In a breakdown of Google's letter and a response from Apple, All Things D reports that Google, and by proxy Motorola Mobility, are proposing the new argument in an ongoing patent litigation against Apple.
In Google's letter to the Judiciary Committee, General Counsel Kent Walker wrote:
While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. ? Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee?s concern regarding the abuse of SEPs should encompass them as well.
According to the publication, the Android maker is claiming popular patents that have become all but ubiquitous in the marketsplace should be considered "commercially essential" and are therefore just as vulnerable for abuse as certified standards essential patents. The examples of multitouch technology and slide-to-unlock innovations, both of which have been used by Apple as leverage in patent dispute cases in the past, fall under the commercially essential category.
Illustration from Apple's U.S. Patent No. 7,663,607 for a "Multipoint touchscreen" | Source: USPTO
Apple fired back with its own letter to the Committee on Wednesday written by the company's General Counsel Bruce Sewell.
"That a proprietary technology That a proprietary technology becomes quite popular does not transform it into a ?standard? subject to the same legal constraints as true standards,? Sewell wrote.
From Sewell's letter:
The capabilities of an iPhone are categorically different from a conventional phone, and result from Apple?s ability to bring its traditional innovation in computing to the mobile market. Using an iPhone to take photos, manage a home-finance spreadsheet, play video games, or run countless other applications has nothing to do with standardized protocols. Apple spent billions in research and development to create the iPhone, and third party software developers have spent billions more to develop applications that run on it. The price of an iPhone reflects the value of these nonstandardized technologies — as well as the value of the aesthetic design of the iPhone, which also reflects immense study and development by Apple, and which is entirely unrelated to standards.
Apple argues against Google's claim, saying that standardized technologies create the base on which non-standardized or proprietary technology is built. Therefore, if non-standardized property were governed by the same rules as declared essential patents there would be no innovation in the marketplace which would in turn harm consumers.
"There?s a big difference between technology that became popular because it was adopted as a standard and technology that became popular because consumers fell in love with it. In the case of the smartphone patent wars, the first makes a cellphone a cellphone and the second makes it an iPhone," All Things D's John Paczkowski writes. "One is a core technology, the other is experiential product differentiation."
The two companies are currently engaged in a fierce international court struggle over patents related to Google's Android and Apple's iOS mobile operating systems. Most recently a German court cleared Motorola's Xoom tablet of infringing Apple iPad patents.
In the U.S., the International Trade Commission is currently reviewing a recent decision that could see the ban of Apple products which infringe on a Motorola Wi-Fi patent. The implications of the review are severs as many iDevices could see sales stoppages in one of the world's largest wireless markets. Motorola first filed the grievance in 2010.