Apple offered to pay FRAND rates, but reserved the right to challenge (presumably a challenge would be invalidated if they paid without reserving that right?), at which point Motorola declined to accept FRAND rates. Apple used the technology anyway, on the basis that they had offered and would pay whenever the offer was accepted.
Now Motorola wants non-FRAND rates for the period of use to date and the German court has agreed that they can demand more than FRAND because they believe that Apple lost the right to FRAND when they declared their intention to challenge the patents.
If that is correct, then part of the problem seems to be that there is no standard definition of a FRAND agreement, so individual courts, anywhere, are free to interpret it how they see fit and according to local precedent, if such exists. I could argue this either way. It is clearly a technical loss for Apple. Maybe Motorola are using it as leverage to get Apple to withdraw their patent challenge, at which point they might accept FRAND rates retrospectively. In this jurisdiction, it looks as if Apple need to decide if they want to gamble on saving paying FRAND rates with a potential for a rather larger bill if they lose.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
I personally think Apple is sacrificing a pawn. It probably flooded the German market with product, so it will have enough to sell for months
Do you think that their prior and upcoming financial reports about "units shipped" and "units sold" should disclose this?
The German Market is the biggest in Europe. In fact, the injunction would apply to all of Europe. Do you think that Apple flooded all of Europe with product, so it will have enough to sell for months? Wow.
Apple offered to pay FRAND rates, but reserved the right to challenge (presumably a challenge would be invalidated if they paid without reserving that right?), at which point Motorola declined to accept FRAND rates. Apple used the technology anyway, on the basis that they had offered and would pay whenever the offer was accepted.
Now Motorola wants non-FRAND rates for the period of use to date and the German court has agreed that they can demand more than FRAND because they believe that Apple lost the right to FRAND when they declared their intention to challenge the patents.
I think that sums it up.
Quote:
If that is correct, then part of the problem seems to be that there is no standard definition of a FRAND agreement, so individual courts, anywhere, are free to interpret it how they see fit and according to local precedent, if such exists.
Wait. That came out of nowhere.
I think that it is fair to assume that the standard FRAND license, at least in this instance, included a release of any later claim that the patent is invalid. Apple evidently wanted that to be deleted from THEIR license.
I find it much less likely that Apple brought it up. Unless the standard license included a specific release, Apple would have been able to claim invalidity later. The only reason this could have become an issuer would be if Apple asked to deviate from the standard license terms.
IMO, without having much confidence in my conclusion, it seems to boil down to whether Apple's request for special terms was legit, or whether it amounted to a rejection of the offer made to them. If so, then IMO, Apple seems to be in the wrong here.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
If Motorola hadn't terminated the license agreements of chip makers based solely on the basis of them selling chips to Apple, then this whole mess would never have happened.
Motorola (and Samsung) are being anti-competitive by setting special terms for their existing licensees, outside the terms of FRAND.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Hence the rulings in France and why the EU should step in because the standards system is being made a mockery of in a highly abusive manner.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Do you think that Apple is some sort of gullible victim here?
Their license agreements with Sammy would have been comprehensive, as would their due diligence. Apple knew everything they needed to know before signing on the dotted line.
So I have to conclude that Apple was not a deluded fool, but instead, knew every word of every relevant document, and went into the deal with their eyes wide open.
If Motorola hadn't terminated the license agreements of chip makers based solely on the basis of them selling chips to Apple, then this whole mess would never have happened.
Motorola (and Samsung) are being anti-competitive by setting special terms for their existing licensees, outside the terms of FRAND.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Hence the rulings in France and why the EU should step in because the standards system is being made a mockery of in a highly abusive manner.
I don't know how the process actually works. Could it be that the responsibility for licensing and inclusion of the feature passes to the end-user? The chips may enable the possibility of using the patented tech, but the actual inclusion of it depends on the device itself. Thus the responsibility for paying for the licensed use may have been Apple's or Samsung's or HTC's if their devices offered it. I don't know.
