer or mobile device by the manufacturer[2]
b. Programs that use a lot of space and memory, often programs that are already on a computer or phone when it is bought, and that may not be needed by the user[3]
Let’s start with a primer on basic 5G technology. I’m pulling this more or less from footnote 9 from the previous post so you can skip (or skim) this part if you already read those footnotes or know the technology well.
Qualcomm, a major 5G SEP owner and a 5G implementer, has characterized 5G as being based on the same underlying Orthogonal Frequency Division Multiplexing (“OFDM”) technology as 4G, and has said that both 4G and 5G operate “on the same mobile networking principles.”[4] In addition to OFDM, these re-used technologies and “same mobile networking principles” include small cell technology (used in some 4G implementations); the split plane architecture (which was already in the 4G backplane in a somewhat different formulation and has been used previously in other types of networks as well); and packet-switching (used in 4G and also in WiFi).
Not only does 5G re-use many existing 4G technologies, 5G also borrows numerous existing technologies from WiFi (and other places). These borrowed technologies include Multiple Input Multiple Output “MIMO” and beamforming (used in WiFi for over a decade); device-to-device communication (long used in WiFi networking circles under the term peer-to-peer and now under the updated moniker “Machine-to-Machine”); multi-hop mesh (another older WiFi networking technology); the ability to operate in the unlicensed bands (traditionally the domain of WiFi) and the list goes on and on.
So, given that so much of the basic 5G technology is recycled from 4G and WiFi, how many patents would you imagine would be (claimed to be) standard essential? The same as 4G/LTE?[5] Less than 4G/LTE because, after all, 4G/LTE really was a big improvement over 3G and 5G does not seem to be that much of an improvement over 4G/LTE (despite all of its claims)? Would you guess that the number of declared patent families for 5G is nearly three times the number declared for 4G? Would you guess that the number of declared patents for 5G is approaching 350,000?[5]
350,000 patents and patent applications for 5G – the number simply boggles the mind. So next time a court, commentator or government agency asks why an implementer has not simply approached a SEP holder seeking a license or has blamed an “unwilling” licensee for “dragging out” negotiations, keep this number in mind. When there are so many patents claimed to be essential to a standard, it takes an immense amount of time, energy and resources to determine (a) which of the declared patents are bloatware (not essential or not valid) and which are valid and essential and (b) what a FRAND rate should be to license each valid and essential patent within the context of the standard as a whole. It seems wholly unreasonable in these circumstances – when standard developers clearly have engaged in massive over declaration[5] - to expect any single company, even a very large one, to quickly make such determinations.
Moreover, putting that burden individually on the thousands, possibly hundreds of thousands, of implementers is a tremendous, combined waste of money, time and resources. Far better to have a single, trustworthy, neutral and independent entity undertake such analysis once, and make it available to all licensors and implementers.
[1] Traditional bloatware has a tendency to slow down processing speeds, interact in unpredictable and unfavorable ways with wanted programs and technology and to take up a lot of space that could have been better utilized for other things. So maybe the 5G rollout has floundered because 5G is so full of the standard equivalent of bloatware.
[2] Search google.com “bloatware definition”
[5] According to one assessment, the 4G stack comprises an already bloated 23,000 patent families with about 138,000 patents. 4G-5G Landscape Update (squarespace.com)
[5] Questel-56-SEP-analysis-report-jan-24 (questel-website.s3.eu-west-3.amazonaws.com). The study also reports that it found an average essentiality rate of only 20% meaning that 80% of the declared patents are bloatware and not essential.