Guest post by “The European Commission has accused Motorola Mobility of abusing its standard-essential patents against Apple in Germany. The Commission has sent a Statement of Objections to the company over a misuse of its GPRS patents, which has seen Motorola pursue injunctions against Apple products instead of properly licensing the technology.”
Did the commission warn Apple about their patent abuses as well?
Apple is not abusing patents in accordance with the law. Motorola is. The US and the EU have come to the same conclusion.
Its almost depressing to watch your distorted reality come apart at the seams in real time.
How is Motorola trying to protect their patents that APPLE is using without paying for them abuse? so what they are FRAND patents don’t mean apple gets a free pass to use them without paying for them. If apple is not willing to pay what they should be paying Motorola has the right to request a sales ban.
Edited 2013-05-07 22:49 UTC
The issue is that FRAND patents, in order to comply with the FRAND framework have to be Fair and Non-discrimanatory. Apple have to be offered exactly the same sort of deal that anyone else is offered otherwise it’s discriminatory. When a company offers a patent as a FRAND patent it is making a deal, the deal is it guarantees that nobody will be discriminated against and thus everyone feels safe about adopting the technology covered in the patent and making it standard.
I may be wrong, but the impression I’ve been given is that Apple went ahead and used the FRAND patents, without an agreement, and had been using them for quite some time.
As far as I can tell FRAND does not mean “Any one can take and uses these patents without any form of formal agreement”.
It appears that this is what apple did, they did not sign an agreement, they did not licence them, they certainly did not pay Motorola any of the due fee’s.
Once they were caught with their hand in the cookie jar, they appear to have responded like a petulant child stating, well you have to give them to us any way, ner ner ner.
I really struggle to see how that is considered appropriate.
Motorola are now looking for punitive damages, I have no issues with that.
Bingo.
This is what pro-patent people – who almost always are pro-Microsoft and Pro-Apple people, funny enough – forget. Apple/Microsoft stole (their words, not mine) Motorola’s technology without permission, without an agreement, without paying for them, earned boatloads of money with them – and are continuing to do so.
It’s actually much worse than infringing on crappy, insipid and evil software patents, since Apple and Microsoft were fully aware of these FRAND patents (they are part of the standard after all), but yet still went full steam ahead, infringing them without paying for them.
If you were to adhere to Microsoft/Apple’s world view, Apple and Microsoft would be huge criminals.
Apple is asking for the court to negotiate a FRAND rate, given that Motorola’s rates are unreasonable. They’ve shown in the past the desire to extract huge royalties for their SEPs.
Motorola claimed that Microsoft’s offer still made them an unwilling licensee, despite it being 10x higher than the MPEG-LA rate. So I’d do a lot less listening to Motorola’s saber rattling in court and a lot more observing of the actual facts at hand.
Apple has stated that it is willing to accept a court determined rate. Motorola has gone ahead and attempted to enforce an injunction anyway. That is what got them in hot water.
You’re STILL skipping over the part where Apple/Microsoft willingly stole Motorola’s technology without a license. Just because the licensing talks aren’t concluded yet doesn’t mean you can just steal the technology!
OK – so the situation is this: Motorola voluntarily offers up some key patents to be licensed in a FRAND framework. This means that the patents become accepted as industry standards and thus become fundamental and essential for the operation of all modern mobile phones. Being part of a FRAND framework means that Motorola has formally committed to always offering licenses, for those patents to anybody who wants them and who is willing to pay, in a fair and non-discriminatory fashion, i.e it will not withhold a license if one is requested and it will not charge a particular licensee more than anybody else is paying just to gain competitive advantage.
Those FRAND commitments (to be fair and non-discriminatory) are precisely what allows any technology owned by one company to become accepted as an industry standard, it is the very basis of the way standards are set, because it insures that once established as a standard the owners of the patents will not abuse their position to seek competitive advantage.
Along comes Apple and it starts making phones that kick Motorola’s ass in the market place and it says can we please have a fair and non-discimnatory license so we can pay you a fair and non-discimnatory license fee for using your standard essential patents without which our phones will not work. And Motorola says to Apple ‘f–k off, you can’t have a license and you must stop using our patented technologies, without which you cannot make a working phone’.
Apple then has a choice. It can stop making phones and call it’s lawyers or it could decide to continue to make phones and call it’s lawyers. The first option allows the blatant abuse of FRAND by motorola to succeed and option two does not.
