Linked by Thom Holwerda on Mon 26th Sep 2011 08:59 UTC
Legal So, the hearing about the supposed FRAND status of the three 3G patents Samsung is asserting against Apple in The Netherlands is under way. Samsung is currently pleading, and they claim that Apple has wilfully and systematically infringed these patents. They further state that Apple has refused to license the patents since the introduction of the iPhone 3G, even though Samsung offered licenses. As usual, WebWereld's Andreas Udo de Haes is covering the proceeding live on Twitter (in English). Update: Samsung offered two FRAND license options (per-patent and as a package deal). Apple declined. Apple also refused to sign an NDA, delaying negotiations (all according to Samsung, of course). Update II: Apple retort: we only buy chips from Intel, and they have a license. Second, Apple claims Samsung didn't demand a license until 2010. Update III: Massive Apple fail: lawyer reveals the percentage Samsung is demanding for its patents - this is highly confidential information. Update IV: If Apple can convince the judge of this one... Ouch!
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Icky
by Moredhas on Mon 26th Sep 2011 10:30 UTC
Moredhas
Member since:
2008-04-10

I hope Apple get slapped down HARD for this. Software patents are one thing, because they're mathematical processes, but these are hardware patents. Decades flouting patent law, and bludgeoning the competition with it, I hope they're forced to pay a ludicrous amount in restitution. And just to be dicks, I hope Samsung refuse to license the UMTS patents to Samsung for future devices, so they have to release a 2G iPhone 5 (I wonder how Apple would spin THAT as an improvement...)

Reply Score: 6

RE: Icky
by unclefester on Mon 26th Sep 2011 11:09 UTC in reply to "Icky"
unclefester Member since:
2007-01-13

Apple could probably convince many people that Morse Code (renamed as Apple Advanced Digital Technology) was their brilliant new idea.

Reply Score: 7

RE[2]: Icky
by tanishaj on Mon 26th Sep 2011 13:07 UTC in reply to "RE: Icky"
tanishaj Member since:
2010-12-22

Apple could probably convince many people that Morse Code (renamed as Apple Advanced Digital Technology) was their brilliant new idea.


Microsoft or Google might call it Advanced Digital Technology. Apple would call it TapTalk or Marconi.

Reply Score: 4

RE[3]: Icky
by JAlexoid on Mon 26th Sep 2011 14:16 UTC in reply to "RE[2]: Icky"
JAlexoid Member since:
2009-05-19

iMarcon (see what I did there? ;) )

Reply Score: 5

RE[4]: Icky
by foregam on Mon 26th Sep 2011 18:49 UTC in reply to "RE[3]: Icky"
foregam Member since:
2010-11-17

iMarcon (see what I did there? ;) )


iTap sounds better, just listen: iPod... iPad... iTap... Of course, iTap will have multitouch features so you can tap with two fingers. Put that in Android's pipe and smoke it! Besides, messaging is so 90's ;)

Reply Score: 2

How about this scenario?
by shotsman on Mon 26th Sep 2011 11:11 UTC in reply to "Icky"
shotsman Member since:
2005-07-22

As the hearing is still in progress we can only speculate about the outcome.

However, if what Apple is claiming is true then Samsung might be trying to get two dips into the pockets.

1) Apple seems to be saying that it buys chips from Intel.
2) The chips may contain technology that Intel has properly licensed from Samsung.
3) Samsung wants Apple to pay for that technology again. This is asuming that the license cost to Intel is included in the price they charge Apple.

So, taking the Intel, Samsung & Apple names out of the equation, it looks like this

Company 1 has some tech.
Company 2 licensed it from Company 1 and used it in some product.
Company 3 buys that product from Company 2.
Company 1 wants company 3 to pay.

I don't think this double dipping is right. If company 2 has sold the product to Company 3 without the license then Company 1 should be going after company 2 not 3. They are the innocent party here.

As I said, we should wait for the verdict before jumping to conclusions.

Also, if Samsung didn't ask apple to pay up for more than a year after apple started shipping stuff with Samsungs tech in it then the principle of estoppel may well apply as well.
Nothing in this patent and copyright mess is as clear as it may seem to begin withl.

