Microsoft joins Apple in pledging support for injunction free, FRAND patent licensing

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  • ericthehalfbeeericthehalfbee Posts: 2,766member
    Now Cisco has joined in and published their standing, which mirrors Apple and MS. I have a feeling far more companies will agree with these proposals than Google/Motorola/Samsung.



    As mentioned on a few sites, should a BMW with a UMTS phone built in be required to pay $1,000 to Motorola? This is what Motorola and Google think.
  • hirohiro Posts: 2,663member
    Quote:
    Originally Posted by Gatorguy View Post


    AFAIK the Qualcomm license issue isn't part of the argument, with the court already agreeing with Apple that the patent claims as they pertain to the Qualcomm chipset have been exhausted. Do you have better info that the Qualcomm claims are still in play? I didn't see that right off and still believe it's a moot point now unless there's still some claim being made.



    Is that why Apple and Qualcomm happily provided Moto with their contract terms in discovery? As per Moto's request? Something Apple and Qualcomm just agreed to do in the Samsung case too?



    Any exhaustion judged would have been based on those contracts in the Moto case, making that entirely relevant.



    Quote:
    Originally Posted by Gatorguy View Post


    IHere's the really confusing part. It seems at least some of the patents that Moto is attempting to license to Apple, if not all of them, aren't technically part of the current standards. Moto claims they're essential and thus can't be avoided. If true than Apple couldn't claim not to use them and would be required to obtain a license. But that's part of Apple's counterclaims. They say they don't use the tech that Moto's patents apply to, basically saying that the Moto patents aren't essential and subject to FRAND.



    Not so confusing if you consider the FRAND and non-FRAND parts separately even though they are filed in one case. Moto is trying to leverage non-standards burdened patents (so not FRAND issues) as essential to Apple's 3G implementation. Which is odd because they aren't part of the standard so how exactly can the be essential to implementing it? That will have to be unraveled by the courts but Muller has stated doubts that they could actually be essential and unable to be worked around since Moto is a signatory to the standard and stated it's essential patents at that time. If they weren't essential then, it is a big task to prove they are essential to that standard now. And/or as you noted Apple can just state they don't use the claimed non-standard IP, which again is a question only the court can answer as that has more to do with language definitions in pre-trial motions than what the patents themselves actually were intended to be patenting when filed.



    The FRAND stuff is also in the case, but can be considered in it's own niche. In the end those claims are probably simpler to work out because a lot of agreement on Apple's use is agreed to up front by Apple when they claim non-FRAND terms were demanded by Moto.



    Quote:

    Now things get weirder. Apple claims that if Moto said the patents were essential then they must license them under FRAND terms in accordance with whatever regulatory or advisory group holds sway in that area, even tho Apple claims not to use them in the first place. On the flip-side Moto says that altho they consider the patents essential, no regulatory body has yet adopted them as part of any industry standard and thus they shouldn't be required to adhere firmly to FRAND terms..



    Exactly. That's just Moto trying to muddy the water. Either the patents are essential and Moto did not claim them as essential when the standard was made, or the patents really are not essential. Most of that gets a lot clearer when the facts come out on specific dates and if Moto is a signatory to the standard. If Moto is part of the standard pool, their case takes a major hit because patents devised post standard are by definition either non-esential to the earlier patent or invalidated by prior art in the standard. If Moto is not a signatory in that standards portfolio than they can claim anything they want. What do you think the probability is that Moto is not a signatory in ALL the 3G wireless standards?







    Quote:

    In the end the court seems to be saying that if Apple wants to argue that Moto isn't negotiating in good faith under FRAND terms then they have to take a license to the patents first, something Apple is trying hard to avoid. Perhaps that's tied to Apple's hopes that they can have at least some of the patents declared invalid, something they can't do if they acknowledge the patents under Moto's terms.



    That is the legal position of a single judge in Germany. Moto already won in that case, but it is on appeal. Only time will tell if that is based on a German precedent, or will be overturned on appeal. Whichever way the appeals go will shape most of the rest of the Moto & Samsung FRAND cases in Germany -- if the EU doesn't weigh-in before the appeals are done.



    Quote:

    I don't see a clear right or wrong party as things stand.



    More or less. Part of the answer is whether or not Apple has ben escrowing FRAND rate license fees like they did in the Nokia case. If they did Apple is on relatively clean moral ground and won't take a bath whatever the specific licensing outcome, but could come out way ahead in a settlement if the courts don't favor the licensers.
  • hirohiro Posts: 2,663member
    Quote:
    Originally Posted by Gatorguy View Post


    A 2.25% royalty rate, if adopted industry-wide, would be completely unsustainable and cause severe issues for price-conscious consumers.



    IMHO, not good so far Google.