And you think Apple is the villain for taking the second option?
Jeez Thome what happened to you, how did your ethical perspective become so warped? Does dislike of Apple trump all other ethical considerations? How can anyone remotely defend what Motorola did?
How can you one day write about the evils of IP and patent law and the wonders of openness and then the next day use weasel words about the evils of technology being stolen to defend an utter abuse of a FRAND standard just because the victim of the abuse is Apple?
Edited 2013-05-08 10:44 UTC
Or, and this is more likely considering how this industry works, Motorola asked for cross-licensing patents with Apple, and Apple refused. Cross-licensing is normal in this industry, and since Apple refused, prices went up. The same happened with Apple/Nokia, which later got settled under pressure from Microsoft.
Apple didn’t want to cross-license its patents, and as such, Motorola initiated a price hike. Seems very reasonable to me.
Maybe they thought different.
Apple or any other company isn’t under any obligation enter a cross patent deal nor is Motorola or any other company then allowed to ask unreasonable prices for SEPs.
Motorola broke the law and got a warning from the EU. The rest is irrelevant.
FRAND means FRAND. Not FRAND if you offer me a patent in exchange.
Any way you slice it, a large amount of Motorola’s patent portfolio is effectively worthless from an injunction seeking POV. The only thing they’ll really do if they keep dicking around is get Google into even more regulatory trouble.
Motorola should, and probably will end up taking a license from Microsoft. There’s just no other recourse. They are not an effective defensive play, they certainly have no offensive patents, and are really the last major OEM hold out left.
It appears that your dislike of Apple has completely corroded your moral, ethical and intellectual integrity.
No company is under any moral, ethical or legal compulsion or requirement to license it’s intellectual property.
Motorola voluntarily offered it’s IP to be the basis of an industry telecoms standard through a FRAND commitment and as a result it’s IP was adopted across the industry via FRAND licenses.
When Motorola, now a division of Google, decided to refuse Apple a FRAND based license it was in breach of it’s moral, ethical or legal commitments. If Motorola/Google did indeed demand a cross license to Apple’s IP as the cost of issuing a license to FRAND encumbered IP then that was clearly and completely morally, ethically or legally wrong because it was seeking to use a FRAND patent as a lever in order to gain competitive advantage.
Apple are clearly and completely morally, ethically or legally in the right to request a standard FRAND license and refuse any demanded higher than usual payments or cross licensing.
The bankruptcy of your position on all this and it’s staggering hypocrisy can be clearly illustrated by a simple thought experiment in which the roles are reversed. Imagine an alternative world in which Apple owned patents which it had offered for many years via a FRAND commitment and which as a result had become widely adopted and essential for the basic functioning of any modern handset. Then Google launches a new handset the sales of which take off like a rocket and Google asks Apple for a standard FRAND patent, but Apple refuses and demands that Google to give it a license to Google’s core search and Adsense patents, presumably so that Apple could build a competing search engine. I find it hard to believe that you would come out in support of Apple in those circumstances.
Thom – principles are all well and good but if you rigorously profess them, particularly in public, you really have to stick to them.
This case could not be more morally, ethically or legally clear cut.
You really have no clue how this works. There is no such thing as a “FRAND-based license”. Each and everyone of those licenses between these companies is individually agreed upon after hard negotiations, in which cross-licensing usually plays a huge role. The more you have to offer up for cross-license, the less you have to pay in cold hard cash.
You’ll note that this system worked just fine… Until Apple decided it didn’t want to cross-license. Motorola is under NO obligation WHATSOEVER to fulfil Apple’s every demand. If Apple doesn’t want to cross-license, than it has to pay more than other companies that do want to cross-license. How is this so hard to understand? Note that the courts did NOT condemn Motorola’s demands… They condemned Motorola’s subsequent suing over these patents.
Despite Apple not having been able to negotiate a license, it then proceeded to willingly infringe these known patents by stealing Motorola’s technology and implementing it anyway. When Samsung steps on some crazy ridiculous super-obvious software patent, you call them criminals. When Apple willingly infringes cold and hard hardware patents without paying or having a license, Motorola is the criminal?
You, sir, seem to have lost all touch with reality.
Edited 2013-05-08 13:59 UTC
Motorola did explicitly modify their contract with Qualcomm to exclude Apple from the usual license fee which is usually included in the 3G chip price.
