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Apple wins temporary reprieve from monitor in e-books antitrust case - Page 5

post #161 of 190
Quote:
Originally Posted by imt1 View Post
 

 

Cote's argument that there was no positive competition effect  as the market was pegged to either the agreed prices or the lowest selling price, vs giving retailers the free choice to pick their prices in the wholesale model is misleading. 

 

First, the only way the wholesale model works in Cote's world, would be if you couldn't sell all of the most popular and profitable titles at a loss (ala Amazon). If you could price books at whatever price you wanted but never below the price paid or a min profit of a few percentage points maybe. She glosses over the fact that by a vendor (Amazon) created a barrier to entry (I would call restraint of trade), to any other potential retailer, by selling at a loss where a retailer in this market would make a profit.  In addition, it also precludes a competitor for getting into the e-reader product market for the same reasons.  

 

You call it 'restraint of trade' but I looked into this and there's literally no evidence to support that whatsoever. Amazon sold loss-leaders, they did not operate at a loss entirely. Cote recognises this and states it explicitly, so your characterisation of 'wholesale in Cotes world' is totally wrong too.

 

Amazon's barrier to entry was that they offered very low prices to the customer, but still made a profit. Any company with a large sum of money that didn't mind making almost 0 profit could compete against Amazon, in fact Apple were in a pretty strong position to compete in my eyes.

 

Quote:
Second,  MFN Clause only dealt with new releases. Releases past this window, like 6 months, were dropped in price and were no longer subject to the MFN. Thus, a publisher could then offer a lower price on Amazons site then Apple, for these titles. How is this any different then a company being granted an exclusive on content for 6 months? In reality that would be worse since only 1 vendor has access and sales and would drive prices higher. Nothing in the agency model precluded another retailer from negotiating prices downward. The MFN just meant that Apple then had to be offered the same price, if lower then apple was offered currently. 

It's different because exclusive content must be negotiated, and for example Amazon would be able to fight it. What you're describing here is exactly the price fixing conspiracy that was at issue. All sellers are pegged to the same price, if one seller makes it cheaper, all of them may sell things cheaper. There is therefore no motivation to reduce prices.

 

Quote:
 Third, Amazon or any other e-book retailer didn't have to move to the agency model. Nothing in Apples agreement with the publishers required that and neither did the MFN Clause. MFN Clause only affected others that adopted the agency model. 

Apple was fully aware that publishers were trying to solve the 'Amazon Problem' so you can't plead ignorance on their side.

 

Quote:
Fourth, if you look at the Library and Book Trade Almanac, it shows the average price of e-books falling, since iBooks came into existence.  Per the article in Salon quoted earlier in the posting and available here: http://www.salon.com/2014/01/12/amazons_bogus_anti_apple_crusade/  

That link doesn't actually contain any sources, and it discusses only average selling price. Perhaps you should take a look at defence exhibit DX-434 or DX-449. Both show price increases despite the average falling.

 

Honestly you're just ignoring the evidence, even the evidence that Apple submitted, showing prices rise. You also straight up described a non competitive, anti-consumer market, but didn't notice. You really should try and approach this from a neutral perspective.

post #162 of 190
Quote:
Originally Posted by ItsTheInternet View Post

You call it 'restraint of trade' but I looked into this and there's literally no evidence to support that whatsoever. Amazon sold loss-leaders, they did not operate at a loss entirely. Cote recognises this and states it explicitly, so your characterisation of 'wholesale in Cotes world' is totally wrong too.

You really should try and approach this from a neutral perspective.

The paragraph above and the 50+ other comments you've made in this thread alone show that you're also not coming at this from a neutral perspective.

Cote is wrong on this issue and will be told so by the appellate court in the near future. The fact that they have not had the opportunity to do so yet does not make her "right."
post #163 of 190
Quote:
Originally Posted by GregInPrague View Post


The paragraph above and the 50+ other comments you've made in this thread alone show that you're also not coming at this from a neutral perspective.

Cote is wrong on this issue and will be told so by the appellate court in the near future. The fact that they have not had the opportunity to do so yet does not make her "right."

How am I not? I have no loyalty to Amazon or Apple, and I live in another country where these agreements didn't matter.

 

I've taken the position that I have to decide for myself based on both of their filings. Apple's defence exhibits show the price of all 5 colluding publishers shooting well above the average and staying there. Exactly what was discussed between Apple and the publishers that completely admit their illegal conduct.

