BRPTO releases study on 5G patent landscape in Brazil and worldwide

On July 20, 2023, Brazilian Patent and Trademark Office released a new edition of the “Technological Radar” on “5G Technology: Patenting Overview in the World and in Brazil“, with an analysis of the 5G Standard-Essential Patent (SEP) applications filed worldwide, with the aim of providing an overview of the actors, countries and technologies in the area and serving as a reliable source of information that can be updated periodically.

More than that, the study released by BRPTO demonstrates – right in its introductory sections – the recognition of the Patent Office regarding the evolutionary step represented by 5G and its related Standard-Essential Patents, as well as their centrality in the disruptive process of digital transformation and development of industry 4.0, given the diverse applicability in various social and economic sectors, including the automotive and health segments.

Unlike other studies, BRPTO’s work did not rely solely on companies’ self-declaration in ETSI and information from 3GPP, but rather cross-referenced information from several databases – including Derwent Innovation and BRPTO’s own Technology Intelligence Base (BINTEC) – to identify 5G patent documents, in addition to adopting a narrower concept of patent family.

In general, the countries that stand out as the origin of the technologies subject to these applications are China, the United States and Korea, and these are also the countries with the highest number of filings, especially via PCT, alongside the European Office. Brazil receives between 8 and 11% of the total number of applications – the variation stems from the distinction made by BRPTO between specific applications (relevant to 5G and independent of other generations of mobile telephony) and non-specific applications (general). The peak of filings occurred in 2018 in Brazil and in 2019 worldwide.

Likewise, the study presents the BRPTO’s understanding of the concept of Standard-Essential Patents, the way in which technical standards – and 5G in particular – are developed by Standards Development Organizations and the process of self-declaration of essentiality by the holders.

The paper also includes considerations on licensing practices, stating that “the only way to avoid infringement of these patents in relation to the implementation of the standard is therefore to request a license from the owner” and that “licensing is subject to so-called FRAND conditions“. Regarding fair, reasonable and non-discriminatory terms, the paper reinforces patent implementers must be treated equally. However, it recognizes that there may be variation in the fees charged to each licensee.

Still on licensing conditions, BRPTO highlights the existence of litigation in recent years and recognizes that the topic represents “complex legal challenges for courts, public authorities and the SDOs themselves“, but does not elaborate on its comments in this regard, so as not to detract from the technical nature of the study released.

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