Linked by Thom Holwerda on Mon 22nd Oct 2012 13:36 UTC
Legal "One of the exhibits Samsung has now made public tells an interesting tale. It's the slide presentation that Apple showed Samsung when it first tried (and failed) to get Samsung to license Apple's patents prior to the start of litigation. While some of the numbers were earlier reported on when the exhibit was used at trial, the slides themselves provide more data - specifically on the difference between what Apple wanted Samsung to pay for Windows phones and for Android phones. The slides punch huge holes in Apple's FRAND arguments. Apple and Microsoft complain to regulators about FRAND rates being excessive and oppressive at approximately $6 per unit, or 2.4%; but the Apple offer was not only at a much higher rate, it targeted Android in a way that seems deliberately designed to destroy its ability to compete in the marketplace." Eagerly awaiting the 45 paragraph comment explaining how this is completely fair and not hypocritical at all. Bonus points if it includes something about Eric Schmidt being on Apple's board, and, double bonus point if it mentions one of the QWERTY Android prototypes. Mega Epic Bonus if it somehow manages to draw a line from Edison, Tesla, to Jobs.
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RE[6]: Apples and oranges
by oskeladden on Wed 24th Oct 2012 08:25 UTC in reply to "RE[5]: Apples and oranges"
oskeladden
Member since:
2009-08-05

I've never read any legal definition of FRAND licensing. If one exists I'd highly appreciate any documentation you can provide/quote to clarify it.

Right! The classic paper - which represents what is clearly now the majority view - is D. Lichtman, 'Understanding the RAND Commitment' 47 Houston Law Review 1023 (2010). It's also on SSRN, in case you're interested and don't have access to Lexis or HeinOnline - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1783406

As you can see, the main point he makes is that a FRAND license is intended to ensure that a company cannot charge a higher royalty than the patent's ex ante value simply because it's become part of a standard, and that FRAND decouples the calculation of damages from the standard test. This is now the generally accepted position.

The main dissenter is Damien Geradin, of Tilburg University, who maintains that - in effect - FRAND commitments impose no real legal commitments. His views became very influential because he advised Qualcomm in their action against Nokia, but lost ground once people who understood contract law a bit better entered the debate. His argument is in effect a patent owner's brief, which is interesting as a matter of competition law and competition economics but has no real basis in Anglo-American contract law - contract interpretation focuses on giving effect to the parties' commercial purpose, and as Douglas Lichtman points out in his piece Geradin's arguments leads to absurd results when seen from this perspective.

The footnotes to Lichtman's paper give you a good review of the literature up to 2010. There've been a few more papers since then, but mostly from an antitrust / competition law perspective.

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