Yes - I should have been clearer there. I went looking and was unable to find a standard of any kind for what comprises a FRAND-based agreement. Further, Mueller suggested that there was considerable "lack of specificity" in how past damages should be treated. That was the reason for my observation
Quote:
Originally Posted by ConradJoe
I think that it is fair to assume that the standard FRAND license, at least in this instance, included a release of any later claim that the patent is invalid. Apple evidently wanted that to be deleted from THEIR license.
I find it much less likely that Apple brought it up. Unless the standard license included a specific release, Apple would have been able to claim invalidity later. The only reason this could have become an issuer would be if Apple asked to deviate from the standard license terms.
That was my assumption too.
Quote:
Originally Posted by ConradJoe
IMO, without having much confidence in my conclusion, it seems to boil down to whether Apple's request for special terms was legit, or whether it amounted to a rejection of the offer made to them. If so, then IMO, Apple seems to be in the wrong here.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
I do see Motorola's point, and I think that they are correct to pursue it - primarily because I believe that all these companies have a duty to pursue all the legal remedies open to them to protect themselves. If the current situation seems somewhat ridiculous, it is because the system is flawed, not the corporate behavior.
Do you think that their prior and upcoming financial reports about "units shipped" and "units sold" should disclose this?
The German Market is the biggest in Europe. In fact, the injunction would apply to all of Europe. Do you think that Apple flooded all of Europe with product, so it will have enough to sell for months? Wow.
How does I think Apple flooded Germany equate to I think Apple flooded all of Europe? The injunction only applies to Germany. So called experts have been for weeks saying Apple might lose in Germany. Plenty of time to stuff the channel. Moreover, Apple has said as much. It publicly stated it doesn't think the injunction will effect it through the end of the year (in other words the earnings period). Apple just won the same issue against Samsung in France.
As far as what Apple should disclose goes, I am not an accountant. Apple should disclose what it is legally required to disclose. As far as a company goes often times units shipped and units sold mean the same thing. For instance, if a store buys 60 iPads from Apple that is both units sold and shipped. Perhaps you mean units sold to individuals. I am unsure how you could get an accurate number there.
I don't know how the process actually works. Could it be that the responsibility for licensing and inclusion of the feature passes to the end-user? The chips may enable the possibility of using the patented tech, but the actual inclusion of it depends on the device itself. Thus the responsibility for paying for the licensed use may have been Apple's or Samsung's or HTC's if their devices offered it. I don't know.
How it works.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
How does I think Apple flooded Germany equate to I think Apple flooded all of Europe? The injunction only applies to Germany.
That is the crux of it, yes.
"What's significant about the ruling is that it includes a "preliminarily enforceable" injunction against Apple Sales International, the company's wholesale subsidiary located in Ireland. Since the patent is wide-ranging, the courts can prevent Apple from selling all versions of the iPhone and the 3G versions of the iPad across large segments of Europe."
Info'Week could be incorrect. But if they are correct, this could be a big deal. A big enough deal, in fact, that if apple were warehousing months' worth of merchandise in all potentially affected areas, it would skew the numbers by a material amount.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
That completely ignores the fact that the patens are FRAND. If Motorola weren't trying to extort extra money out of Apple, the royalty rates for both the future and the past are already determined - Apple should pay the same as everyone else.
Quote:
Originally Posted by hill60
How it works.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
Yep. That alone will get Motorola in trouble with the EU.
Quote:
Originally Posted by AbsoluteDesignz
"Fair and non discriminatory"
Apple wanted something special. That is discriminatory.
Still waiting for you to prove that Apple would not agree to Motorola's terms. In fact, Mueller stated above that Apple had agreed to FRAND terms going forward but it was Motorola who wanted more than FRAND for the past.
Quote:
Originally Posted by Gatorguy
That would be correct according to reports. They attempted to modify the contract terms beyond what was offered to the other licensees. In effect Apple wanted Motorola to discriminate against the others. Moto declined, as the judge ruled they had the right to do. FRAND terms would not then extend to the period that Apple chose to use the patented tech without a license. Some here might refer to that as an example of IP theft, using someone else's inventions without permission.
