Obviously Apple was unwilling to accept those terms.
I think you're misreading the original post. It's Apple that is claiming that the 5 patents they are suing for would cost Samsung $40 per device. Obviously it was Samsung that was unwilling to accept thoses terms, but used the patents anyway.
I think you're misreading the original post. It's Apple that is claiming that the 5 patents they are suing for would cost Samsung $40 per device. Obviously it was Samsung that was unwilling to accept thoses terms, but used the patents anyway.
Samsung was never offered that.
A damages expert will argue on Apple's behalf that, if the parties had acted reasonably and rationally in a hypothetical negotiation, Samsung would have agreed to pay $40 -- forty dollars! -- per phone or tablet sold as a total royalty for the five patents-in-suit, which relate to (but don't even fully monopolize) the phone number tapping feature, unified search, data synchronization, slide-to-unlock, and autocomplete.
I know that. What I was questioning was how the original post cited that Mueller said that Apple was shooting itself in the foot by stating that their patents are worth such a high licensing fee, when they were also fighting a case against Samsung for the high fee they wanted for their SEP patents. But if the 5 patents Apple is suing for are not SEP, then what does it matter how much they ask for and how is it hurting Apple with their case against Samsung abusing their SEP patents?
I know that. What I was questioning was how the original post cited that Mueller said that Apple was shooting itself in the foot by stating that their patents are worth such a high licensing fee, when they were also fighting a case against Samsung for the high fee they wanted for their SEP patents. But if the 5 patents Apple is suing for are not SEP, then what does it matter how much they ask for and how is it hurting Apple with their case against Samsung abusing their SEP patents?
Did you look at his blog for his reasoning? Doesn't mean his opinion should be everyone's, but he does try to explain how regulators might look at it.
I know that. What I was questioning was how the original post cited that Mueller said that Apple was shooting itself in the foot by stating that their patents are worth such a high licensing fee, when they were also fighting a case against Samsung for the high fee they wanted for their SEP patents. But if the 5 patents Apple is suing for are not SEP, then what does it matter how much they ask for and how is it hurting Apple with their case against Samsung abusing their SEP patents?
Don't waste your time. They both understand EXACTLY what you meant, as did I and everyone else. As usual they're trying muddy the waters.
Don't waste your time. They both understand EXACTLY what you meant, as did I and everyone else. As usual they're trying muddy the waters.
No sir, then that would be Mr. Mueller trying to muddy the waters if that's the case.
"I face the first situation in which I don't merely disagree with Apple but am rather wondering whether it has lost its mind... $40 per unit. For five software patents. Give me a break. Reality distortion would be a total understatement for this.
I have repeatedly criticized, and won't ever support, Samsung's 2.4%-of-total-device-sales royalty demand for its portfolio of wireless standard-essential patents (SEPs)...
But 2.25% or 2.4% of the price of a $500 iPhone would be $12 per unit -- less than third of what Apple wants for five software patents, and Samsung and Motorola hold a far greater number of wireless SEPs.
I still believe that SEP and non-SEP issues must not be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fair and reasonable"), the question of double standards is legitimate... few people would probably think that patents relating to things like autocomplete are inherently more valuable than wireless SEPs.
If patents are not encumbered by a FRAND licensing pledge, a patentee can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount at the end of a hypothetical, perfectly rational negotiation. And that theory undermines Apple's FRAND arguments big time, at least psychologically, because Samsung and Motorola would also argue that Apple would have paid them $12 per phone at the end of a reasonably-led negotiation. Antitrust authorities have probably been aware of Apple's non-SEP royalty theories for a while. I still hope regulators will give meaning to FRAND, but it's only human if some decision-makers note a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals.
Apple's royalty-type damages claim for five software patents is also far out of the ballpark of anything that has ever been claimed or rumored to be paid in this industry for entire portfolios. "
I should note that I personally have a lot of issues with some of his stands. AI and many of its members not so much.
FOSSPatents posts that Apple claims Samsung would have agreed to pay $40 per device in royalties for those 5 patents if they had negotiated a standard business license and the simply passed that on to consumers. In a rare turn Mueller also says Apple may have lost their mind. It doesn't help their SEP royalty discussions with regulators either by his reasoning.
So far, it's not the regulators that Apple has to be concern about, it's the judges.
Quote:
Originally Posted by Gatorguy
No sir, then that would be Mr. Mueller trying to muddy the waters if that's the case.
"I face the first situation in which I don't merely disagree with Apple but am rather wondering whether it has lost its mind... $40 per unit. For five software patents. Give me a break. Reality distortion would be a total understatement for this.
I have repeatedly criticized, and won't ever support, Samsung's 2.4%-of-total-device-sales royalty demand for its portfolio of wireless standard-essential patents (SEPs)...
But 2.25% or 2.4% of the price of a $500 iPhone would be $12 per unit -- less than third of what Apple wants for five software patents, and Samsung and Motorola hold a far greater number of wireless SEPs.
I still believe that SEP and non-SEP issues must not be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fair and reasonable"), the question of double standards is legitimate... few people would probably think that patents relating to things like autocomplete are inherently more valuable than wireless SEPs.
If patents are not encumbered by a FRAND licensing pledge, a patentee can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount at the end of a hypothetical, perfectly rational negotiation. And that theory undermines Apple's FRAND arguments big time, at least psychologically, because Samsung and Motorola would also argue that Apple would have paid them $12 per phone at the end of a reasonably-led negotiation. Antitrust authorities have probably been aware of Apple's non-SEP royalty theories for a while. I still hope regulators will give meaning to FRAND, but it's only human if some decision-makers note a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals.
Apple's royalty-type damages claim for five software patents is also far out of the ballpark of anything that has ever been claimed or rumored to be paid in this industry for entire portfolios. "
I should note that I personally have a lot of issues with some of his stands. AI and many of it's members not so much.
Well, it doesn't matter what Mueller thinks. Obviously, Samsung didn't think this was going to help their case, otherwise they wouldn't have dropped the SEP patents from their suit against Apple.
How can you appeal a final judgment? It's not a final judgment if it can be appealed. It's no wonder we're in the shape we're in.
And why do they call it a judgement when it was decided by a jury? Its not a judgement if the judge didn't decide. It's no wonder we're in the shape we're in.
And why do they call it a judgement when it was decided by a jury? Its not a judgement if the judge didn't decide. It's no wonder we're in the shape we're in.
Judgement is the evaluation of evidence to make a decision. That task was given to a jury. The judge in this case only presided over the proceedings.
I was kinda of looking forward forward to the SEP and FRAND counterclaims to be argued in court. That stuff needs to get settled once and for all. The Moto/MS was a good start.
Of course Samsung withdrew the SEPs, like they did in the EU. It would be silly for them to argue that something they claimed was good for European consumers should be different for American consumers. Samsung kinda shot themselves in the foot when they made those comments when trying to avoid further EU investigations or possible fines.
"There's nothing in the stipulation that indicates why Samsung made this decision, but whatever the reason(s) may be, it's a good thing in my view. Samsung has already prevailed over Apple on SEPs in different jurisdictions(including at the ITC last year, though an import ban was ultimately vetoed). It makes sense for Samsung to focus on non-SEPs at the upcoming trial, and especially on its proven defensive strength."
Further, in the EU, Samsung has only offered not to seek injunctive relief for 5 years and extend the negotiation period to 1 year. This is far from abandoning SEP based legal strategy altogether.
"There's nothing in the stipulation that indicates why Samsung made this decision, but whatever the reason(s) may be, it's a good thing in my view. Samsung has already prevailed over Apple on SEPs in different jurisdictions(including at the ITC last year, though an import ban was ultimately vetoed). It makes sense for Samsung to focus on non-SEPs at the upcoming trial, and especially on its proven defensive strength."
Further, in the EU, Samsung has only offered not to seek injunctive relief for 5 years and extend the negotiation period to 1 year. This is far from abandoning SEP based legal strategy altogether.
Samsung has won a few SEP decisions (as they should have). Apple is using Samsung IP in certain devices. Apple has never claimed they don't use any Samsung SEP's - they have only argued against the amount Samsung is seeking.
And while Samsung has a few victories under their belt, they are all very minor. I don't think Apple has paid out more than a couple million (as in single digit millions) for ALL of the Samsung SEP victories combined. I most case the legal bills would have been higher than the actual penalty. And the injunctions that were handed out are no longer relevant as devices aren't sold anymore. Samsung has done NOTHING to hamper Apple in any way whatsoever.
And in the US where the ITC ruled in their favor, Samsung has again struck out. Now they're forced to do the one thing they never wanted to - ask a judge to decide the rate for their SEP's. They have lost the bargaining power that an injunction would have given them. And just like Motorola suffered a catastrophic loss to Microsoft, I'm betting we're going to see just how little Samsung gets for their SEP's as well. Plus we'll get to find out what Samsung was really asking vs what they get - and find out if Samsung was being "reasonable".
As for Samsung and the EU, I doubt the EU will agree to Samsung's suggestion of 5 years without seeking injunctions. That's like saying "we'll behave for 5 years, and after that we'll go back to doing what got us into trouble in the first place". That's hardly a concession. Samsung doesn't get to decide their punishment.
Samsung has won a few SEP decisions (as they should have). Apple is using Samsung IP in certain devices. Apple has never claimed they don't use any Samsung SEP's - they have only argued against the amount Samsung is seeking.
And while Samsung has a few victories under their belt, they are all very minor. I don't think Apple has paid out more than a couple million (as in single digit millions) for ALL of the Samsung SEP victories combined. I most case the legal bills would have been higher than the actual penalty. And the injunctions that were handed out are no longer relevant as devices aren't sold anymore. Samsung has done NOTHING to hamper Apple in any way whatsoever.