    More than severe issues. It would put the entire communications industry out of business. The patents are so spread out amongst vendors that it is literally impossible for a single company to deliver an end to end system that is not infringing on some amount of other companies existing, registered, IP. On just about any communications device there are dozens to hundreds of patents as part of the standards declarations. That scrambled egg won't unscramble.



    44 patents @ 2.25% doubles the cost of a device, but that raised the price requiring even more license fee when based on device cost. The curve actually breaks even at 28.8 patents (rule of 72) for a doubled cost item. I doubt any communications device can meet that low bar.



    Literally Moto's licensing demands, if upheld in court, are a form of patent armageddon for the entire communications industry, and specifically the form of situation why standards bodies devised the concept of FRAND in the first place.



    And by Google's specific offer to purchase guidance where Moto can not engage in any patent suits without Googles express permission, it looks like Google is not only turning a blind eye, but explicitly blessing Moto's expanding patent cases. Something that is wholly at odds with the already weak statement they have made about IP and FRAND.
  • gatorguygatorguy Posts: 15,077member
    Quote:
    Originally Posted by addabox View Post


    The "cross licensing" thing seems to be a real sticking point (if I recall correctly that was the problem early on with Moto's demands from Apple).



    I thought about that overnite. I've now come to the conclusion you have it nailed. This isn't about the money at all. Just as with Nokia's suit with Apple, this is about forcing cross-licensing, which Nokia did successfully. They essentially disposed of most of the IP-suit threats from Apple by using their essential patents are bargaining chips to get permission to use Apple's IP. It worked.



    Motorola started down the same path that Nokia took, and Google has put Apple and Microsoft on notice that unless they're willing to sit down and negotiate then they'll continue walking the walk. Google wants an end to the major IP wars. Reading Google's letter it's clear that they expect cross-licensing of IP rather than an exchange of money. Note the reference to an all-cash royalty if a licensee chooses not to share IP.



    The "discovered" Apple letter yesterday alongside Microsoft's exceptionally fast companion response to it was timed to appear just hours before Google's letters to EU regulators and authorities became public. IMO it was a timed PR ploy to put Google under pressure and it certainly works. Interestingly Google didn't blink yet. Perhaps they won't.



    I still don't like everyone down in the dirt and playing nasty, no exception for Google. My guess is they feel this is the best and perhaps only path to disposing of the Apple/MS IP attacks. At least I hope that's what the end-game is. If this is really just about the money to be had from royalties then tie yourself in folks and lock up your wallets.
  • piotpiot Posts: 1,344member
    Quote:
    Originally Posted by Gatorguy View Post


    Reading Google's letter it's clear that they expect cross-licensing of IP rather than an exchange of money.



    Well that's a big win for all of you who want an end to litigation... and open the barrier to innovation. </sarc>



    " We will swap our FRAND IP, which is what makes a phone... a phone. And you can swap your design and UI IP which makes your phone.... different."
  • nvidia2008nvidia2008 Posts: 9,262member
    Based on that extract, to me, there appears to be some vindictive action by Moto, whether or not directly targeted towards Apple. At this stage I'm not clear about Google's involvement in relation to their working relationship with Moto pre-purchase of Moto Mobility.



    Quote:
    Originally Posted by Gatorguy View Post


    I've seen that. It doesn't answer the question whether Apple was the only customer affected by the Chi Mei suspension, or whether it had anything at all to do with Apple. The timing by itself isn't evidence that Apple was singled out.



    As for the second point it's currently moot as the 4S using the Qualcomm chipset isn't part of the suit. In any case, I don't think Apple should ever be singled out and if it's happened it's not fair.



    Quote:
    Originally Posted by PowerMach View Post


    Here's a link to court documents: http://articles.law360.s3.amazonaws....doc_num-93.pdf



    Apple’s original iPhone went on sale in June 2007. Apple’s original iPhone contained

    an Infineon baseband chipset, which incorporated technology covered by patents that

    Motorola has declared as essential. Apple purchased the Infineon baseband chipset through

    a manufacturing agreement with Chi Mei Corporation, which manufactured the Infineon

    baseband chipset under a licensing agreement with Motorola. On August 4, 2007, Motorola gave Chi Mei a 60-day suspension notice on its licensing agreement.



    On December 16, 2009, Apple and Qualcomm entered into a contract whereby Apple

    would purchase chipsets from Qualcomm that were compliant with the CDMA2000

    standard. The chipsets incorporated technology that Qualcomm licensed from Motorola.

    On January 11, 2011, on the day Apple announced the Verizon iPhone 4, Motorola notified

    Qualcomm of its intent to terminate any and all license covenant rights with respect to

    Qualcomm’s business with Apple, effective February 10, 2011.