Personally I would view "theft" as an extreme description, just as I would when used to describe some uses of tech by others that is determined at some later date to be infringing.
Yet it was Motorola who rejected FRAND terms for past violations, not Apple. See Mueller's statement.
That completely ignores the fact that the patens are FRAND. If Motorola weren't trying to extort extra money out of Apple, the royalty rates for both the future and the past are already determined - Apple should pay the same as everyone else.
Yep. That alone will get Motorola in trouble with the EU.
Still waiting for you to prove that Apple would not agree to Motorola's terms. In fact, Mueller stated above that Apple had agreed to FRAND terms going forward but it was Motorola who wanted more than FRAND for the past.
Yet it was Motorola who rejected FRAND terms for past violations, not Apple. See Mueller's statement.
Apparently your version is incorrect as the judge ruled differently.
Apparently your version is incorrect as the judge ruled differently.
That was a German regional court. The EU investigation is completely separate. The German court was simply applying existing German law. The EU may separately determine that Motorola Mobility's use of the law, when viewed in light of other actions, amounted to anti-competitive behavior.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
If that were true then how would you explain why Apple approached Motorola for a license to begin with? Going by your argument they never needed one anyway. Do you have any source indicating that Apple needed no license agreement?
Comments
I don't believe Google has ever sued any other competitor for patent infringement.
Damn. That is Evil.
Have I understood this correctly: If that is correct, then part of the problem seems to be that there is no standard definition of a FRAND agreement, so individual courts, anywhere, are free to interpret it how they see fit and according to local precedent, if such exists. I could argue this either way. It is clearly a technical loss for Apple. Maybe Motorola are using it as leverage to get Apple to withdraw their patent challenge, at which point they might accept FRAND rates retrospectively. In this jurisdiction, it looks as if Apple need to decide if they want to gamble on saving paying FRAND rates with a potential for a rather larger bill if they lose.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
I personally think Apple is sacrificing a pawn. It probably flooded the German market with product, so it will have enough to sell for months
Do you think that their prior and upcoming financial reports about "units shipped" and "units sold" should disclose this?
The German Market is the biggest in Europe. In fact, the injunction would apply to all of Europe. Do you think that Apple flooded all of Europe with product, so it will have enough to sell for months? Wow.
Why? Apple are a business. They are there to make money and most people have absolutely no problem with that.
If the patents aren't worth their value, then it'll be contested in court, if they are, they'll do an agreement. That's business.
"Business is business" was a phrase often heard in the hallways at Enron and W.R. Grace. But not Apple.
Have I understood this correctly:
I think that sums it up.
If that is correct, then part of the problem seems to be that there is no standard definition of a FRAND agreement, so individual courts, anywhere, are free to interpret it how they see fit and according to local precedent, if such exists.
Wait. That came out of nowhere.
I think that it is fair to assume that the standard FRAND license, at least in this instance, included a release of any later claim that the patent is invalid. Apple evidently wanted that to be deleted from THEIR license.
I find it much less likely that Apple brought it up. Unless the standard license included a specific release, Apple would have been able to claim invalidity later. The only reason this could have become an issuer would be if Apple asked to deviate from the standard license terms.
IMO, without having much confidence in my conclusion, it seems to boil down to whether Apple's request for special terms was legit, or whether it amounted to a rejection of the offer made to them. If so, then IMO, Apple seems to be in the wrong here.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
If Motorola hadn't terminated the license agreements of chip makers based solely on the basis of them selling chips to Apple, then this whole mess would never have happened.
Motorola (and Samsung) are being anti-competitive by setting special terms for their existing licensees, outside the terms of FRAND.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Hence the rulings in France and why the EU should step in because the standards system is being made a mockery of in a highly abusive manner.
"Business is business" was a phrase often heard in the hallways at Enron and W.R. Grace. But not Apple.
What are you on about? Apple are a business, it's there to make money for it's shareholders, and it does that. Patents are just a bit of the business.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Do you think that Apple is some sort of gullible victim here?
