The Developing 5G Patent Race 

5G is expanding rapidly across the globe; forecasters are projecting 1.3B connections by the end of 2022 alone, and the 2021 Ericsson Mobility Report expands that to 4.4B by the end of 2027.  

Despite rapid adoption and likely commercial success, there is no clear 5G patent front runner. The USPTO recently released a report that argues “no company or country leads in 5G patenting.” The data that underlines this report is pulled from 5G patents that were self-declared, meaning they were not checked for essentiality or validity. Regardless of the difficulty pinpointing a leader, the 5G patent race is becoming increasingly competitive, with 5G on track to become one of the most lucrative Standard Essential Patent (SEP) markets. An SEP is a patent that claims an invention that must comply with a technical standard. 

The number of unique patent owners has increased from 99 in 2010 to 261 in 2021, a growth largely attributed to new market entrants from South Korea, China and Taiwan. This represents an industry-wide shift, as US and European companies largely dominated 4G technology development while Chinese and South Korean companies can be viewed as leaders in 5G development. These two Asian countries have the most active and granted 5G self-declared patent families.  

Businesses headquartered in China are leading in the number of declared 5G patent families (US or European granted), but not all self-declared patents are considered essential and valid. Some patents include core technologies of the standard, while others merely claim small improvements to the standard. When examining the share of approved technical 5G contributions, a different story is being told. European companies represent 37.04% of these contributions, a number that is much higher than their % share of declared 5G patent families.  

The reality is that these statistics are misleading as not all standards are subject to SEPs. More advanced and nuanced data is required to bring clarity to self-declared patent data. 5G is an incredibly complicated technology standard, featuring over 1,200 technical specifications. Given the varying usage of 5G within different systems, some argue not all 5G patents are relevant. While a total of 50,415 global 5G patent families have been filed, 86% of all 5G declarations can be attributed to the top 10 core technical specifications.  

We are just beginning to witness the legal battles that will arise between SEP holders, and standards implementers outside of the smartphone industry. A recent SEP lawsuit was filed against Ford in Munich, resulting in the company losing the right to sell cars with LTE-enabled communication tools in the country of Germany until the requirements of the patent holder are met. Given advanced driving systems rely on 5G-enabled connectivity, it is still difficult to determine the precise value that 5G brings to a vehicle, which points to more litigation on the horizon in this industry.  

The reach of 5G is expanding, with many other industries expected to adopt the technology via IoT applications. As this trend continues, SEP holders will look to monetize and enforce their portfolios of SEP that cover 5G standards. The high-investment environment offers lucrative opportunities for these SEP holders, but challenges will persist in avoiding financial risks and costs associated with litigation.  

The data and trends outlined above demonstrate that 5G SEPs are primed to become a major issue across industries that involve connectivity as they come to rely on patented 5G technology standards. To better understand this landscape of 5G patent holders, it will be helpful to not only consider patent data but also pay close attention to patent declaration data and SEP claims. SEP determination is a critical element when making predictions on who is leading the 5G patent race, but more analysis is necessary to pinpoint essentiality rates, which differ across self-declared patent portfolios.  

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