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As a booming NFV/5G infrastructure market looms will we see the old patent wars back?


via Flickr © burgundavia (CC BY-SA 2.0)

It may be a sign of the rude health of the developing SDN/NFV and VoIP market, or it may be just ‘one of those things’, but an ongoing patent spat between NFV/SDN specialists GENBAND and Metaswitch over VoIP technology highlights one of the more unwelcome aspects of so-called ‘hockey-stick’ boom markets (which many observers believe telecoms virtualisation and its allied specialisms will prove to be). Patent disputes.

They tend to divert resources, reduce confidence and generally inject fear and loathing into whatever is being fought over and they may be back.

The case of GENBAND v. Metaswitch started with accusations of patent infringement against Metaswitch in 2014. Metaswitch (as is the way of these things) mounted a so-called follow-on case alleging similar violations by GENBAND. In January the jury found in favour of GENBAND on the original suit and awarded damages. Now the Metaswitch case against GENBAND has just been decided and (according to Metaswitch) it “found both companies’ patents invalid and not infringed,” and awarded no damages.

“We believe that by rejecting both party’s claims, the jury sent a message to the parties that competition should stay in the marketplace, not the courtroom,” said Martin Lund, Metaswitch CEO.

GENBAND has a different take and is “seeking an injunction based on its success in the January trial to prevent further infringement by Metaswitch.” It appears that the dispute may rattle on

IP disputes are always with us, but high stakes patent wars were last seen 3 or 4 years ago in the heady days of the smartphone hockey stick and it may be that we’re back there again.

How does the game work?

As the tech industry and patent and copyright law has evolved, patents have been deployed en-mass much like a nuclear deterrent. In a very high stakes game all sides can have thousands (literally) of patents, the idea being that if one side was silly enough to deploy a first strike -  usually a claim and an injunction on the patent’s/patents’ further use -  the other side or sides could find enough arguably relevant patents in the war chest to mount a counter-strike.

All sides would then attempt to wrestle each other to the floor (or perhaps to the flaw) with claim, counter claim, appeal and injunction until it became apparent that all were losing because of  time-to-market delays and legal fees. At which point the adversaries would settle with a patent licensing agreement and emerge arm-in-arm on the courtroom steps.

So should we worry that patent wars are going to break out again around next gen carrier technology such as NFV, SDN and new radio technologies including those targeting 5G?

Almost certainly. Development ecosystems and agreements between vendors and service providers along with, open source development  should in theory diminish the chances of a nuclear exchange, but on the other hand the primal R&D urge to have as many ideas as possible and, just as important, to get down to the patent office to register them quick, seems alive and well. It only takes one itchy finger near the button and we’re off again.

TelecomTV’s Insights database has the evidence that patent arsenals are being built at a frenetic pace and companies are proud of the sheer number of warheads they are amassing.

Huawei says it’s “risen to the 4th position in the ranking of companies filing patents with the European Patent Office (EPO), the office’s annual report published today has revealed. The company filed a total of 1 953 applications with the office in 2015. For the second year in a row, it topped digital communications, boasting 1 197 filings in this sector alone.”

So while big in comms, overall Huawei is still a minnow in comparison to say IBM, which in 2015 secured 7,355 patents (mostly in computing of course) and in the previous 23 years amassed  88,000 US patents. At this rate - like possible moves in a game of Go - there may eventually be more patents registered than atoms in the universe. I just made that last statistic up, but maybe if I’m quick I can register it online before anyone else thinks of it.  

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