Motorola ask 2.5% royalties: in the H.264 trial vs Microsoft they ask the same amount arguing that it is a fair amount: a US judge has recently ruled that according to license deal with other OEM, a fair amount would be 1/2000 of what Motorola ask.
In a very similar case, Samsung was denied any royalty for their FRAND patent in France and Italy due to patent exhaustion: the fee is already part of the 3G chip price.
Thom, you are shameful: what Motorola did is the worst of patent abuse which you fight day after day here, with one exception: when Apple is the victim. Worse: instead of simply not commenting these cases, you take the exact opposite point of view.
Edited 2013-05-08 14:24 UTC
Your ethical and intellectual collapse is complete. You actually have convinced yourself that Motorola’s actions are OK and that Apple are the bad boy (again). The champion of openness celebrates the bonfire of the standards just to poke Apple in the eye. Astonishing.
Wikipedia – entry for FRAND
Definitions
Fair relates mainly to the underlying licensing terms. Drawing from anti-trust/competition law; fair terms means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market. Examples of terms that would breach this commitment are; requiring licensees to buy licenses for products that they do not want in order to get a license for the products they do want (bundling), requiring licensees to license their own IP to the licensor for free (free grant backs) and including restrictive conditions on licensees’ dealings with competitors (mandatory exclusivity).
Non-discriminatory relates to both the terms and the rates included in licensing agreements. As the name suggests this commitment requires that licensors treat each individual licensee in a similar manner.This does not mean that the rates and payment terms can’t change dependent on the volume and creditworthiness of the licensee. However it does mean that the underlying licensing condition included in a licensing agreement must be the same regardless of the licensee. This obligation is included in order to maintain a level playing field with respect to existing competitors and to ensure that potential new entrants are free to enter the market on the same basis.
I have to conclude that you cannot read, because what you just quoted – included what you highlighted – actually fully underlines my point.
Motorola does not get to charge something like 2000x the MPEG-LA because they won’t get a cross license from Microsoft in that case (for example)
That is obviously outside the spirit of the law, and the DoJ/EC seems to agree. That is taking your weird interpretation of FRAND at face value, which I share skepticism over with Tony Swash.
With that said, I don’t know if what your saying is relevant beyond for arguments sake. It is obvious that courts and Governmental entities are disagreeing with your particular take on SEPs.
If they acted in bad faith and unreasonably in the Microsoft case, who’s to say they’re giving Apple a fair offer?
Ad-hominem attack much?
I don’t think it’s your “opponent” that has lost all touch with reality. If your don’t even understand the concept of self assumed frand patents, there’s not much to discuss here.
Seriously Thom, take a vacation somewhere, this “place” is clearly affecting your judgment and you’re affecting its reputation.
Except you have your facts wrong. As we have seen in previous Apple IP lawsuits, like Nokia, Apple didn’t come to Motorola and ask to negotiate the rates. They just started using the patents. Motorola had to approach them. And Motorola offered the same rate to start with that they offer everyone, 2.5%.
Now, no one ever ends up paying that amount, its just a starting point. And no one else in the phone industry has had any problems getting a license. Now, Apple and Microsoft enter the scene and all of a sudden there are problems.
Motorola only sues Microsoft after Microsoft sues Motorola over Android. Microsoft has been using the technology for years. That doesn’t make Motorola look very aggressive. Motorola sues Apple to get its license fees, which Apple refuses to negotiate on. Even when Apple has clear chances for neutral remediation in IP lawsuits, they chose not to pay up. Yeah, why would Motorola ever have to sue?
Both Apple and Microsoft have agreed to take a license at reasonable court determined rates, why is this not good enough for Motorola?
Likewise, it can be said that Apple’s had no problem paying for SEP patents from anyone but Motorola and Samsung. (The minor dispute with Nokia was settled.)
Anyone arguing for negotiation based on cross-licensing is missing the forest for the trees. Implicit in such an argument is that the 2.25% rate is fair. That is, any reductions in that rate are conditioned on other covenants of similar value.
Also, people keep claiming that Motorola always offers this rate and it always ends in a successful negotiation. There is zero evidence of this. Motorola’s own testimony as to other parties who are paying a 2.25% rate (Motorola doesn’t argue that this is an unfair but only opening negotiation’s tactic, they still, to this day, claim it is a fair rate) could only show 4 instances all were fundamentally flawed in that they did in fact bundle in other deals which would inherently value these particular patents at a lesser but unknown rate and/or were only agreed upon in order to end litigation. There is no evidence of Motorola actually agreeing to license these patents at these rates to anyone, before or after negotiation, without factors that cannot weigh on a FRAND negotiation interfering.
