The Mobile World Congress usually represents a forum for all of the major technology companies to display their latest offerings to the world of mobile communications. However, having visited the various stands at this year's congress (Barcelona, March 2015) one is struck that the smart phones produced by each of the manufacturers seem increasingly to be converging into the same design, form factor and features.

The impact of converging technology

Whilst Samsung, LG, Sony and Nokia have in past years dominated the mobile communications market with slightly more divergent offerings, the Chinese manufacturers ZTE , Huawei as well as HTC have rapidly caught up and are offering smart phones which are very similar in appearance, form factor, performance, features and quality to those of the traditional market leaders. Indeed the convergence in the form of the smartphone makes it difficult to distinguish any manufacturer based solely on the technical offering.

That leaves of course price and that is where the newcomers to the market will erode the market share of the traditional incumbents. Arguably the real winners are Google since the majority of the smartphone offerings are using the Android operating system, although of course Apple have retained their position as market leader with the iPhone 6, with its own iOS operating system.

How then are the manufacturers able to differentiate?

One area where companies seek to differentiate their products is in promoting wearable technology accessories, such as the smart watch, or in the provision of more robust devices which may be, for example, waterproof or shockproof. At this year's Mobile World Conference LG launched its stand-alone smart watch which incorporates an LTE wireless access interface and all of the functionality associated with a smart phone albeit with the size and features of a watch. Other manufacturers, including Apple, are showcasing devices which are paired with a user's smart phone.

Innovating to achieve product and brand diversity

In a market crowded with ever converging design and form, wearable technology innovation provides an opportunity for manufacturers to differentiate. Factors of differentiation require protection and clearly therefore necessitate the acquisition of intellectual property rights.

Standards related patents

The communications technology in respect of the wireless access interface and chip sets delivering a communications service to mobile devices will be covered by standards related patents, which still provide a valuable tool for those players who have contributed to developing the 3GPP standards, which could provide a barrier to new entrants. The 3rd Generation Partnership Project (3GPP) unites the seven telecommunications standard development organizations (ARIB, ATIS, CCSA, ETSI, TSDSI, TTA, TTC), known as 'organisational partners' and provides their members with a stable environment to produce the reports and specifications that define 3GPP technologies. Standards related patents are powerful in demonstrating infringement if the device operates in accordance with the standard.

However, the courts in European countries have in recent years begun to restrict the enforcement of standards essential patents, raising the bar for a patent holder to obtain an injunction against an infringer and also requiring that licences be available on Fair Reasonable and Non-Discriminatory (FRAND) terms. As such, an innovation in an item of wearable technology which appeals to the consumer and which is not defined in accordance with a standard, but in accordance with a proprietary interface, operation or design, could represent more valuable intellectual property, protecting a valuable market share.

Furthermore, the design of something which is fundamentally worn on the body will usually be something which would require aesthetic appeal to the end user and therefore could be the subject of a Community registered design. It may well be that through this ancillary differentiation of smart phones, through innovation in wearable technology products, that manufacturers may distinguish their offering and gain a valuable foothold in the market place backed of course by powerful intellectual property rights.