Infringement: an issue at the heart of intellectual property

“The strong growth of patents in telecommunications in recent years clearly poses an infringement threat to industry stakeholders, not to mention carriers.”

Intellectual property rights specifically protect the innovative nature of Orange’s networks and services.
The carrier’s inventions are sometimes subject to infringement by third parties. The size of Orange’s patent portfolio often deters third parties from taking action.
This article is a complement to the folder "Intellectual Property, a marker of innovation".

“High Efficiency Video Coding” or HEVC, is a codec, a video compression standard. It can reduce the file size of an HD or Full HD video by about 50% and, therefore, the bit rate required to send it, while maintaining the video quality.
Developed around seven years ago and now embedded in all smartphones, tablets, routers, etc., this standard is closely monitored by Orange engineers, who have broken ground in the video coding field and are advised in this respect by patent lawyers in order to protect their inventions. Their role is, first and foremost, to obtain the most favourable patent by investigating upcoming infringement cases and also throughout all the years of proceedings before the patent offices of the world. Secondly, they confirm whether or not this standard is being infringed using filed patent portfolios.
Defined as the exploitation of an intellectual property right without the authorisation of its owner, infringement affects trademarks, designs, patents, copyrights, software, integrated circuits etc.
Basically, for inventions to be protected, a patent needs to be filed. In order for there to be infringement, there must be a patent and proof of the existence and prior art of the invention. A person who wishes to use an idea that has been protected and is therefore clearly identified as the property of another must request authorisation from its inventor. The inventor may grant them a licence for a fee. Using such an idea without an agreement constitutes an infringement.
Telecommunications: an industry of infringements
According to Sandrine Millet, Director of Intellectual Property and Patents at Orange, “the strong growth of patents in telecommunications in recent years clearly poses an infringement threat to industry stakeholders, not to mention carriers”. Infringement can affect any sector: from mobile networks to television services to satellites. It is at the heart of intellectual property activities.

There can be no infringement if a patent has not been filed
Most of the time, the enforcement of intellectual property rights requires there to be a patent that has been filed. A patent prohibits the non-negotiated use of an invention for twenty years. Once an idea has been registered and published, the means to prohibit and/or monetise its use must be available, “an objective that can prove complicated in the telecommunications industry, especially in a group like Orange which, with a portfolio of 8000 patents, covers a wide range of activities”, notes Sandrine Millet. “So, to detect infringement, there are several approaches available to us”, she says.
Patent lawyers can, first and foremost, draw upon the regulatory texts of technological standards to investigate the infringement of essential patents. In this case, they have the advantage of having access to texts written in a very precise manner. In addition, the financial stakes involved in infringement are a determining factor in the carrier’s choice of action. “Technology from our patent portfolio, which represents high market expectations, will be paid particular attention in order to detect potential infringement and request licence fees”, says Sandrine Millet. Orange often joins forces with other telecommunications players to assert its rights with respect to infringement cases. “This is the case, for example, with the HEVC standard”, she says. “We have teamed up with other HEVC patent holders to assert our rights and share licensing negotiations for this technology with terminal manufacturers.”
An infringement case is therefore prepared based on the financial valuation of a technology. The selection of technologies to license is made in close collaboration with Orange’s licensing department.

Often more linguistic than technical
Building an infringement case involves several steps, during which a patent lawyer works closely with an expert in the relevant technical field. They study the texts drafted at the time the patent is filed and, in particular, they study what is known as the claim or legal scope, which describes the characteristics of the invention in a few lines. “It’s a text that can range from four lines to a whole page, depending on the type of invention, where every word is carefully chosen”, emphasises Sandrine Millet. The choice of words is important because the document will then be translated into different languages and then potentially subject to subsequent interpretation. “Sometimes discussions are more about linguistics than technical or legal matters”, she says.
The lack of an agreement between the infringing party and the inventor can end up before the court.
Trade secret: better than a patent?
There is another option: when a technological invention is extremely complex, requiring a lot of know-how, it is sometimes better to keep it a secret. “This is another form of protection that allows us to protect our innovations”, Sandrine Millet points out. Since there is no publication involved, this option makes sense, particularly when the act of the invention being put into effect by a third party is difficult to detect. A trade secret avoids publication all together and thus avoids infringement as well, even though it would be difficult to identify the infringing parties. This option is therefore very valuable.

Currently, the international trade of counterfeit and pirated products is having a detrimental effect on virtually all markets. Counterfeiting and infringement is second largest source of criminal income in the world (2016). It results in a significant loss of revenue for companies.

Keyword :

, ,