Edited 2013-05-08 19:10 UTC
And Motorola would be within their rights to want compensation for that period of time, at a FRAND rate determined by the court.
This is common practice, in fact, Apple is due to get some additional money from Samsung for the damages acrued during the time elapsed since the court ruling.
I don’t understand how you make the leap from that, to attempt to rationalize what Motorola is doing. Motorola is not at all justified under any interpretation of the law for what they’re doing. It is in fact extremely dangerous and the EXACT kind of IP abuse you should REALLY be writing about.
Motorola is NOT a good faith negotiator. Apple and Microsoft both agreed to legally binding resolutions to the patent licensing dispute at whatever rate the court determined, and Motorola STILL sought an injunction.
That shows that it isn’t about compensation for IP, it’s about getting an injunction. Which would be fine had they not pledged the patents to be offered on FRAND rates.
Anyway, I feel like everyone in this thread is talking past each other. To you, Motorola is some how always going to be justified because you have this elementary eye-for-an-eye moral compass guiding you.
So patents should be respected when it is against companies you don’t like, but it is okay to say fuck patents when you happen to think it is bullshit.
Frand or not … this is a double standard.
http://www.engadget.com/2013/05/06/european-commission-motorola-pre…
Sorry Thom you are talking bullshit.
That’s because it’s not stealing. And Apple and Microsoft have both agreed to pay a fair rate, once determined.
Funny how all of a sudden (I mean when it’s Apple or Microsoft) use of intellectual property (which shouldn’t be property) is STEALING (even though neither has denied Motorola access to or use of the “property.”) Etc…
So Apple’s patent racket is OK, and Google’s defense against Apple is not? There is obviously something wrong with your laws.
No. They’re not my laws, or your laws. They’re the law. Your personal opinion on the subject matter is irrelevant — Apple was not found by the court to be abusing their patents.
And it is absolutely consistent to criticize Motorola and not criticize Apple in this case.
Apple isn’t reneging on a promise they made to the standards setting organizations. Motorola is. Motorola baited people into implementing a standard by making a FRAND commitment. What the EU is saying is that they can’t do this, then turn around and not license their patents at reasonable terms.
I really don’t understand why you need to be walked through this every single thread.
That’s an easy one: because this poster will not, or perhaps cannot, see beyond their own opinions and because you are willing to indulge them by feeding them more fuel for their misdirected fire. If they don’t get it yet, they never will and you should save your energy for something else other than rehashing what intelligent people should already understand: personal opinions should not be relevant in legal cases. If you are not a party involved in such cases you have no power to affect it and, given what I’ve seen of some of the zealots around here, that’s all for the best.
… but enough projecting about yourself.
Too bad so many commenters are clueless and don’t even understand what FRAND patents are all about and why abusing them is far worse for the consumer than anything Apple did with their (non-FRAND) patents.
Edited 2013-05-07 22:23 UTC
Agreed. People let their Microsoft/Apple hate crowd out their common sense some times.
The abuse of FRAND patents is the single most destructive thing that could happen to software. It will blow the entire thing up. You’d make every standard which falls under a FRAND promise unsafe if Motorola were allowed to set precedent and seek injunctions over FRAND patents.
I don’t think you want Motorola, or Samsung, or anyone else for that matter being able to sue anyone into oblivion over a WiFi, or an LTE patent or something.
You got it wrong. The abuse of patents is the most destructive thing that could happen to software. Whether they are FRAND or not doesn’t really matter for those against whom these patents are abused.
No. I just stated why there is a difference. Re-read my comment.
Reread mine as well. The thing is already blown up – tons of junk patents and costly defense against patent trolling. FRAND just adds more to the existing mess.
I don’t really think the system has gone haywire yet, historically, these periods of intense litigation have existed in sectors of rapid innovation. That’s completely aside from the issue of destroying the very concept of IPR declarations and contributions to SSOs.
If you give a damn about this patent mess at all, you’d be screaming at the top of your lungs for Motorola to quit doing what they’re doing.
Instead what you do is draw a false equivalency between Apple’s and Motorola’s actions.
