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."
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"!
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.
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.
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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.
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?
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?
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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.
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?
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.
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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:
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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.
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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.
Comments
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."
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"!
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.
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.
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?
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?
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.
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.
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.
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?
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.
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:
Samsung responded by dropping all their EU litigation against Apple over SEPs.
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.
Well of course you do. :rolleyes: