What remedies are available with the ITC? I'm assuming that they can award damages, and not just issue injunctions.
The ITC really is a very blunt instrument. Their only remedy in cases like this is to impose blanket injunctions against all imports of a foreign-manufactured product into the United States. All other remedies are off the table.
FRAND is very specific as to what is fair and reasonable. The terms are all applied. Non-descriminatory means that all companies wanting to use a specific tech under a FRAND patent are offered the same terms. It also means that a company wanting to use a FRAND patent does NOT have to offer up it's own IP to do so.
Each of the terms by itself is largely useless, but when taken together as a unit, they are clear as to what is fair, reasonable, and non-discriminatory. For example, if Motorola is wanting to require cross-licensing as a term of agreement for a FRAND patent, that would violate the FAIR clause under FRAND.
Fair relates mainly to the underlying licensing terms. Drawing from anti-trust/competition law; fair terms means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market. Examples of terms that would breach this commitment are; requiring licensees to buy licenses for products that they do not want in order to get a license for the products they do want (bundling), requiring licensees to license their own IP to the licensor for free (free grant backs) and including restrictive conditions on licensees’ dealings with competitors (mandatory exclusivity).
Reasonable refers mainly to the licensing rates. According to some, a reasonable licensing rate is a rate charged on licenses which would not result in an unreasonable aggregate rate if all licensees were charged a similar rate. According to this view, aggregate rates that would significantly increase the cost to the industry and make the industry uncompetitive are unreasonable. It is worth noting that a licensor which has several different licensing packages might be tempted to have both reasonable and unreasonable packages. However having a reasonable “bundled” rate does not excuse having unreasonable licensing rates for smaller unbundled packages. All licensing rates must be reasonable.
Non-discriminatory relates to both the terms and the rates included in licensing agreements. As the name suggests this commitment requires that licensors treat each individual licensee in a similar manner. This does not mean that the rates and payment terms can’t change dependent on the volume and creditworthiness of the licensee. However it does mean that the underlying licensing condition included in a licensing agreement must be the same regardless of the licensee. This obligation is included in order to maintain a level playing field with respect to existing competitors and to ensure that potential new entrants are free to enter the market on the same basis.
The definition of FRAND is not as universally agreed upon as Wikipedia would like to suggest. Heck, current practice in the USA generally doesn't even include the "F" part of ""FRAND".
For another thing, each individual standards-setting organization sets its own patent disclosure and mandatory or optional licensing policy for its members which contribute essential patents to a standard. For example, a patent disclosure and licensing offer which might be acceptable to ISO, may go against the rules separately specified by ESTI, or again by ATIS.
In fact, some standards organizations' patent licensing policies specifically include options allowing members contributing patents to a standard, to use retaliatory tactics against, or offer deliberately less attractive licensing terms to, any fellow members who refuse to enter into collateral cross-licensing agreements.
The Judge in this case has now also ordered sanctions against Apple and it's counsel for misrepresentation of facts (lying to the court).
According to a quote from the judge:
"Hence, I find Respondent (Apple), without sufficient credible reason or excuse, misrepresented the facts and its intentions to Complainant (Motorola) and me and therefore caused additional confusion, expenditures, delay and increased the potential for injustice."
The judge said Apple had lied at the hearing and in its court filings and was directly contradicted by Apple's own expert witness, Dr. Brian Noble.
“At the outset, it is important to understand that it was obvious, based upon the sworn testimony of Dr. Brian Noble, that matters had been represented to me that were not true,” the judge said.
The judge has ordered that Apple pay Motorola for it's additional legal expenses caused by the misrepresentation.
<p> <span style="font-size: medium"><span style="font-family: timespp">The real issue here is that of 18 patent accusations, one was upheld.</span></span></p><p> </p><p> <span style="font-size: medium"><span style="font-family: timespp">In the oracle v’s google case, 70% of oracles patents were declared invalid when re-examined by the patent office.</span></span></p><p> </p><p> <span style="font-size: medium"><span style="font-family: timespp">The patent system is an absolute joke. Significant reform is needed to eliminate all these junk patents and patent accusations that can not be enforced in court. Companies should have a limited time to get a working model into production or their patent will be invalidated.</span></span></p><p> </p><p> <span style="font-size: medium"><span style="font-family: timespp">It will take two decades, but then we should be at a place where only true innovation gets a patent, wording is clear, and a judgement can be rendered quickly. An automatic part of any patent case should be the right of a judge to penalise a company if it makes unreasonable patent violation claims against another.</span></span></p><p> </p><p> <span style="font-size: medium"><span style="font-family: timespp">This should also eliminate a lot of patent trolls.</span></span></p>
Judge Thomas Pender is going to use the old Cheech and Chong dog poo skit to judge whether an iPhone design patent is being used by Samsung.
"“Does it look like it, feel like it, smell like it?” U.S. International Trade Commission Judge Thomas Pender said at the beginning of Apple’s patent-infringement trial against Samsung, referring to a routine in which the comedy duo identified dog feces."
Comments
Quote:
Originally Posted by I am a Zither Zather Zuzz
What remedies are available with the ITC? I'm assuming that they can award damages, and not just issue injunctions.
The ITC really is a very blunt instrument. Their only remedy in cases like this is to impose blanket injunctions against all imports of a foreign-manufactured product into the United States. All other remedies are off the table.
Quote:
Originally Posted by DJRumpy
FRAND is very specific as to what is fair and reasonable. The terms are all applied. Non-descriminatory means that all companies wanting to use a specific tech under a FRAND patent are offered the same terms. It also means that a company wanting to use a FRAND patent does NOT have to offer up it's own IP to do so.
http://en.wikipedia.org/wiki/Reasonable_and_non-discriminatory_licensing
Each of the terms by itself is largely useless, but when taken together as a unit, they are clear as to what is fair, reasonable, and non-discriminatory. For example, if Motorola is wanting to require cross-licensing as a term of agreement for a FRAND patent, that would violate the FAIR clause under FRAND.
Fair relates mainly to the underlying licensing terms. Drawing from anti-trust/competition law; fair terms means terms which are not anti-competitive and that would not be considered unlawful if imposed by a dominant firm in their relative market. Examples of terms that would breach this commitment are; requiring licensees to buy licenses for products that they do not want in order to get a license for the products they do want (bundling), requiring licensees to license their own IP to the licensor for free (free grant backs) and including restrictive conditions on licensees’ dealings with competitors (mandatory exclusivity).
Reasonable refers mainly to the licensing rates. According to some, a reasonable licensing rate is a rate charged on licenses which would not result in an unreasonable aggregate rate if all licensees were charged a similar rate. According to this view, aggregate rates that would significantly increase the cost to the industry and make the industry uncompetitive are unreasonable. It is worth noting that a licensor which has several different licensing packages might be tempted to have both reasonable and unreasonable packages. However having a reasonable “bundled” rate does not excuse having unreasonable licensing rates for smaller unbundled packages. All licensing rates must be reasonable.
Non-discriminatory relates to both the terms and the rates included in licensing agreements. As the name suggests this commitment requires that licensors treat each individual licensee in a similar manner. This does not mean that the rates and payment terms can’t change dependent on the volume and creditworthiness of the licensee. However it does mean that the underlying licensing condition included in a licensing agreement must be the same regardless of the licensee. This obligation is included in order to maintain a level playing field with respect to existing competitors and to ensure that potential new entrants are free to enter the market on the same basis.
The definition of FRAND is not as universally agreed upon as Wikipedia would like to suggest. Heck, current practice in the USA generally doesn't even include the "F" part of ""FRAND".
For another thing, each individual standards-setting organization sets its own patent disclosure and mandatory or optional licensing policy for its members which contribute essential patents to a standard. For example, a patent disclosure and licensing offer which might be acceptable to ISO, may go against the rules separately specified by ESTI, or again by ATIS.
In fact, some standards organizations' patent licensing policies specifically include options allowing members contributing patents to a standard, to use retaliatory tactics against, or offer deliberately less attractive licensing terms to, any fellow members who refuse to enter into collateral cross-licensing agreements.
Some other selected reading:
http://www.ipeg.com/_UPLOAD BLOG/Cook_Standards_FRAND or FOE_article.pdf
http://www.google.ca/url?sa=t&rct=j&q=FRAND+same+price&source=web&cd=3&ved=0CEIQFjAC&url=ftp://ftp.cemfi.es/wp/07/0702.pdf&ei=S-CXT7W9A8jDgAeOz-32Bg&usg=AFQjCNHxC2EPAajyj_TBzMGgPBa0uqpbVw&cad=rja
Quote:
Originally Posted by EWTHeckman
According to FOSS Patents, it is a FRAND patent.
Then this really isn't any big deal for Apple.
It will, however, create more antitrust issues for Motoroogle.
The Judge in this case has now also ordered sanctions against Apple and it's counsel for misrepresentation of facts (lying to the court).
According to a quote from the judge:
"Hence, I find Respondent (Apple), without sufficient credible reason or excuse, misrepresented the facts and its intentions to Complainant (Motorola) and me and therefore caused additional confusion, expenditures, delay and increased the potential for injustice."
The judge said Apple had lied at the hearing and in its court filings and was directly contradicted by Apple's own expert witness, Dr. Brian Noble.
“At the outset, it is important to understand that it was obvious, based upon the sworn testimony of Dr. Brian Noble, that matters had been represented to me that were not true,” the judge said.
The judge has ordered that Apple pay Motorola for it's additional legal expenses caused by the misrepresentation.
I found this to be too funny...
Judge Thomas Pender is going to use the old Cheech and Chong dog poo skit to judge whether an iPhone design patent is being used by Samsung.
"“Does it look like it, feel like it, smell like it?” U.S. International Trade Commission Judge Thomas Pender said at the beginning of Apple’s patent-infringement trial against Samsung, referring to a routine in which the comedy duo identified dog feces."