Reply Score: 3

RE: How about this scenario?
by Thom_Holwerda on Mon 26th Sep 2011 11:17 UTC in reply to "How about this scenario?"
Thom_Holwerda Member since:
2005-06-29

Of course, you could also believe Samsung ;) .

Reply Score: 5

RE[2]: How about this scenario?
by shotsman on Mon 26th Sep 2011 12:18 UTC in reply to "RE: How about this scenario?"
shotsman Member since:
2005-07-22

re update III.
If the demands that Samsung made were not FRAND then in an FRAND case that is one of the issues that must come out.
"I asked them for $5 per device"
"No you didn't, this doc says $15 per device"

Sounds a bit like two kids arguing over who's <redacted> is bigger than the others.

Update IV sounds like grounds for estoppel.

Murky, muddy waters these.

Reply Score: 2

RE[2]: How about this scenario?
by Tony Swash on Mon 26th Sep 2011 13:38 UTC in reply to "RE: How about this scenario?"
Tony Swash Member since:
2009-08-22

Of course, you could also believe Samsung ;) .


If one was desperate for them to win because their opponent was Apple rather than based on any particular ethical view of the law or of Samsung's behaviour.

To quote

"Samsung was deliberately misusing both the royalty rate and the responsibility for its payment to try and oppose Apple's lawsuit", according to Webwereld reporter Andreas Udo de Haes. The company didn't ask for payments at all until 2010, and during talks deliberately violated FRAND (fair, reasonable, and non-discriminatory) licensing terms by excluding Apple from a license for the Qualcomm chipsets used in the CDMA iPhone 4 and, presumably future iPhone models.

In Europe, Apple supposedly already pays Samsung its royalty rate through Intel, which bought Infineon and thus the maker of its current GSM iPhones chipset.

Samsung also allegedly deceived the European Telecommunications Standards Institute (ETSI) as it helped develop 3G standards. The Korean firm slipped its patented technology into the standard but only revealed its work five years later, leading to a "patent ambush," Apple said. Legally, Samsung was obligated to reveal its assertions before standards were finalized and might be in trouble, especially as it was already trying to use what was supposed to be an essential patent for an "excessive" amount.

Classy ;)

Reply Score: 2

Thom_Holwerda Member since:
2005-06-29

Funny how you take Apple's words at face value, but dismiss Samsung's account. Then again, you are an Apple fanatic, and none other is to be expeced from you.

For now, both seem like whining children. I stopped updating this item because the proceedings have devolved into a two toddlers crying - Apple's lawyers even admitted they were both acting like children.

Reply Score: 4

an unanswered question
by shotsman on Mon 26th Sep 2011 16:33 UTC in reply to "RE[3]: How about this scenario?"
shotsman Member since:
2005-07-22


Company 1 has some tech.
Company 2 licensed it from Company 1 and used it in some product.
Company 3 buys that product from Company 2.
Company 1 wants company 3 to pay.

I don't think this double dipping is right. If company 2 has sold the product to Company 3 without the license then Company 1 should be going after company 2 not 3. They are the innocent party here.

This is a pretty fundamental question that relates to a number of these patent suits. Not all of them by any means involve Apple suing or being sued by someone.

I've not seen a clear answer to this anywhere.
What is your opinion on this question Thom?
Should companies be allowed to double dip like this?
I'm sure there are people here who would like to know.

Reply Score: 2

RE: an unanswered question
by karunko on Mon 26th Sep 2011 17:33 UTC in reply to "an unanswered question"
karunko Member since:
2008-10-28


What is your opinion on this question Thom?
Should companies be allowed to double dip like this?

I'm not Thom, so excuse me for barging in. As I wrote above, nobody really knows the answer as there's no proof that there's any double dip going on -- short of reading the license agreement between the companies in question.


RT.

Reply Score: 3

RE[2]: an unanswered question
by kristoph on Mon 26th Sep 2011 18:45 UTC in reply to "RE: an unanswered question"
kristoph Member since:
2006-01-01

And actually there is no license agreement to review.

Apple is saying it gets it's chips from Intel and so does not need to pay the license (which Samsung does not dispute).

Samsung is saying Apple gets some other chips that also violate the patent from some other company that does not have license.

Just now it's not clear who is correct.

