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[2]: Apples and oranges
by oskeladden on Mon 22nd Oct 2012 20:01 UTC in reply to "RE: Apples and oranges"
oskeladden
Member since:
2009-08-05

You are missing the point of Groklaw's complaint. It's all about the amount of $$$ to be paid for said patents. While FRAND definitely defines that no one can be excluded from being granted a license, it does not define the price that should be paid.


Of course FRAND affects the price that can be charged. The 'R' in FRAND stands for 'reasonable', and imposes a binding legal obligation upon to the patent holder to only charge a reasonable royalty. Or, to put it negatively, it precludes the patent holder from charging an unreasonable royalty.

Absent such an obligation, a patent holder is free to demand as unreasonable an amount as it likes. This is why Groklaw's point is fundamentally flawed - Motorola voluntarily gave up its freedom to charge anything other than a reasonable price for its standards-essential patents when it agreed to contribute them to the relevant standard. Apple hasn't done that, because the patents in question aren't part of a defined standard. The fact that it (and, I add once more, Microsoft) are demanding unreasonable royalties on their patents is therefore absolutely irrelevant to the question of whether or not they can demand that others not charge them unreasonable royalties.

Reply Parent Score: 3

RE[3]: Apples and oranges
by JAlexoid on Tue 23rd Oct 2012 13:01 in reply to "RE[2]: Apples and oranges"
JAlexoid Member since:
2009-05-19

Reasonable does not mean that the licensee gets to choose the price. Reasonable can be a billion USD and unreasonable can be 10 USD. It's not defined, as their FRAND commitments don't define what is reasonable.(Remember that Apple and Nokia had exactly the same issue)

Reply Parent Score: 2

RE[4]: Apples and oranges
by majipoor on Tue 23rd Oct 2012 13:29 in reply to "RE[3]: Apples and oranges"
majipoor Member since:
2009-01-22

But Non Discriminatory means that the fee should be the same or at least similar for every licensee.

For 3G standard, Qualcomm and Intel have a license with all FRAND patents holders which cover their customers: the license fee is included in the price of the 3G chip.

Problem is that both Motorola and Samsung did explicitely exclude Apple when renewing their licensing contract with Qualcomm and Intel.

Can you explain how this could be non discriminatory?

EDIT: Link

http://www.fosspatents.com/2012/03/samsung-suffers-second-and-even-...

"Furthermore, the court held that Samsung cannot assert 3G/UMTS patents against the iPhone 4S due to patent exhaustion: Apple is licensed by extension since it purchases baseband chips from Qualcomm, and Samsung's attempt to terminate its license agreement with Qualcomm as far as third-party beneficiary Apple is concerned failed because Samsung had make a commitment to ETSI, the standards body in charge of 3G, that it would grant irrevocable licenses to its 3G/UMTS-essential patents.

On those grounds, a French and an Italian court had previously denied Samsung preliminary injunctions against the iPhone 4S."

Edited 2012-10-23 13:34 UTC

Reply Parent Score: 2

RE[4]: Apples and oranges
by oskeladden on Tue 23rd Oct 2012 19:25 in reply to "RE[3]: Apples and oranges"
oskeladden Member since:
2009-08-05

Reasonable does not mean that the licensee gets to choose the price. Reasonable can be a billion USD and unreasonable can be 10 USD. It's not defined, as their FRAND commitments don't define what is reasonable.(Remember that Apple and Nokia had exactly the same issue)

Actually, 'reasonable' is a term with a very clear meaning in law - it's chief significance is that it imposes objective limits on what a licensor can charge (i.e., a licensor cannot charge what he subjectively decides he wants to charge). There's been quite a lot written on how it'd operate to restrict the scope of what a licensor can demand in relation to a patent subject to FRAND licensing requirements. The consensus among lawyers who work in the area is that it'd be much more restrictive than the 'Georgia-Pacific standard', (which is based on 15 factors, and used to assess damages for infringement in non-FRAND cases). This is because reasonableness must be judged in relation to the relative contribution and importance of the patent to the overall standard, not in the abstract, and because of the requirement that the royalty be non-discriminatory.

There isn't any FRAND-specific case law, because never before in the history of standard-setting has any organisation sought to use FRAND patents as a weapon against a competitor. But the legal principles are nevertheless very clear. I can recommend some articles in law journals if you're interested (and have access to a law library).

Reply Parent Score: 2