Their license agreements with Sammy would have been comprehensive, as would their due diligence. Apple knew everything they needed to know before signing on the dotted line.
So I have to conclude that Apple was not a deluded fool, but instead, knew every word of every relevant document, and went into the deal with their eyes wide open.
If Motorola hadn't terminated the license agreements of chip makers based solely on the basis of them selling chips to Apple, then this whole mess would never have happened.
Motorola (and Samsung) are being anti-competitive by setting special terms for their existing licensees, outside the terms of FRAND.
Terminating the licenses of companies that are willing and still pay the license fees for chips used by other manufacturers, leading to Apple becoming liable is a situation that Motorola (and Samsung) created.
Hence the rulings in France and why the EU should step in because the standards system is being made a mockery of in a highly abusive manner.
I don't know how the process actually works. Could it be that the responsibility for licensing and inclusion of the feature passes to the end-user? The chips may enable the possibility of using the patented tech, but the actual inclusion of it depends on the device itself. Thus the responsibility for paying for the licensed use may have been Apple's or Samsung's or HTC's if their devices offered it. I don't know.
Wait. That came out of nowhere.
Yes - I should have been clearer there. I went looking and was unable to find a standard of any kind for what comprises a FRAND-based agreement. Further, Mueller suggested that there was considerable "lack of specificity" in how past damages should be treated. That was the reason for my observation
I think that it is fair to assume that the standard FRAND license, at least in this instance, included a release of any later claim that the patent is invalid. Apple evidently wanted that to be deleted from THEIR license.
I find it much less likely that Apple brought it up. Unless the standard license included a specific release, Apple would have been able to claim invalidity later. The only reason this could have become an issuer would be if Apple asked to deviate from the standard license terms.
That was my assumption too.
IMO, without having much confidence in my conclusion, it seems to boil down to whether Apple's request for special terms was legit, or whether it amounted to a rejection of the offer made to them. If so, then IMO, Apple seems to be in the wrong here.
Agreed.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
I do see Motorola's point, and I think that they are correct to pursue it - primarily because I believe that all these companies have a duty to pursue all the legal remedies open to them to protect themselves. If the current situation seems somewhat ridiculous, it is because the system is flawed, not the corporate behavior.
Do you think that their prior and upcoming financial reports about "units shipped" and "units sold" should disclose this?
The German Market is the biggest in Europe. In fact, the injunction would apply to all of Europe. Do you think that Apple flooded all of Europe with product, so it will have enough to sell for months? Wow.
How does I think Apple flooded Germany equate to I think Apple flooded all of Europe? The injunction only applies to Germany. So called experts have been for weeks saying Apple might lose in Germany. Plenty of time to stuff the channel. Moreover, Apple has said as much. It publicly stated it doesn't think the injunction will effect it through the end of the year (in other words the earnings period). Apple just won the same issue against Samsung in France.
As far as what Apple should disclose goes, I am not an accountant. Apple should disclose what it is legally required to disclose. As far as a company goes often times units shipped and units sold mean the same thing. For instance, if a store buys 60 iPads from Apple that is both units sold and shipped. Perhaps you mean units sold to individuals. I am unsure how you could get an accurate number there.
I don't know how the process actually works. Could it be that the responsibility for licensing and inclusion of the feature passes to the end-user? The chips may enable the possibility of using the patented tech, but the actual inclusion of it depends on the device itself. Thus the responsibility for paying for the licensed use may have been Apple's or Samsung's or HTC's if their devices offered it. I don't know.
How it works.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
How does I think Apple flooded Germany equate to I think Apple flooded all of Europe? The injunction only applies to Germany.
That is the crux of it, yes.
"What's significant about the ruling is that it includes a "preliminarily enforceable" injunction against Apple Sales International, the company's wholesale subsidiary located in Ireland. Since the patent is wide-ranging, the courts can prevent Apple from selling all versions of the iPhone and the 3G versions of the iPad across large segments of Europe."
http://informationweek.com/news/mobi...ones/232300232
Info'Week could be incorrect. But if they are correct, this could be a big deal. A big enough deal, in fact, that if apple were warehousing months' worth of merchandise in all potentially affected areas, it would skew the numbers by a material amount.