 

Taking a summarised, third-party source and acting as if that single reference defeats the entire court case is crazy, especially when Apple didn't even file those figures in their defence.

post #164 of 190
Quote:
Originally Posted by ItsTheInternet View Post
 
Quote:
Originally Posted by GregInPrague View Post


The paragraph above and the 50+ other comments you've made in this thread alone show that you're also not coming at this from a neutral perspective.

Cote is wrong on this issue and will be told so by the appellate court in the near future. The fact that they have not had the opportunity to do so yet does not make her "right."

How am I not? I have no loyalty to Amazon or Apple, and I live in another country where these agreements didn't matter.

 

I've taken the position that I have to decide for myself based on both of their filings. Apple's defence exhibits show the price of all 5 colluding publishers shooting well above the average and staying there. Exactly what was discussed between Apple and the publishers that completely admit their illegal conduct.

 

Taking a summarised, third-party source and acting as if that single reference defeats the entire court case is crazy, especially when Apple didn't even file those figures in their defence.

 

I'm curious. If, as you say, you live in another country where these agreements don't matter, and have no loyalty to Amazon or Apple, why are you devoting so much time and effort to researching this issue and arguing on this forum?

post #165 of 190
Quote:
Originally Posted by muppetry View Post
 

 

I'm curious. If, as you say, you live in another country where these agreements don't matter, and have no loyalty to Amazon or Apple, why are you devoting so much time and effort to researching this issue and arguing on this forum?


Well, I lurked around on this site beforehand, and I saw a lot of posts regarding this trial and Apple's other legal cases elsewhere. I read the documents individually and the 'facts' stated here and the conclusions people met didn't seem to match with reality.

 

I'd been considering joining for a while anyway as I do genuinely think Apple is pushing technology forward faster than anyone else. That's their market strategy and so it's quite exciting, but I do believe they should be held to account for their bad practises.

 

That simple really, I don't think anyone is helped by incorrect facts, it just convinces people here that the government is anti Apple when in fact they have previously protected Apple from an international ruling (That people also don't understand because of bad facts).

post #166 of 190
Quote:
Originally Posted by ItsTheInternet View Post
 

 

 

That simple really, I don't think anyone is helped by incorrect facts, it just convinces people here that the government is anti Apple when in fact they have previously protected Apple from an international ruling (That people also don't understand because of bad facts).

Can you enlighten us on this government Apple protection?  Are you referring to the ITC veto?  If so I'm pretty sure it's you who needs to read more.

post #167 of 190
Quote:
Originally Posted by GregInPrague View Post
 

Can you enlighten us on this government Apple protection?  Are you referring to the ITC veto?  If so I'm pretty sure it's you who needs to read more.


I am indeed. Apple refused to negotiate on reasonable terms and got slapped down. Obama protected them. It's not much more complex than that.

post #168 of 190
Quote:
Originally Posted by ItsTheInternet View Post
 


I am indeed. Apple refused to negotiate on reasonable terms and got slapped down. Obama protected them. It's not much more complex than that.

 

 

Well, this clearly shows that you're not coming at Apple related issues from a neutral perspective as you claim.  That situation was much more complex than you suggest and saying it's not shows how little you know about this issue in particular and calls into question your judgement on the other ~115 posts you've made on AI.

 

The ITC is a part of the executive branch of the US government and is therefore subordinate to Obama.  He didn't "protect" Apple, he decided that the decision made by his subordinates was wrong and acted accordingly.  Are you suggesting that any time a boss disagrees with his subordinates and goes in a different direction that the boss is unjustly "protecting" someone?

 

There is plenty of evidence that Samsung never offered FRAND terms to negotiate on, so how can Apple possibly refuse to negotiate reasonable terms when they never received any?

post #169 of 190
Quote:
Originally Posted by GregInPrague View Post
 

 

The ITC is a part of the executive branch of the US government and is therefore subordinate to Obama.  He didn't "protect" Apple, he decided that the decision made by his subordinates was wrong and acted accordingly.  Are you suggesting that any time a boss disagrees with his subordinates and goes in a different direction that the boss is unjustly "protecting" someone?

Yes. When a boss vetoes a decision of a subordinate in extremely rare circumstances then I typically consider that protectionism.