Reply Score: 3

RE: an unanswered question
by kristoph on Mon 26th Sep 2011 18:50 UTC in reply to "an unanswered question"
kristoph Member since:
2006-01-01

No one is 'double dipping'. You need to read more broadly about this case; not just the tiny snippets Thom is posting.

Samsungs position is that Apple is violating it's patent in chips that Apple sources from another party which does not have a license. Samsung is not saying that Apple should pay for the chips Apple sources from Intel.

Apple claims it has no knowledge of a violation by other chip suppliers until they raised the issue in 2010.

But there is lots of confusion about what the case is about given that Apple bought most of it's chips from Intel until it introduced the Verizon phone which used non-Intel chips.

Edited 2011-09-26 19:04 UTC

Reply Score: 2

RE: an unanswered question
by mksoft on Mon 26th Sep 2011 23:26 UTC in reply to "an unanswered question"
mksoft Member since:
2006-02-25

Not sure if that's the case here.

BTW, isn't this exactly what MPEG-LA are doing - Apple is a licensor and licensee ?

Reply Score: 1

RE[2]: an unanswered question
by umad on Tue 27th Sep 2011 01:22 UTC in reply to "RE: an unanswered question"
umad Member since:
2011-08-18

Not sure if that's the case here.

BTW, isn't this exactly what MPEG-LA are doing - Apple is a licensor and licensee ?


Yes and there's nothing wrong with being a licensor and licensee in Samsung's or Apple's case. Owning FRAND patents simply means you need to offer low reasonable licensing terms. Not paying those doesn't cause ANY increased liability. Rather, it simply requires that you pay and back pay as required.

If you get a license by way of utilizing another's product then you are observed from any payment whatsoever as it was already paid for.

Reply Score: 1

RE[4]: How about this scenario?
by shmerl on Tue 27th Sep 2011 20:52 UTC in reply to "RE[3]: How about this scenario?"
shmerl Member since:
2010-06-08

In order to stop Apple and other patent abusers they need to come to MAD (mutual assured destruction) mechanisms. I.e. in order for Apple to restrain their greed Samsung (or whoever else is racketeered by Apple) needs to threaten to deal a lethal blow to them. Only then things will come to norm.

Reply Score: 2

RE[5]: How about this scenario?
by umad on Tue 27th Sep 2011 23:07 UTC in reply to "RE[4]: How about this scenario?"
umad Member since:
2011-08-18

In order to stop Apple and other patent abusers they need to come to MAD (mutual assured destruction) mechanisms. I.e. in order for Apple to restrain their greed Samsung (or whoever else is racketeered by Apple) needs to threaten to deal a lethal blow to them. Only then things will come to norm.


You assume that they have the legal muscle to pull such a strategy.

Reply Score: 1

RE[3]: How about this scenario?
by JAlexoid on Mon 26th Sep 2011 14:19 UTC in reply to "RE[2]: How about this scenario?"
JAlexoid Member since:
2009-05-19


To quote

"Samsung was deliberately misusing both the royalty rate and the responsibility for its payment to try and oppose Apple's lawsuit", according to Webwereld reporter Andreas Udo de Haes. The company didn't ask for payments at all until 2010, and during talks deliberately violated FRAND (fair, reasonable, and non-discriminatory) licensing terms by excluding Apple from a license for the Qualcomm chipsets used in the CDMA iPhone 4 and, presumably future iPhone models.


When quoting a quote, attribute it to the appropriate party(the lawyers here, and reported by Andreas Udo de Haes).
Since he's reporting what Apple's and Samsung's lawyers said, I don't trust any of their comments. It's all BS to sway the judge...

Reply Score: 5

RE[3]: How about this scenario?
by karunko on Mon 26th Sep 2011 14:55 UTC in reply to "RE[2]: How about this scenario?"
karunko Member since:
2008-10-28

If one was desperate for them to win because their opponent was Apple rather than based on any particular ethical view of the law or of Samsung's behaviour.

You put "ethical" and "Apple" in the same sentence AND cast Samsung as the bad bad guys?!? Well, excuse me while I laugh!

In Europe, Apple supposedly already pays Samsung its royalty rate through Intel, which bought Infineon and thus the maker of its current GSM iPhones chipset.

Emphasis on "supposedly" maybe? And, more to the point: if company A licenses a technology to company B it doesn't necessarily mean that the latter can transfer it to company C. Or?