To quote from Mr. Mueller (which doesn't necessarily make it factual but that's another matter):
"Motorola rejected Apple's offer, arguing that Apple can't expect to receive a FRAND license for the future as long as the parties haven't agreed on damages for past infringement (the period that started with Motorola's termination of certain agreements with baseband chipset vendors with respect to Apple and would end with the conclusion of a FRAND license agreement). Motorola says that no reasonable licensor would grant someone a license without resolving, at the same time, any disagreement over past infringement.
Motorola says that damages for past infringement must be agreed upon or else Apple won't be licensed going forward. Motorola claims those damages are not subject to FRAND since there would otherwise be an incentive for infringers: if they don't get sued, they get to use the patent for free, and if they do get sued, the maximum rate they pay is FRAND. Furthermore, Motorola doesn't want Apple to retain the right to challenge the validity of the licensed patents."
You should be able to see Motorola's point, which would apply to others in the position of dealing with (F)RAND licensing. Without there being a penalty, what incentive would there be for some larger companies with deep pockets to seek out licensing of IP? They could simply ignore it, as Apple seemingly tried to do, until forced to settle. . . if that even happens. Some would probably figure they wouldn't get caught and what's the worst that could happen if they did.
The German court understood the argument and agreed with it.
That completely ignores the fact that the patens are FRAND. If Motorola weren't trying to extort extra money out of Apple, the royalty rates for both the future and the past are already determined - Apple should pay the same as everyone else.
How it works.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
Yep. That alone will get Motorola in trouble with the EU.
"Fair and non discriminatory"
Apple wanted something special. That is discriminatory.
Still waiting for you to prove that Apple would not agree to Motorola's terms. In fact, Mueller stated above that Apple had agreed to FRAND terms going forward but it was Motorola who wanted more than FRAND for the past.
That would be correct according to reports. They attempted to modify the contract terms beyond what was offered to the other licensees. In effect Apple wanted Motorola to discriminate against the others. Moto declined, as the judge ruled they had the right to do. FRAND terms would not then extend to the period that Apple chose to use the patented tech without a license. Some here might refer to that as an example of IP theft, using someone else's inventions without permission.
Personally I would view "theft" as an extreme description, just as I would when used to describe some uses of tech by others that is determined at some later date to be infringing.
Yet it was Motorola who rejected FRAND terms for past violations, not Apple. See Mueller's statement.
That completely ignores the fact that the patens are FRAND. If Motorola weren't trying to extort extra money out of Apple, the royalty rates for both the future and the past are already determined - Apple should pay the same as everyone else.
Yep. That alone will get Motorola in trouble with the EU.
Still waiting for you to prove that Apple would not agree to Motorola's terms. In fact, Mueller stated above that Apple had agreed to FRAND terms going forward but it was Motorola who wanted more than FRAND for the past.
Yet it was Motorola who rejected FRAND terms for past violations, not Apple. See Mueller's statement.
Apparently your version is incorrect as the judge ruled differently.
Apparently your version is incorrect as the judge ruled differently.
That was a German regional court. The EU investigation is completely separate. The German court was simply applying existing German law. The EU may separately determine that Motorola Mobility's use of the law, when viewed in light of other actions, amounted to anti-competitive behavior.
How it works.
Company A buys a baseband chip from company B who pays the license fee under FRAND, the patent becomes 'exhausted', i.e. company A is covered by company B's license agreement so cannot be held liable for using the patent.
Samsung and Motirola have invalidated the licenses of the "company B's" when they sell chips to Apple.
This is clearly discriminatory, anti-competitive and against the principle of FRAND upon which standards are based.
If that were true then how would you explain why Apple approached Motorola for a license to begin with? Going by your argument they never needed one anyway. Do you have any source indicating that Apple needed no license agreement?