 

 

Quote:
There is plenty of evidence that Samsung never offered FRAND terms to negotiate on, so how can Apple possibly refuse to negotiate reasonable terms when they never received any?

This really isn't the place for discussion but from what I read Apple said that licensing their software would cost serious percentage points on any product, but they'd only be willing to pay a fraction as much for software they license. If you want to discuss this further we can go to PM or start another thread if you like. This thread is already too fractured.

 

Btw, trying to paint me as some biased anti Apple crusader is kinda silly. Why would I join and spend time trying to make nuanced posts etc if I was anti Apple? Surely I'd just be on some random Windows Mobile site shouting about how great my phone is?

post #170 of 190
Quote:
Originally Posted by ItsTheInternet View Post

 

Btw, trying to paint me as some biased anti Apple crusader is kinda silly. Why would I join and spend time trying to make nuanced posts etc if I was anti Apple? Surely I'd just be on some random Windows Mobile site shouting about how great my phone is?

 

Whether you are one of them or not there are plenty of anti-Apple trolls that frequent this site and regularly post.  Many of them even start by saying "how much they love Apple products but can't abide by Apple's behavior in xxxx situation."  Why they join and spend their time making nuanced posts (beyond possibly being paid Samsung shills) is completely beyond me.  

post #171 of 190
Quote:
Originally Posted by ItsTheInternet View Post
 

Yes. When a boss vetoes a decision of a subordinate in extremely rare circumstances then I typically consider that protectionism.

 

 

Because it couldn't be a boss who only gets involved when the failure of the subordinate is egregious...

post #172 of 190

Quote:

Originally Posted by GregInPrague View Post
 

 

Whether you are one of them or not there are plenty of anti-Apple trolls that frequent this site and regularly post.  Many of them even start by saying "how much they love Apple products but can't abide by Apple's behavior in xxxx situation."  Why they join and spend their time making nuanced posts (beyond possibly being paid Samsung shills) is completely beyond me.  

 

I haven't really seen much of that, nor particularly nuanced posts. What I have seen is that as soon as I disagreed with the apparent consensus, I get attacked from all sides. The most aggressive and troll posters seem to be well established with tens of thousands of posts.

 

Samsung shilling this site also seems pretty unlikely, but they clearly have no idea how to spend their money wisely so you never know!

 

edit: For what it's worth, I'm not actually a big fan of Apple's current products, just their pushing of tech. I think the iPad is too limited, the iPhone is too expensive and I already get free laptops for life and build my own PCs so neither Macbooks, iMacs or Mac Pros matter to me.

 

Quote:
Originally Posted by GregInPrague View Post
 

 

Because it couldn't be a boss who only gets involved when the failure of the subordinate is egregious...


From what I read, this is the first veto in 26 years. Shockingly when it applies to an American company. I'm willing to believe it's not protectionism, but you're going to have to show me some strong evidence. the ITC final judgement is pretty damn harsh to Apple.

post #173 of 190
Quote:
Originally Posted by ItsTheInternet View Post

Quote:

From what I read, this is the first veto in 26 years. Shockingly when it applies to an American company. I'm willing to believe it's not protectionism, but you're going to have to show me some strong evidence. the ITC final judgement is pretty damn harsh to Apple.

Since you read Cote's 60+ page brief this should be a piece of cake. http://tech.fortune.cnn.com/2013/08/05/apple-samsung-itc-pinkert/

Again, if you were neutral you wouldn't use loaded statements like "Shockingly when it applies to an American company." That adds nothing to the arguement and makes your next sentence not believable.
post #174 of 190
Quote:
Originally Posted by GregInPrague View Post


Since you read Cote's 60+ page brief this should be a piece of cake. http://tech.fortune.cnn.com/2013/08/05/apple-samsung-itc-pinkert/

Again, if you were neutral you wouldn't use loaded statements like "Shockingly when it applies to an American company." That adds nothing to the arguement and makes your next sentence not believable.

Sorry perhaps I should explain. I am quite anti American when it comes to intellectual property and copyright law, so I certainly have a bias there. It doesn't really translate through to Apple though. Apple aren't to blame for US protectionism, but I certainly see some of their statements as hypocritical.

 

Will read the link shortly but it seems to be a dissenting view alone, so it has value but needs comparison.

 

edit: Now I've read it the situation seems to be more complex than I was aware of, I'll keep reading but my statement above may have been too strong.