And, for the record, I'm neither pro or against any company in particular. However, since Apple wanted to play the suing game, I think is about time they get to taste some of their own medicine.


RT.

Reply Score: 5

RE: How about this scenario?
by Moredhas on Mon 26th Sep 2011 21:41 UTC in reply to "How about this scenario?"
Moredhas Member since:
2008-04-10

I bought an nVidia video card, and an Intel CPU. Does this mean I have unfettered license to produce more and sell them, now?

Reply Score: 1

RE: How about this scenario?
by Carewolf on Wed 28th Sep 2011 08:59 UTC in reply to "How about this scenario?"
Carewolf Member since:
2005-09-08

This is the same complaint Apple had against Nokia's patents. Apple ended up surely losing that lawsuit and settled with Nokia.

Reply Score: 2

RE: Icky
by atsureki on Tue 27th Sep 2011 23:30 UTC in reply to "Icky"
atsureki Member since:
2006-03-12

I hope Apple get slapped down HARD for this.


If you had stopped here, you would have at least been honest.

Software patents are one thing, because they're mathematical processes, but these are hardware patents.


Hardware patents for designing arrays of logic gates that manipulate waves to send digital signals.

I dare you to point to anything in the universe and tell me it isn't math.

ALL patents cover "mathematical processes" because they all describe how something works. The only problem I see with software patents is that some of them simply emulate an electrical or mechanical process that already existed, in which case prior art should apply and we're done with it, but again: all technical innovations are math.

Decades flouting patent law, and bludgeoning the competition with it,


Apple's position is that they bought licensed hardware, so the license is paid, and companies like Samsung are attempting to double-dip. They may be flouting Samsung's demands, but that doesn't necessarily mean they've disregarded ethics or the law.

Meanwhile, Apple's designs are proprietary and have not been licensed to anyone. The iPhone is not beating Samsung's products because of patents -- Samsung and Google have obviously ignored Apple's patents, and injunctions have only just begun -- but because more people want an iPhone than a Samsung phone. So I don't see how Apple is "bludgeoning" any competitors with patent law (at least not yet).

I hope they're forced to pay a ludicrous amount in restitution. And just to be dicks, I hope Samsung refuse to license the UMTS patents to Samsung for future devices, so they have to release a 2G iPhone 5 (I wonder how Apple would spin THAT as an improvement...)


You hope that Samsung has the power to deny other companies the ability to produce devices compatible with modern telco standards, and to use that ability to extort from those other companies their profits and design innovations? Crawl back under your bridge.

@Thom: How is revealing the "highly confidential" information on Samsung's price model a "Massive Apple Fail" given that they "refused to sign an NDA" in the first place? Based on your own info, if the information was leaked out of NDA, it was by either Samsung or Intel (to Apple, which was not bound by an NDA).

Also, where is the moral outrage over keeping the pricing model of standards-essential patents "highly confidential"? How is that not horrible patent manipulation and a severe violation of FRAND?

Reply Score: 0

v RE[2]: Icky
by umad on Tue 27th Sep 2011 23:50 UTC in reply to "RE: Icky"
RE[3]: Icky
by Neolander on Wed 28th Sep 2011 05:56 UTC in reply to "RE[2]: Icky"
Neolander Member since:
2010-03-08

Software Patents != Copyright

Software patents target concepts, hardware patents and copyright target implementations.

If the rules of software patents applied to hardware, we would be able to patent "gears" or even "momentum transmission between two cylinders in pivot linkage with a device's carter". On the other hand, hardware patents only allow you to patent a specific gear design, like, say, the double helical one.

Edited 2011-09-28 05:58 UTC

Reply Score: 1

RE[4]: Icky
by umad on Wed 28th Sep 2011 08:25 UTC in reply to "RE[3]: Icky"
umad Member since:
2011-08-18

Software Patents != Copyright


Software patents != mathematical processes [/q]

Reply Score: 0

v Comment by flanque
by flanque on Mon 26th Sep 2011 10:40 UTC
RE: Comment by flanque
by tanishaj on Mon 26th Sep 2011 13:04 UTC in reply to "Comment by flanque"
tanishaj Member since:
2010-12-22

No more articles on this topic. It's boring.