..And err patent for ‘regtangle’ too. What kind of patent we call that one? :p
It is not a patent per se, it is a design patent or a trade dress which is a completely different matter.
And for your information and assuming that you care about the truth, Apple did not protect the rounded rectangle shape: the design is a lot more detailed and protect the overall look of a product.
You also have to understand something: all patents or design patents Apple use to sue competitors are easily avoidable: it is easy to build a smartphone or a tablet which does not violate those patents and it would not even imply that the product is not as good as any Apple product.
The problem with SEP patents is that it is IMPOSSIBLE to build a smartphone which do not use the patents. It is the reason why SEP require a FRAND license.
But I know that you and Thom don’t care: Apple is evil and whatever the facts, you will always interpret them to fit your agenda.
Edited 2013-05-09 01:55 UTC
Where did Google abuse FRAND patents against anyone besides Apple? I’m not fond of Google retaining Motorola patent litigation, but I’m OK with Google doing it against Apple who is the notorious aggressor. If there is some case when Google pushes these patents on others (not in defense against aggression), then I’d agree that it is much worse.
Edited 2013-05-08 03:24 UTC
Uh, Google tried to extract unbelievable amounts of money from Microsoft in Germany and in the USA using FRAND patents which landed them in hot water in the US.
Its not specifically about Google or Apple or Microsoft, its about the precedent it’d set for all holders of FRAND patents. It’d make their commitments worthless and open the door to increased litigation around vital standards.
You’d be giving the likes of the MPEG-LA unbelievable power at the expense of spiting Apple. You’ve gone off the deep end.
Bad example, this can be considered a defense against Microsoft constant racket of Android vendors. Any other examples which actually can picture Google as aggressor?
Precedent concerns I can understand, but I doubt patent racketeers wait for any encouragement from Google to do their trolling.
Edited 2013-05-08 04:58 UTC
Microsoft facilitates the licensing of intellectual property not offered on FRAND terms, Motorola actively seeks injunctive relief over standard essential patents.
Often the terms that Microsoft licenses its IP on are very amicable, especially if you have existing business with Microsoft.
This is the equivalent of killing a person’s whole family because someone punched you in the face. The reaction is so disproportionate and dangerous that it should give you pause, way more than just a passing concern for precedent.
Let’s translate that to normal human terms: Microsoft comes up with non FRAND patents to extort money from Android vendors using protection racket approach (i.e. like B&N described, if they refute one set of patents, MS will present another, since their point is not to protect their “innovations”, but to extort money). Google naturally seeing this as an aggression, fights back with FRAND patents (which I agree aren’t suitable for that really). All Google can be accused for is using the wrong tool to fight the aggressor. But not for the fact of fighting back.
Inappropriate comparison. This is more like threatening the racketeer and parasite which blissfully sucks money from others after finding a hole in the law which turns blind eye on such racket. I.e. Google has full moral right to fight back. But I can agree that FRAND by definition denotes a “demilitarized” patent, and this looks weird.
Edited 2013-05-08 05:58 UTC
And that’s exactly what the EU is saying. Trying to use FRAND patents for this is abusing the whole purpose of FRAND and undermining a key support for healthy competition.
In other words, EXACTLY what the EU is telling them.
You seem to be trying to apply some sort of morality to the actions of these companies. This is just business between mega-corps. The idea that it matters whether something is fair is pretty naive. I always think it’s funny that people actually fall for Google’s marketing message that they’re somehow different and more ethical than any other publicly traded company.
Edited 2013-05-08 06:09 UTC
How really ethical they are is hard to say, but we can evaluate their actions. MS pride themselves as an experienced racketeer. They announce each new patent extortion success with fanfare. Google is not known for using patent aggression. I’d say that Motorola case only makes their reputation worse (though it is still a defense).
Google pulling EAS Calendar Sync, telling Microsoft to use CalDAV, then pulling CalDAV support in favor of their own proprietary API.
Ethical? Moral?
Google pulling EAS push e-mail, telling people to use IMAP (which has no push e-mail alternative) while they themselves use a proprietary API on Android and iOS.
Ethical? Moral?
I didn’t say that Google is ideal. I said they don’t engage in patent aggression. You are yet to bring any counter example to that.
Because I don’t buy into the notion that enforcement of IP is unethical or immoral.
Google’s aggression is their own prerogative, if they are passive then that is something they themselves have determined to be the right move.