Edited by ItsTheInternet - 1/24/14 at 9:58am
post #175 of 190
Quote:
Originally Posted by ItsTheInternet View Post

Quote:


From what I read, this is the first veto in 26 years. Shockingly when it applies to an American company. I'm willing to believe it's not protectionism, but you're going to have to show me some strong evidence. the ITC final judgement is pretty damn harsh to Apple.

As you obviously know, samsung tried to get an import ban on apple products based on FRAND encumbered patents, if they had been successful if would have set a dangerous precedent and given all FRAND pledged patents hold up value, which would drive up costs for consumers and distorted the market
post #176 of 190
Quote:
Originally Posted by Mulder View Post

As you obviously know, samsung tried to get an import ban on apple products based on FRAND encumbered patents, if they had been successful if would have set a dangerous precedent and given all FRAND pledged patents hold up value, which would drive up costs for consumers and distorted the market

Even after the Presidential veto there were still, and may still be, companies trying to get ITC "injunctions" using FRAND-pledged IP. LSI (still being pursued AFAIK) Interdigital and Adaptix are some examples. The veto wasn't because the Samsung patents were standard-essential.
Edited by Gatorguy - 1/24/14 at 10:13am
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post #177 of 190
Thats true but since the presidential veto senators from both sides have past instructions to the FTC to try and avoid the same scenario
post #178 of 190
Quote:
Originally Posted by Mulder View Post

Thats true but since the presidential veto senators from both sides have past instructions to the FTC to try and avoid the same scenario

PM sent. Most here wouldn't be interested in the facts as they're relatively boring.
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post #179 of 190
Quote:
 edit: Now I've read it the situation seems to be more complex than I was aware of, I'll keep reading but my statement above may have been too strong.

Here's the whole FRAND thing in a nutshell. Companies like Motorola, Nokia, Samsung, etc., have been abusing FRAND patents for decades, since there's no consensus on how to come up with a FRAND rate, and all SEP negotiating takes place in dark rooms under strict NDAs ensuring total secrecy with no oversight. It's only now that the stakes of the smartphone market, and everybody's interest in it, has thrown a spotlight on the FRAND licensing so that antitrust regulators, courts, standards bodies, legislators, and tech wonks are all watching, and while it will take some time the process is underway of clarifying terms and principles to prevent more abuse.

 

Here's the thing about injunctions. Traditionally the injunction is a remedy that is only used in cases where the potential harm is irreparable. Irreparable essentially means "money changing hands won't fix the problem." Stopping the harmful behavior doesn't correct the past but prevents more irreparable harm from occurring. Examples of irreparable harm are things like loss of reputation or market share. Now the consensus being formed around the globe right now, is that when one pledges to license standards essential patents to anyone under fair, reasonable, and non-discriminatory ways, one has essentially admitted that no irreparable harm could come from any infringing those patents. The only harm one can claim is the missed revenue. IOW, the company's reputation or market share are not dependent on it. Consequently, since no irreparable harm can come from any infringement of a SEP, SEPs are not eligible for injunctions. Period. A court can always settle a dispute over a standards essential patent infringement with a monetary remedy.

 

This is evolving law in the US, very little exists in the case law or statutes since standards essential patents are a relatively new phenomena. It is perfectly appropriate for the president to see the way the wind is blowing and get out in front of it by declaring it his trade policy that SEPs not be granted injunctions. The ITC chose to ignore the president's policy and grant Samsung an injunction over a SEP. The president vetoed that decision and it would not have been any different if the SEP had been owned by Apple. The policy is no injunctions for SEPs. Period. 

post #180 of 190
Quote:
Originally Posted by ruddy View Post

Here's the thing about injunctions. Traditionally the injunction is a remedy that is only used in cases where the potential harm is irreparable. . . It is perfectly appropriate for the president to see the way the wind is blowing and get out in front of it by declaring it his trade policy that SEPs not be granted injunctions. The ITC chose to ignore the president's policy and grant Samsung an injunction over a SEP. The president vetoed that decision and it would not have been any different if the SEP had been owned by Apple. The policy is no injunctions for SEPs. Period. [/COLOR]

Here's the actual letter overturning the exclusion and cease and desist finding at the ITC. You should read it. What you imagine it said isn't at all what it really said,
http://www.scribd.com/doc/157897822/Obama-Administration-ITC-Letter

Page two if you're not that much into reading.
Edited by Gatorguy - 2/5/14 at 12:05pm
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post #181 of 190

What part of

Quote:
 exclusionary relief should be available based only on the relevant factors described in the Policy Statement

don't you understand?