The patent landscape is highly relevant to anybody working in computers today (sadly). Until that fact ceases to be true, please continue to keep us informed.

Reply Score: 8

RE[2]: Comment by flanque
by flanque on Mon 26th Sep 2011 20:19 UTC in reply to "RE: Comment by flanque"
flanque Member since:
2005-12-15

What's left to be informed about? It's like watching a school yard catfight. None of it makes sense, it rarely is different to all the other patent cases and the governing theme is both sides trying to prove they have a bigger kit than the other.

I'm sorry but I don't feel any more informed than I did even a year ago.

Reply Score: 1

RE: Comment by flanque
by Sauron on Mon 26th Sep 2011 13:59 UTC in reply to "Comment by flanque"
Sauron Member since:
2005-08-02

Please stop commenting about this topic, it's boring. ;)

Reply Score: 7

interesting
by TechGeek on Mon 26th Sep 2011 13:39 UTC
TechGeek
Member since:
2006-01-14

I don't know if a year is long enough for the grounds of estoppel. Samsung may say they were doing research on the case for that long. They would have had to wait until the product actually shipped AND conducted an investigation before they could actually sue. Further, estoppel requires Samsung to approve the use of the technology without licensing. I don't see any evidence of them doing that. Estoppel is not the same as not enforcing your rights. I can sit on a patent for years while people use it. I just can't make them think its ok to use it when I plan on suing later. I am pretty sure only trademarks require defending or you lose the mark.

Reply Score: 4

RE: interesting
by unclefester on Tue 27th Sep 2011 08:53 UTC in reply to "interesting"
unclefester Member since:
2007-01-13

Casio sat on their multi-function button patent used in digital watches until it was universally adopted. Then they successfully sued virtually every other digital watch manufacturer.

Edited 2011-09-27 08:54 UTC

Reply Score: 2

Comment by umad
by umad on Mon 26th Sep 2011 17:24 UTC
umad
Member since:
2011-08-18

>"Samsung is currently pleading, and they claim that Apple has wilfully and systematically infringed these patents"

You're right, Apple didn't pay for a license, but Apple is arguing that Samsung never offered them a license... something that is actually required of a company owning a FRAND patent. Worst case scenario for Apple is that they must pay the FRAND patent amount which requires that it be a fair and relatively small but consistent amount for all licensees. Should Apple pay it, it wouldn't be a big deal at all.


>"They further state that Apple has refused to license the patents since the introduction of the iPhone 3G, even though Samsung offered licenses."

Again, Apple is saying that Samsung never offered them a license. Secondly, Apple is NOT required to cross license their own patents as theirs are not of the FRAND variety which would otherwise require it. Though it is common for other companies to cross license their own patents (even those that are not of the FRAND variety) it is only to avoid having to pay any patent amount. Apple isn't required to cross license. It is required to pay the FRAND patent fee though. When Samsung offers them the opportunity, their no reason why they wouldn't.

The worst thing that Samsung can do here is require that Apple pay the small FRAND license fee going forward as well as any back license fees. If it's true that Samsung didn't offer Apple the opportunity to license the FRAND patents as Apple is alleging, it actually threatens to hurt Samsung significantly more that why they might otherwise get from Apple for these patents.

Thom, you're making this out to be a MUCH larger deal than what it is. If anything, its the last ditch effort of Samsung to throw any remaining bit of legal muscle at a company they they know has them by the balls.

Sorry to burst your bubble.

Edited 2011-09-26 17:27 UTC

Reply Score: 2

RE: Comment by umad
by TechGeek on Mon 26th Sep 2011 19:22 UTC in reply to "Comment by umad"
TechGeek Member since:
2006-01-14

We'll all just have to wait and see what happens. Samsung also has the ace up their sleeve of being the best producer of touch screens in the world. It Apple wants the best hardware in their gear, they need Samsung.

Edited 2011-09-26 19:22 UTC

Reply Score: 2

RE[2]: Comment by umad
by kristoph on Mon 26th Sep 2011 19:49 UTC in reply to "RE: Comment by umad"
kristoph Member since:
2006-01-01

It would be amazing if Samsung cut off Apple (or for that matter even pressured them at a contractual level). Apple is such a big customer of theirs that it would make no financial sense and it would alienate other customers.