However, the point was that all businesses are immoral and unethical to an extent — its business.
It is a counter point to yours because I fundamentally disagree with the premise on which its based. So telling me that Microsoft is especially unethical or immoral because they enforce their IP is pointless.
What is fact, and which you agree with, is that Google is immoral because of their actions on proprietary APIs, and that Microsoft has been unethical in the past. This is a conclusion not at odds with my position, and its likely all the common ground that is to be found here.
That’s your problem, not mine. I consider patent protection racket to be immoral and unethical. The fact that companies like MS and the like use the dysfunctional legal system to engage in such racket without legal repercussions doesn’t make it any more moral. Business is not supposed to be immoral – if you think otherwise you have a serious problem.
It is not pointless to bring attention to specifically immoral behavior of some companies. In this case MS. In other case it can be Google and bringing attention to that would be not pointless as well. I’m not singling MS out in this. For example in a recent develpment, Google participated in pushing DRM into HTML. Alongside Microsoft. This is unethical, and Google is wrong here.
Edited 2013-05-08 18:29 UTC
No, its a shared problem because it impedes a discussion on this subject. We have an impasse.
To me, the theft of intellectual property is immoral and even worse is the refusal by Motorola to enter into negotiations to resolve the IP uncertainty around Android.
If you find one mega corporation extracting money from another mega corporation to be immoral, you have an odd sense of perspective.
Businesses, especially publicly traded ones have legal obligations to shareholders which trump morality. Google has a faux moral fiber when it lines up with their business model, but as the CalDAV thing showed everyone, they can very easily change their minds.
Right, but it is to this conversation, because I disagree with the entire premise of your argument.
I don’t think that’s unethical, you have a very strange definition of the term. Maybe you disagree with it, because you’re a pretty principled person, but morality is a bit of a stretch here.
Its becoming more and more obvious that Apple and Microsoft scared Google out of $12 billion.
Motorola’s patent arsenal is either widely licensed or FRAND and effectively useless. I wonder who’s head will roll over this disaster of a purchase.
I guess it happens to most companies, Microsoft did almost pay $60 billion for Yahoo.
Bing/Yahoo have a reasonable marketshare now, though. They’re the only alternative to google for people who aren’t chinese. DDG etc. use them as a back-end.
Google purchasing motorola was a disaster, not only because the patents then thought they were buying were rather weak as defensive tool.
http://bgr.com/2013/05/07/apple-samsung-smartphone-profit-q1-2013/
Give that only Samsung is actually pulling a profit from the android-handset business one has to wonder what the future holds..
This pretty much mean that Apple can go to the court and claim that they own rounded corners on smartphones etc. while companies like Motorola, who actully invented and developed the technologies used in smartphones, can’t defend themselves.
Motorola volunteered those patents to be included in the standard under a stipulation they very well understood at the time. In exchange for being licensed ubiquitously, they must offer licensing on FRAND rates.
This isn’t hard, or mean, or anything, this is what Motorola themselves consented to during the formation of the relevant standard.
They don’t get to promise to not sue implementors of the standard only to turn around and seek injunctive relief.
Lets get something right: There is NO LAW that dictates FRAND licensing. Its a contract drawn up by the standards body and agreed to by the members. No where in the agreement does it say that members can not file for injunctive relief. No where in the contract does it dictate what a reasonable rate is. It is left open ended because you are suppose to have to negotiate. There has been way too little of that on Apple’s side and way too much bemoaning the big bad hardware company to the courts.
One thing missing from this article is that when Motorola and Apple were before a Wisconsin court, Apple refused court remediation. What also came to light in that case is that Apple was not yet entitled to FRAND license terms because the contract with the standards body dictates that Apple has to offer to license their patents to Motorola. As Apple hadn’t, Motorola was completely in the clear.
It doesn’t really matter how you feel about these companies. This is an orchestrated attack by two companies with mostly software patents in an area of technology trying to gain leverage on companies with hardware patents that typically fall into FRAND pools.
And when neither party can agree on whether or not a rate is actually fair, because the Standards bodies left it open-ended, that leaves one body capable of determining what is or is not FRAND — the Courts.
There is no requirement that Apple licenses its patents to Motorola — you just made this up.
What makes Moto’s 3G patents more hardware related than Apple’s or Microsoft’s? What makes Moto’s h.264 patents more hardware related than Apple’s or Microsoft’s? It must take a lot of effort to be this self-delusional.