 

English does not appear to be your first language. I suggest you actually read the bottom 2¶s of page 1, and the top 2¶s of page 2, and footnote 3 on page 2, all of which summarize the President's Policy Statement on Remedies for Standard Essential Patents Subject to Voluntary FRAND Commitments, which essentially says there will be no injunctions for SEPs, except for some rare hypothetical situations (listed in fn3). The ITC went rogue by granting Samsung an injunction anyway, against the president's clear policy, which resulted in the rare presidential veto. Do you understand that an exclusion order and exclusionary relief means an injunction? 

post #182 of 190
Quote:
Originally Posted by ruddy View Post

What part of
don't you understand?

English does not appear to be your first language. I suggest you actually read the bottom 2¶s of page 1, and the top 2¶s of page 2, and footnote 3 on page 2, all of which summarize the President's Policy Statement on Remedies for Standard Essential Patents Subject to Voluntary FRAND Commitments, which essentially says there will be no injunctions for SEPs, except for some rare hypothetical situations (listed in fn3). The ITC went rogue by granting Samsung an injunction anyway, against the president's clear policy, which resulted in the rare presidential veto.  

So then "no injunctions for SEP's... PERIOD", which is what you originally said isn't true (and by your own admission) just as I posted.
Just as I posted. Puffery won't change that. Perhaps you should try "hey you're right, I might have overstated it the first time."
Edited by Gatorguy - 2/9/14 at 2:02pm
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post #183 of 190
Quote:
Originally Posted by Gatorguy View Post

So then "no injunctions for SEP's... PERIOD", which is what you originally said isn't true (and by your own admission) just as I posted.
Just as I posted. Puffery won't change that. Perhaps you should try "hey you're right, I might have overstated it the first time."

Well I admit the President's policy postulates certain rarified and hypothetical exceptions where an injunction might still be allowed, but the reality is those exceptions never happen and aren't ever likely to happen. You give me a shout when one does, okay. Meanwhile I'm comfortable saying that the ITC will never grant an injunction over a Standards Essential Patent again. So yeah, "no injunctions for SEP's... PERIOD"!

post #184 of 190
You may or may not be aware that there are several current cases being considered for exclusion orders by the ITC that involve SEP's. I believe the trade representative indicated they should be considered on a case by case basis, with the ITC paying particular attention to certain criteria to support their position if they rule an exclusion order is appropriate.

With regard to Europe there's an anticipated ruling coming up from the European Court of Justice concerning the availability of remedies to SEP holders raised in a patent infringement lawsuit filed by Huawei against ZTE.

...and yup. it's another case that started out in Germany. All the techs, from Apple to ZTE play in their courtrooms, and for good reason. German courts now need some clarification on the relief that should be available to companies that contributed to standards but never specifically agreeing to give up any of their patent enforcement rights when they did so.
Edited by Gatorguy - 2/9/14 at 4:35pm
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post #185 of 190

I am aware the ITC has upcoming decisions to make about injunctions for SEPs. I believe they will recall the President's policy this time, and recall what happens when they make decisions contrary to the President's clearly stated policy, and I believe they will also recall the painful ignominy of having their decisions vetoed. 

 

Germany has been a holdout, and it's quite encouraging that rather than continue their rogue status wrt injunctions for SEPs, they are now looking to the Court of Justice of the European Union (CJEU) to solve these issues for them. 

 

Quote:
 German courts now need some clarification on the relief that should be available to companies that contributed to standards but never specifically agreeing to give up any of their patent enforcement rights when they did so.

 

On the contrary, pledging to license standards-essential-patents on FRAND terms is, in fact, giving up MOST of their patent rights when they do so. Their leverage is sharply curtailed. They can't gouge or be unreasonable when charging for a license, while the non-SEP patent holder is free to charge whatever they want or simply refuse to license under any terms, if they want. The SEP holder also can't discriminate who they license to, they must offer to any and all, while the non-SEP patent holder is free to discriminate against whoever they want, especially their competitors. SEP holders who have pledged to FRAND terms really have no power left in SEP patents, except to extract a nominal payment for their use. 

post #186 of 190
Quote:
Originally Posted by ruddy View Post

On the contrary, pledging to license standards-essential-patents on FRAND terms is, in fact, giving up MOST of their patent rights when they do so. Their leverage is sharply curtailed. They can't gouge or be unreasonable when charging for a license, while the non-SEP patent holder is free to charge whatever they want or simply refuse to license under any terms, if they want. The SEP holder also can't discriminate who they license to, they must offer to any and all, while the non-SEP patent holder is free to discriminate against whoever they want, especially their competitors. SEP holders who have pledged to FRAND terms really have no power left in SEP patents, except to extract a nominal payment for their use. 