Apple is working hard with Toshi on moving to their screens though as well as some of their memory so their clearly hedging their bets.

I've also heard rumors from that Apple might actually buy Elpida outright.

Reply Score: 2

RE[3]: Comment by umad
by umad on Mon 26th Sep 2011 21:35 UTC in reply to "RE[2]: Comment by umad"
umad Member since:
2011-08-18

It would be amazing if Samsung cut off Apple (or for that matter even pressured them at a contractual level).


Just as amazing would be if Apple cut off Samsung from their 8 billion is sales to the company (would soon to be 10 billion). Oh wait. Apple just did that.



Apple is such a big customer of theirs that it would make no financial sense and it would alienate other customers.


Too late

Reply Score: 1

RE[4]: Comment by umad
by kristoph on Tue 27th Sep 2011 17:39 UTC in reply to "RE[3]: Comment by umad"
kristoph Member since:
2006-01-01

The patent issues are quite a different thing than Samsung actually refusing to sell, say, NAND chips to Apple.

The former is an irritant, the latter would have a huge financial impact on both companies as well as the worlds semiconductor markets.

But again, I agree that it's a threat to Apple which is why I suspect Apple will either make huge deals with Toshi and Elpida or buy Elpida outright (giving birth to 'Apple Semiconductors').

]{

Reply Score: 2

Ars Technica wrote a great article about this
by umad on Mon 26th Sep 2011 21:41 UTC
umad
Member since:
2011-08-18

Ars wrote a great article that elaborates on all this... they made the same conclusion that I had that Samsung's attempts to collect on the FRAND patents could actually backfire on them.

http://arstechnica.com/apple/news/2011/09/samsung-lawsuits-against-...

Reply Score: 2

organgtool Member since:
2010-02-25

There is something that many people seem to be missing about FRAND patents. While the terms of FRAND are rarely released, it is widely believed that companies that license their patents through FRAND usually require a cross-licensing agreement with the licensee. This makes sense: why should you be forced to allow other companies to license your hard-earned technologies for a relatively low price only to allow those companies to come back and sue the dick off of you? Requiring a cross-license agreement from all licensees sounds extremely Fair, Reasonable, and Non-Discriminatory to me.

However, it is also widely believed that Apple wants to license the FRAND patents WITHOUT allowing other companies to cross-license Apple's patents. This belief was bolstered by the fact that the only term of Apple's settlement agreement with Nokia that was released to the public was the fact that Nokia relented and allowed Apple to license their FRAND patents without a cross-licensing agreement. This made sense in that particular case because most of Apple's patents in the mobile arena are software patents related to elements of iOS. Since Nokia is moving towards WP7 and Microsoft already has a cross-licensing agreement with Apple and indemnifies all hardware manufacturers of WP7, it didn't make sense for Nokia to continue an expensive protracted legal battle with Apple over something that was quickly becoming irrelevant. However, Samsung is in a completely different position from Nokia and they aren't going to give in nearly as easily. Game on!

Reply Score: 4

Funny
by CapEnt on Mon 26th Sep 2011 21:53 UTC
CapEnt
Member since:
2005-12-18

So, every single corporation who are in FRAND simple slipped over this technical loophole, and silent submitted themselves to the almighty Samsung?

Apple legal argument is sloppy at best.

Reply Score: 3

RE: Funny
by umad on Tue 27th Sep 2011 01:19 UTC in reply to "Funny"
umad Member since:
2011-08-18

So, every single corporation who are in FRAND simple slipped over this technical loophole, and silent submitted themselves to the almighty Samsung?

Apple legal argument is sloppy at best.


Which technical loophole are you talking about which deeps Apple;s argument sloppy?

Edited 2011-09-27 01:20 UTC

Reply Score: 1

Re: Update IV
by ddc_ on Tue 27th Sep 2011 14:37 UTC
ddc_
Member since:
2006-12-05

1. Don't think it's a big deal for now. AFAIR, when Oracle vs. Google case started, it appeared that there were more patents on java then anyone outside SUN/Oracle knew. There was a similar story about H.264... Anyway, the real problem is that patents are not automaticly voided when included in standard.

2. Why not just cite the tweeter instead linking to it? It is just a few words long tweet, not a multipage essey!

Reply Score: 1