Originally Posted by Spacepower
I think your missing the order of events here...
A patent cannot be essential to a standard unless it is already/or will be pledged to a standard. By this it means that the patent owner willingly puts forth its patents under the assumption of FRAND, willing to license to anyone.
By definition, a patent can't be "essential" to a standard if it is not part of a standard. If it is part of a standard then it has be to licensed on frand terms, according to the ITU, ISO, and IEEE.
"For the avoidance of doubt in exceptional cases where a STANDARD can only be implemented by technical solutions, all of which are infringements of IPRs, all such IPRs shall be considered ESSENTIAL." In fairness I do believe that I overstepped by also claiming the patent holder could be forced to license on FRAND terms. The cite only establishes the IP to be deemed essential regardless of the holder's views. Thank you for sending me on a verification check.
Going further than that despite Microsoft's loud and long protests to the EU, they were ordered to not only license their server tech including appropriate patents, but told it would be on FRAND terms, available to all competitors.
From MS: "The Commission also held that Microsoft violated EU competition law by failing to disclose to competitors some of its most innovative technologies relating to “server” operating systems (i.e., back-office computers that help run networks). The Commission reached this conclusion despite the fact that many of the world’s most powerful IT companies, such as IBM, Sun Microsystems, Hewlett-Packard, Novell, and Red Hat, compete vigorously in the supply of server operating systems. The Commission ordered Microsoft to create extensive documents describing its complex and innovative technologies – many of which are protected by patents and trade secrets – and to license these technologies to competitors. In recent months, the Commission has broadened the scope of this compulsory license considerably by holding that Microsoft: (i) must license these technologies even outside Europe; (ii) must license these technologies royalty-free; and (iii) cannot prevent licensees from disclosing Microsoft trade secrets in their source code."
As for your comments on Mr. Mueller, if you spent much time here you might know that FOSSPatents is one of my three go-to sources on patent litigation, the other two being PatentlyO and Groklaw. In the case of Mr. Mueller, he almost always has the facts he chooses to use correct, which is admirable and a good reason for my visits to his blog. He just doesn't mention any that might not be beneficial to Microsoft's goals (nor Oracle's now). You never found it odd that there's not even one article at FOSSPatents criticising Microsoft?
Motorola isn't saying "that's the way it should work". On the contrary it's the way it does work, and Mr. Mueller is well aware of that. Since it doesn't advance Microsoft's arguments to have a mention by Mueller that MS partner Nokia reportedly wants 2.5% of a finished consumer-ready device cost for a single patent, up to 5% for 10 or more, he's not going to say a word about it. Qualcomm wants 3.5% of a completed device price not just a chipset, but don't expect FOSSPatents to mention it since it's an inconvenient fact. And those are just the two of the bigger ones. According to the ETSI, companies from Ericsson to Alcatel, and ZTE to Huawei receive royalty payments based on a percentage of a finished consumer device's price. It's not the rarity that "someone" apparently convinced you it is.
I believe Microsoft's goal, Apple's as well, is to isolate Motorola as a rogue patent claimant, basing royalties on the "ridiculous notion" of a finished device. Pointing out that it's a common royalty basis for FRAND royalties in the telecom industry would not support his client's claims would it? How else to explain his failure to mention it while portraying Moto as an outlier.
So contrary to what you might think, yes I do read every single article that's posted at FOSSPatents. I also read the Twitter links he offers to better understand his sources and views. But I don't trust him to tell me the whole story. He's paid to offer support to his clients, Oracle and Microsoft among others, and IMO that support appears to extend into his personal blogs, evidenced by the total lack of any concerns or criticisms written about them. He's great with the facts. Just realize he'll dole out only those that aren't at odds with his clients gameplans as far as I can see.
Would I go so far as to say Motorola or Samsung's use of SEP's to seek injunctions is proper. No sir. Nor do I necessarily agree with a BOM being the proper royalty basis in all cases but at the same time that's been seen as proper, even by Microsoft, for a long time. Neither Apple nor Microsoft should be able to avoid paying the same royalties requested from other licensees (with credit for patents granted back in return, ie cross-licensing) and there should be consequences. I don't see any obvious reason those penalties could not be determined by a court, altho they should seldom get that far IMO. I don't support injunctions as a proper cure except in the possible case that an infringer absolutely refuses to pay royalties under any circumstance and in opposition to court rulings.
Edited by Gatorguy - 7/7/12 at 2:03pm