What did all that have to do with an SEP holder giving up patent enforcement rights that they did not agree to? The limited trading away of specific rights was addressed within the voluntary agreements between the patentee and the pertinent standards body. They knew going in what they were willing to give and what they would still control in return for granting inclusion of their patent in a standard.

Wouldn't placing a limit not originally agreed to be a contract law issue that would need to be heard, in addition to legal issues surrounding proactive changing of centuries-old property rights? I believe it would be, thus the reason no US or European court has ruled out injunctions as a remedy for SEP infringement actions. AFAIK.

FWIW, I personally believe that there should be very very few allowances made for SEP injunctions. Heck I don't even think software should generally be patentable in the first place. Anyway, at it's heart pledging IP to a standards body equals a commitment to licensing being available to all. At the same time I'm not so blinded by some recent rattling around on SEP's to believe like you seem to that the rules are now in place and law is settled, SEP injunctions won't happen anymore. I'll ask you the same question I asked TBell:

What would you do with a company that acknowledges it may infringe on FRAND-pledged IP yet announces it won't accept any judicial royalty award in excess of some specific amount that pleases the infringer. In my view that would make the company an unwilling licensee and subject to an injunction. What's your view on that? If you don't think even this situation should potentially quality for a product injunction what would you suggest for another remedy that would pull the unwilling licensee into the fold?
Edited by Gatorguy - 2/10/14 at 6:09am
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post #187 of 190
Quote:
Originally Posted by Gatorguy View Post


What did all that have to do with an SEP holder giving up patent enforcement rights that they did not agree to? The limited trading away of specific rights was addressed within the voluntary agreements between the patentee and the pertinent standards body. They knew going in what they were willing to give and what they would still control in return for granting inclusion of their patent in a standard.

SEP holders voluntarily agree to a FRAND rate. FRAND terms in 99.99999 percent of cases mean they can claim no irreparable harm. The question is why do you believe a SEP holder should be able to claim irreparable harm when they've already agreed to license the SEP to anyone at an affordable rate?

 

Quote:
 Wouldn't placing a limit not originally agreed to be a contract law issue that would need to be heard, in addition to legal issues surrounding proactive changing of centuries-old property rights? I believe it would be, thus the reason no US or European court has ruled out injunctions as a remedy for SEP infringement actions. AFAIK.

That's because one can conceive of rare hypothetical situations where irreparable harm might occur. Doesn't mean it's ever happened or is likely to.

 

FWIW, I personally believe that there should be very very few allowances made for SEP injunctions. Heck I don't even think software should generally be patentable in the first place. Anyway, at it's heart pledging IP to a standards body equals a commitment to licensing being available to all. At the same time I'm not so blinded by some recent rattling around on SEP's to believe like you seem to that the rules are now in place and law is settled, SEP injunctions won't happen anymore.

I've never said the law is settled. I've said that a global consensus is emerging for the vast majority of cases that there is no excuse for granting injunctions over SEPs, and that seeking such injunctions has been found to be abusive. This is the consensus among policymakers, legislators, antitrust regulators, most European Courts, and US District Courts. Soon US Appellate Courts will be weighing in, soon the CJEU, new legislation is being drafted to close the loophole, standards bodies are also redrafting their contracts for future standards. You can deny it all you like, just because there's been a loophole SEP abusers have been able to exploit for the last few decades doesn't mean that situation has the slightest chance of continuing. The laws on SEPs and FRAND rates are in the process of being settled as we speak. Already we are in a situation where (except in Germany and perhaps South Korea) no one is able to get an injunction for SEPs anymore. If you have evidence to the contrary, please share it.

 

 I'll ask you the same question I asked TBell:

What would you do with a company that acknowledges it may infringe on FRAND-pledged IP yet announces it won't accept any judicial royalty award in excess of some specific amount that pleases the infringer. In my view that would make the company an unwilling licensee and subject to an injunction. What's your view on that? If you don't think even this situation should potentially quality for a product injunction what would you suggest for another remedy that would pull the unwilling licensee into the fold?