Edited 2013-05-08 19:48 UTC
You need to learn how to read! For instance, on page 22 of the October 29 order from Apple v Motorola in Wisconsin:
“All that being said, Motorola raises an issue in its response to Apple’s motion in limine to which neither party has given much attention in this case. Motorola points out that under ETSI’s Intellectual Property Rights policies, it was entitled to condition its license offer to Apple on receiving a reciprocal license for Apple’s standards-essential patents. The provision at issue states that members’ commitments to license standards-essential patents on fair, reasonable and nondiscriminatory terms “may be made subject to the condition that those who seek licenses agree to reciprocate.†Dkt. #288-3, Annex 6: ETSI Intellectual Property Rights Policy § 6.1.”
You need the reading comprehension classes:
“for Apple’s STANDARD-ESSENTIAL PATENTS…” The patents Motorola is seeking licenses to are not Standard-Essential patents.
No, but Apple still has to offer the license, which they didn’t do. It doesn’t say that Motorola has to license them, or even want them. It just says that Apple has to make the offer to Motorola. Only Motorola would know if they are using any of Apple’s SEPs in any of their products.
There is absolutely zero evidence and Motorola has never even attempted to argue that Apple is denying Motorola the opportunity to license SEPs held by Apple.
Are you just not paying attention or what? The patents Motorola are asserting are cell phone patents. The patents Apple used against Motorola consisted of design (rounded corners) and software interface patents. Its literally hardware patents vs software patents. The relevance is that hardware patents are more likely to be SEP than a software patent.
You didn’t read… yet again. I didn’t say the patents Apple and Microsoft are using in x, y, or z particular litigation. I said their SEPs. They do in fact have those too, and they aren’t creating any problems by demanding absurd rates or injunctions.
Additionally, I don’t see anything that’s anymore hardware-related about Moto’s patents than 99% of software patents. We are talking about frequency modulation and block processing of interlaced video.
Additionally, Apple didn’t refuse to mediate. They met several times. Apple not agreeing to Motorola’s rate during those mediation sessions doesn’t amount to Apple refusing to mediate anymore than it amounts to Motorola refusing to mediate.
Apple did refuse court mediation, that was the reason the Wisconsin court dismissed the case “with prejudice”. They refused to be bound by the court’s decision if they didn’t like the outcome.
Did they refuse to abide by the outcome or to mediate? Which is it? Citation needed.
Apple refused to be bound by the outcome of the courts decision. Here is the text from their response to the court:
” When the Court asked Apple on late Tuesday afternoon, October 30, to commit by noon the next day as to whether it would be bound by whatever FRAND finding the Court made, Apple agreed but with caveats as to the amount and scope. The Court’s order dated November 2 states that, because Apple would not make an unconditional commitment to be bound, the Court would reverse its prior decisions regarding the availability of specific performance and
declaratory relief should Apple prove that Motorola breached its FRAND commitments, and questioned whether the trial should proceed at all.” This information is available on groklaw here:
http://www.groklaw.net/article.php?story=2012110322254380&query=mot…
This is not a refusal to mediate. This is Apple’s refusal to accept a binding decision by the Court to set a royalty rate that would potentially affect Apple in a unilateral manner and at a rate higher than Apple felt should be the ceiling for such royalties.
Edited 2013-05-10 14:41 UTC
Of course it is a refusal to mediate.
If Motorola and Apple could not reach a decision on their own, then the Courts become the mediators. But at that level then, naturally, the court will give them a binding contract. Apple didn’t like the odds and wouldn’t commit. Therefore the court dismissed the case because it couldn’t do what it was intended to do – settle a dispute with a binding contract ruling.
Keep your stories straight Jared. You can’t be for a system of patent litigation where the Courts are the ones that decide the law when a dispute arises. And then turn around and say that Apple should not follow the Courts ruling or even agree to participate because it might not be in their best self-interest. In other words, you are only for patent litigation when Apple comes out on top.
When a company is approached by a standards committee to to see if their patent can be used in a standard the company has two options. 1- Put the patent in the standard and understand that they have to follow the FRAND rules, they get a license fee either directly or indirectly from each company that uses the patent, either way they cannot dictate who can or dictate different amounts from every company. or 2 – Don’t do it and try to license it yourself, you can license it how you see fit.
