Creating New Legal Horizons With 5G Technology: A Conversation With The Clarivate Analytics Team

The coming 5G world promises to fundamentally alter the full range of digital technologies with profound and far-reaching effects on global economic activity. What will the advent of 5G mean for the practice of law? How will the day-to-day experiences of attorneys necessarily evolve within a 5G tech ecosystem? 

We recently spoke with three members of the Derwent patent analytics team at Clarivate Analytics: director Ed White, associate director Parijat Oak, and senior manager Gaurav Sawant. Clarivate is a relatively young company, having divested from Thomson Reuters back in 2016 and since gone public in May 2019, with international offices in over 42 countries spanning everywhere from Tokyo to London to the U.S. West Coast. 

Among other things, we discussed the company’s work in the 5G space and the transformative potential of these emerging technologies on the legal industry. The following is a condensed version of that conversation, edited for clarity.

Clarivate’s “deep curated data sets” drive decision making

Ed White: Clarivate Analytics offers solutions to cover the entire lifecycle of innovation: scientific and academic research; patent analytics and regulatory standards; pharmaceutical and biotech intelligence; trademark, domain and brand protection. 

Our portfolio consists of some of the world’s most trusted brands, including Web of Science, Derwent, Techstreet, Cortellis, CompuMark, and MarkMonitor, that serve the aforementioned industries, respectively. In addition to the curation of deep content sets, we also supply the tools, methodology, and expertise to interrogate and mine those data sets to help with decision making and accelerate the pace of innovation. 

Why is 5G so important?

Ed White: I actually look back to the late 1990s and what happened with the internet and commerce. It completely changed the way that the world exploits connectivity. This is going to be one step forward again as the bandwidth available via 5G essentially decouples data transmission from a physical connection. Anything that you can imagine that either supplies data or exploits data can suddenly be connected much more economically without the need to lay cabling. 

In addition, most people think about 5G in terms of very high speed, and that’s true. But the physics of information theory enables a swap of speed for reliability, for example, there will be cars talking to traffic lights where high speed is not needed, but this needs an extremely reliable connection so that the communication between cars and traffic lights does not break down. The “always on” reliability of 5G will be a game-changer. 

Clarivate’s work toward building a 5G dataset

Gaurav Sawant: We are evaluating standard essential patent holders in the 5G domain. So far, we have evaluated more than 10,000 patents against the industry standard to understand whether those patents are standard essential or not. This is very important in patent licensing. We are also closely monitoring the technical proposals submitted by various companies to the standard setting organizations that are responsible for developing the standards.

At the same time, we are keeping a close watch on the development of new technical standards. Recently we worked with the Taiwan Intellectual Property Office on a 5G landscape, which identifies different top innovators, leading countries, and other aspects of the 5G landscape.

Gaurav Sawant: 5G is still under research and evolving. Hence, it is very difficult to identify technologies which will support/enable 5G. Without identifying these technologies and corresponding patents, and by considering only patents which specifically talk about 5G, the 5G patent landscape would have been incomplete. To address this, we studied numerous technical materials from telecom companies, specifically, we studied technical contributions from companies towards 5G standards. It helped us to identify technologies which were proposed to meet requirements of 5G such as peak data rate of 10 Gbps, latency of less than 1 millisecond and so on. Keywords and patent classification of these technologies were used to build the patent dataset. Patents declared essential to 5G standards by various companies on the European Telecommunications Standards Institute website is also a good source for 5G core technology patents.

The “essentiality problem”

Gaurav Sawant: A patent licensing manager of a company must at some point, commission a standard essentiality check study to find out patent assets that are actually essential to standards that are approved.  Even a small deviation in the SEP count could mean hundreds of thousands of dollars in lost licensing revenue given the huge market involving 5G technologies. Our experience on 3G and 4G essentiality analysis involving more than 30,000 patents strongly indicates that only a fraction of the declared patents is eventually essential.  There are multiple reasons why this is so, including the fact that standards undergo change over time and the tendency of companies to exercise an abundance of caution on the side of inclusion when they declare potentially essential assets to meet stringent IP declaration requirements of standard setting bodies. Therefore, it becomes imperative to conduct a detailed essentiality check before any commercial negotiations involving SEP assets.  

Solving the “essentiality problem” algorithmically using Artificial Intelligence

Parijat Oak:   I think it’s a classic case of cost and accuracy trade-off.  I expect these algorithms to do intelligent text clustering, concept matching, or even context matching to an extent.  They may quickly identify for you patents that may be closely related to standards based upon these commonalities. However, ascertaining essentiality to a standard goes beyond that.  For example, when it comes to essentiality, each and every claim element of a patent must be mandated by the standard specification. Even if one of them, just one of them, does not map to the standard, the patent is not essential irrespective of how closely overlapping both are conceptually.  I don’t see in the near future algorithmically solving this problem to a degree of accuracy that a patent attorney would like. To be clear, standard specifications are only one of the many complexities involved in performing essentiality analysis that the AI algorithms may not be able to consider.

Ed White: There’s an interesting dichotomy based on where we are with AI at the moment. The more critical the task, the more at stake, the less happiness or even suitability of AI being applied to the problem. How happy would you be for a court judgement to be made on a case by an algorithm? It’s essentially the same question.

The emerging 5G licensing space 

Parijat Oak: It is too early to definitively predict how the licensing scenario would play out.  One thing would be sure that it will be significantly more complex. It is in a way related to the diverse and fragmented IP holding in 5G that we have observed.  There is no getting around to taking a license to patents covering core 5G technology owned by the traditional players. But, that’s not all. Practitioners will also have to be mindful of infringement risks emanating from other players that may own inventions covering applications that are 5G enabled.  Consequently, they would need to obtain licenses from these fragmented set of players to mitigate those risks. That would make the whole thing more challenging. There are no 5G patent pools yet. However, we have already seen that Nokia, Qualcomm and Ericsson are off the block – announcing licensing frameworks for their 5G-related patents.

The implications of 5G technology on the legal industry generally

Parijat Oak: I think the most critical aspect is going to be apportioning liability. And that’s going to be huge. Secondly, with 5G everything is now going to be connected, and it’s going to use huge amounts of data and that would bring in data privacy and data security concerns. So again, the guidelines and laws need to be addressed.

We know 5G is going to make videoconferencing a breeze. Lawyers won’t have to personally meet clients face to face. They could have very easy interactions with their clients using their phones. This in turn would potentially reduce costs, particularly when it comes to travel expenses. And going beyond that of course, I mean you already know that depositions and such are allowed by Skype. So taking that further, is it a possibility to extend these remote connections to courtrooms and hearings as well? 

Ed White: Going back to the question of “what did the internet change in the legal industry?” In large part, it both didn’t change a lot, and it changed everything, which is a bit of a non-answer! A lot of legal practice is determined by the way that entities interact with government and regulation. Whether that’s a courtroom, whether that’s a government agency or what-have-you. You can take those trends as a paradox that will continue.  In addition, to Parijat’s point, the emergence of the internet created new legal horizons and areas of contention and risk – privacy, security, political discourse, or just legal liability. 5G will boost that trend once more.

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