Assuming you are referring to the Apple v Motorola case in Wisconsin which Judge Crabb dismissed, and which is now being revived, I'd point out you have mischaracterized Apple's position. They did not refuse to abide by a judge's "royalty award in excess of some specific amount that pleases the infringer," they refused to give up their right to appeal a royalty award that they didn't like. Apple has never said they wouldn't pay a court-ordered royalty award.

post #188 of 190
Quote:
Originally Posted by ruddy View Post

. The policy is no injunctions for SEPs. Period. [/COLOR]

Quote:
Originally Posted by ruddy View Post


I've never said the law is settled. I've said that a global consensus is emerging for the vast majority of cases that there is no excuse for granting injunctions over SEPs, and that seeking such injunctions has been found to be abusive.

Was it really all that hard to admit the absolute position you originally took, and that I pointed out was never stated by any court, or President or any other EU or US official, was a bit overstated? You an I may generally agree on the way we think things should be. In fact I might even be more anti-software patent than you, dunno. Where I disagree with you is on the way things factually are. Wishes and reality might merge eventually but I don't believe it's there yet. IMO the true reveal will be when there's an opportunity for a "no SEP injunctions" ruling to be tested in a higher court. That hasn't happened yet, but that EU ruling should be coming up soon.

In the meantime I'm not aware that seeking an injunction over FRAND-pledged infringement has been "found to be abusive". I'm aware of specific cases, and questions and issues surrounding those particular ones , but I don't recall any declaring that simply asking for an injunction would be abusive. If so there's very many companies in violation. Even the very recent agreement the EU made with Samsung doesn't rule them out, and worse lasts for just five years. Hopefully by then there's a clearer legal picture.

EDIT: I forgot to reply to your mention of Apple/Moto and Judge Crabb. In that instance I think it was an example of reverse-holdup. That's another cited exception for an abusive patent licensing tactic that might qualify for an injunction isn't it?
Edited by Gatorguy - 2/11/14 at 4:23am
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post #189 of 190
Quote:
Originally Posted by Gatorguy View Post

Was it really all that hard to admit the absolute position you originally took, and that I pointed out was never stated by any court, or President or any other EU or US official, was a bit overstated? 

 

Nope, I stand by my statement 100%, which is a prediction going forward since the ITC veto. As I stated in the other thread, the ITC can't make a FRAND determination, it doesn't have that authority. Therefore the President has effectively removed the ITC's ability to grant an injunction for any SEP where a FRAND determination hasn't been first made by a District Court. 

Quote:
In the meantime I'm not aware that seeking an injunction over FRAND-pledged infringement has been "found to be abusive". 

 

Obviously you still haven't bothered to read the president's policy statement the ITC ignored, or much followed the FRAND antitrust proceedings in the EU or US. Here's one example:

Quote:
 The European Commission has informed Samsung of its preliminary view that Samsung's seeking of injunctions against Apple in various Member States on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules.

Samsung responded by dropping all their EU litigation against Apple over SEPs.

 

Quote:
EDIT: I forgot to reply to your mention of Apple/Moto and Judge Crabb. In that instance I think it was an example of reverse-holdup. That's another cited exception for an abusive patent licensing tactic that might qualify for an injunction isn't it? 

What you don't get is that a theory of reverse holdup is no longer going to get anyone anywhere without a FRAND rate determination first. That was the technicality/loophole that SEP abusers like Samsung and Motorola were using at the ITC and in Germany. The President closed the ITC loophole. In Germany it'll take longer probably not until the CJEU rules on some German appeals. No US court will entertain a reverse patent holdup theory unless a FRAND rate has first been set. That's what happened for Google v Microsoft. And Google lost it's reverse patent holdup defense because the Court found their royalty demands weren't Fair, weren't Reasonable, weren't NonDiscriminatory. Instead they found that Google breached its FRAND obligations to the standards bodies. That's going to be the process now for everyone. FRAND first, only THEN can it be determined whether there was hold-up, or reverse holdup.


Edited by ruddy - 2/14/14 at 10:05am
post #190 of 190
Quote:
Originally Posted by ruddy View Post

Nope,  I stand by my statement

Well of course you do. 1rolleyes.gif
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