Motorola with the patent in question decided to go the FRAND route, figuring that a little from everyone is better from maybe a lot from a little or possibly none, (i.e. the standard would have moved on to some other way of what the patent did, and Motorola would have to try to “sell” their technology on their own.)
Apple, either was never contacted by a standard body and ask for FRAND licensing or told them they are doing 2. So they are under no-nada reason to even let anyone use their patents.
Now, Apple/Microsoft/Samsung….. are asserting their patents against each other, and as in some way against Google. Now, google not having enough patents to fight back, thinks it a good deal to purchase Motorola, (Who have been in so many standards that more than likely don’t have anything that is not FRAND). Some person most likely at Motorola looking to sell off the unit, gives Google a bill of goods on the patents. (Just like you could say Sun did to Oracle.) Google thinks its a good deal, and buys Motorola. Now Google/Motorola want to fight back, Problem most of their patents are FRAND. They start trying to get things blocked on import for their patents. Apple/Microsoft/… calls Googles bluff, and off to court they go. The judge looks at google and says as long as the companies are willing to license under FRAND rules, they are out of luck on any kind of injunction.
Now, Apple with it’s patents not in a situation they are part of FRAND, can sue anyone up and down the court.
Think about the reason for FRAND licenses, it stops someone from putting something into a standard, then using their patent in that standard from stopping others from using it. (Exactly what the court told Google they are doing.)
Lets say a standard comes out that does not follow FRAND model.
Company “A” puts a patent into the standard, produces a product “APrime”. Along comes company “B” and produces a product “BDelta”, it is a hit. A’s product APrime, sales goes to zero. “A” then goes well lets change the license for “B” to 1000X we normally license the patent for, or asking for an injection. Now, all “B” did was use a standard, they more than likely either joined the standard body, or used standard off the shelf chips. And I will tell you standard bodies charge a lot of money every year to get access to the standards, and most of the time this covers the royalties for using the standard, usually based on the number of products or size of the company.
Just think about how many standards there are out there, USB/PCI/HDMI/DVI/WIFI/FIREWIRE/Thunderbolt… Each one of these have patents against them, if they were not released under some kind of FRAND from their respected standard bodies. Then anyone that hold a patent could stop any other company from using the standard.
Apple patents that they are asserting are not part of any standard and don’t fall under FRAND. And they are allowed by LAW to stop others from using them.
Don’t get me wrong, I think all patents should be abolished. I think anyone who has their name on a patent should be put in jail for as long as the patent is in effect. I think all the companies in this are DILL-HOLES. It just Google/Motorola got caught trying to do something that is wrong no matter how they try to shape it.
Motorola would not have filed suit at all if Apple hadn’t sued based on the shape of the phone and various icons which are pretty arbitrary.
Why are these legitimate patents, and not also patent abuse? For me, in this context, abuse means to use wrongly. Patenting something as obvious as rounded corners on a phone is absurd.
If Apple actually innovated, maybe this would go over better, but Apple doesn’t even have a phone without the likes of Motorola putting in the RnD to develop the tech. By suing everyone that actually plays a role in the industry, people they depend on, they are simply building a straw house.
Honestly, I feel like these tech companies should rescind FAND offerings and just create Foundations that pool this research, include the players in the industry, then kick out people like Apple that are acting maliciously. There is no risk to all who act in the best interests of the technology because they are members, while people that don’t play nice would be charged huge amounts in patent royalties.
Let them compete on products, not in the court room. It is simply crazy that the courts are actually siding with Apple in this, there is no advancement to technology in general by having rounded corners.
The only message this is really sending out is that you innovate at your own risk, you may not get anything in return for your advancements even if it proves invaluable – standardizing your innovation within the industry can enable all to benefit but you.
To my mind, it is appalling that Motorola and companies like it are losing huge amounts of money despite all they have done for the world – we wouldn’t even have mobile phones without them!
Edited 2013-05-09 16:22 UTC
You said it all right there!
Motorola was innovating mobile technology before the iPhone was a damned twinkle in Job’s eye.
That is because you misunderstand the issues. The thing that makes Motorola’s patents most useful is that they are in the standard. If they weren’t in the standard, they likely wouldn’t be anywhere near as useful. It feels like they have done a lot for the world because the world decided to use their patents (with their permission). If the world had decided to use another method, their patents would likely have been next to useless. There are a lot of technologies that do not make it to the product stage because people didn’t adopt them.