  • nvidia2008nvidia2008 Posts: 9,262member
    Quote:
    Originally Posted by AppleInsider View Post


    Microsofts' "Support for Industry Standards"



    Xbox360, HD-DVD, no Blu Ray on Xbox360, Silverlight, Active Server Pages, Exchange, Windows, WMV, WP7 apps, WinCE apps, Xbox360 apps...



    Yup, whole 'bunch of industry standards there.
  • hirohiro Posts: 2,663member
    Quote:
    Originally Posted by nvidia2008 View Post


    Xbox360, HD-DVD, no Blu Ray on Xbox360, Silverlight, Active Server Pages, Exchange, Windows, WMV, WP7 apps, WinCE apps, Xbox360 apps...



    Yup, whole 'bunch of industry standards there.



    Whinghing about the wrong kind of standards. Try bus signaling, cache coherency methods, device protocol implementations, UTF formatting, memory strobing, digital signal processing and the like.
  • mikeb85mikeb85 Posts: 506member
    Quote:
    Originally Posted by Mechanic View Post


    Also I hope that you realize that none of the apple patents there suing motorola over are standards based patents that are under FRAND terms. All of apples patents there suing over are private IP patents and Design patents that are not FRAND based.



    Yes, but it could be argued that multi-touch, for example, is something that is obvious and essential to a modern phone. So Apple's case against android is far from cut-and-dry. So why not cross license, save everyone a lot of trouble, and simply compete in an open marketplace.
  • iqatedoiqatedo Posts: 1,418member
    Quote:
    Originally Posted by Mikeb85 View Post


    Yes, but it could be argued that multi-touch, for example, is something that is obvious and essential to a modern phone. So Apple's case against android is far from cut-and-dry. So why not cross license, save everyone a lot of trouble, and simply compete in an open marketplace.



    Not to be disrespectful, however, at the time of the release of the first iPhone either there was nothing available that by your definition could have been considered modern or multi-touch was not obvious. Multi-touch is not essential to a modern phone, only to one that its manufacturer hopes will compete on its merits.



    Still, I'm not completely familiar with the market at the time. I could be wrong. \



    All the best.
  • hirohiro Posts: 2,663member
    Quote:
    Originally Posted by Mikeb85 View Post


    Yes, but it could be argued that multi-touch, for example, is something that is obvious and essential to a modern phone. So Apple's case against android is far from cut-and-dry. So why not cross license, save everyone a lot of trouble, and simply compete in an open marketplace.



    Quote:
    Originally Posted by IQatEdo View Post


    Not to be disrespectful, however, at the time of the release of the first iPhone either there was nothing available that by your definition could have been considered modern or multi-touch was not obvious. Multi-touch is not essential to a modern phone, only to one that its manufacturer hopes will compete on its merits.



    Still, I'm not completely familiar with the market at the time. I could be wrong. \



    All the best.



    None of this has any relevance to industry standard essentialness, so it becomes meaningless when discussing IP.



    Essential is only meaningful in the context of a industry standards body standard. At the time the standard is created, the standards body members declare which of their patents are essential to the standard, and in return for those bits of IP being accepted and not worked around, the granter gets a small but steady income stream from anyone who uses the standard. To get the income stream the standard helps create the granter has to agree to not take certain types of legal action (injunctions) over their included IP if it was used as part of the standard.



    Apple's multi-touch may look to some like it is essential to a smartphone, but there is no industry standard that says so. So it really isn't essential in any form of legal sense, it's just a feature that consumers have come to expect. That' differentiation, and something it is legal and ethical for companies to want to protect.



    Companies arguing over use of cellular radio digital signaling algorithms necessary to connect with cellular towers following an industry-wide standard is something that fits the essential in a legal sense because those algorithms were contractually pledged to be included on the standard in return for no questions asked, easily paid FRAND steady income streams.



    Going to court over a FRAND pledged patent and asking for injunctions is a direct assault on the whole set of agreements and government anti-trust language that makes the current telecommunications industry work. This is not a small thing.



    Publicly stating you want 2.25% of the final sales price for each standards pledged patent used in a device when it is known that there are hundreds of patents in every device also flies in the face of logic and 30 years of established industry practice. That is an industry killing stance that only a company desperate for any kind of cash would make.



    If Moto and Google lose a couple key cases, they will be left without a paddle, and be made pariahs since it will then be obvious they chose to not participate in the mass money-making standards party and the losses will remove any illusion of credible threat that they have. No other company will trust them and in cellular technology a generational shift will remove the income potential from their patent pools. Worst worst case for Moogle is a loss and then being uninvited to the standards formation process for follow-on standards. They are risking that right now. A desperate company (Moto) and one that is critically short on experience in how to play nicely with others IP (Google), collectively making a series of bad decisions that are only getting harder to recover from.
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