And in the US where the ITC ruled in their favor, Samsung has again struck out. Now they're forced to do the one thing they never wanted to - ask a judge to decide the rate for their SEP's. They have lost the bargaining power that an injunction would have given them. And just like Motorola suffered a catastrophic loss to Microsoft, I'm betting we're going to see just how little Samsung gets for their SEP's as well. Plus we'll get to find out what Samsung was really asking vs what they get - and find out if Samsung was being "reasonable".
As for Samsung and the EU, I doubt the EU will agree to Samsung's suggestion of 5 years without seeking injunctions. That's like saying "we'll behave for 5 years, and after that we'll go back to doing what got us into trouble in the first place". That's hardly a concession. Samsung doesn't get to decide their punishment.
Bloomberg posted up an article not long after Almunia/s early December comment that Samsung might have to do a little better on concessions. According to them only minor changes will be needed to get the EU chief to sign off. I wouldn't expect much longer before the EU commission officially makes a recommendation one way or another. It's been on-going for quite awhile. http://www.bloomberg.com/news/2013-12-11/samsung-said-to-near-eu-antitrust-settlement-amid-apple-clash.html
Forgot to add. I agree with the outcome in the first case with the exception of the wilful infringement part. I don't agree with Koh when Samsung said they didn't think the patents were valid and so weren't infringing wilfully. Seems to me anyone can use this "excuse" in the future and this sets a dangerous precedent.
It's pretty common for companies to try and dodge willful infringement claims using the argument that they did not believe the asserted IP was valid in the first place. Sometimes it works, as in this case, while other times it does not as happened just a few days ago with VirnetX and Apple. Remember that $368M royalty/damages judgement against Apple? It just went up. . . by a lot. http://patentlyo.com/patent/2014/03/ongoing-against-willfulness.html
No sir, then that would be Mr. Mueller trying to muddy the waters if that's the case.
"I face the first situation in which I don't merely disagree with Apple but am rather wondering whether it has lost its mind... $40 per unit. For five software patents. Give me a break. Reality distortion would be a total understatement for this.
I have repeatedly criticized, and won't ever support, Samsung's 2.4%-of-total-device-sales royalty demand for its portfolio of wireless standard-essential patents (SEPs)...
But 2.25% or 2.4% of the price of a $500 iPhone would be $12 per unit -- less than third of what Apple wants for five software patents, and Samsung and Motorola hold a far greater number of wireless SEPs.
I still believe that SEP and non-SEP issues must not be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fair and reasonable"), the question of double standards is legitimate... few people would probably think that patents relating to things like autocomplete are inherently more valuable than wireless SEPs.
If patents are not encumbered by a FRAND licensing pledge, a patentee can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount at the end of a hypothetical, perfectly rational negotiation. And that theory undermines Apple's FRAND arguments big time, at least psychologically, because Samsung and Motorola would also argue that Apple would have paid them $12 per phone at the end of a reasonably-led negotiation. Antitrust authorities have probably been aware of Apple's non-SEP royalty theories for a while. I still hope regulators will give meaning to FRAND, but it's only human if some decision-makers note a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals
Apple's royalty-type damages claim for five software patents is also far out of the ballpark of anything that has ever been claimed or rumored to be paid in this industry for entire portfolios. "
I should note that I personally have a lot of issues with some of his stands. AI and many of it's members not so much.
A non SEP patent for a feature that every phone maker wants to have in their phones is way more valuable than any SEP patent that every phone maker has to have in their phones. SEP patents doesn't make one phone any different from the next. Which is the whole point of having SEP patents. It's the non SEP patents for features that is unique and desirable in a phone that is valuable. It can make the difference between consumers buying one phone over another and paying more for it. So requesting licensing fee that is 10x, 20x or even 100x more than a SEP patent is not out of the question when the use of the non SEP patent may result in multiple X increase in sales at a higher price. Mueller got it wrong this time. (Not to imply that he's always been right)
edit: had to corrected all the SAP to SEP. Didn't notice iPad auto correct on me.
Comments
Obviously Apple was unwilling to accept those terms.
It's the final decision of that court, but there are higher courts one can appeal to.
Obviously Apple was unwilling to accept those terms.
I think you're misreading the original post. It's Apple that is claiming that the 5 patents they are suing for would cost Samsung $40 per device. Obviously it was Samsung that was unwilling to accept thoses terms, but used the patents anyway.
Samsung was never offered that.
Samsung was never offered that.
I know that. What I was questioning was how the original post cited that Mueller said that Apple was shooting itself in the foot by stating that their patents are worth such a high licensing fee, when they were also fighting a case against Samsung for the high fee they wanted for their SEP patents. But if the 5 patents Apple is suing for are not SEP, then what does it matter how much they ask for and how is it hurting Apple with their case against Samsung abusing their SEP patents?
Did you look at his blog for his reasoning? Doesn't mean his opinion should be everyone's, but he does try to explain how regulators might look at it.
No sir, then that would be Mr. Mueller trying to muddy the waters if that's the case.
"I face the first situation in which I don't merely disagree with Apple but am rather wondering whether it has lost its mind... $40 per unit. For five software patents. Give me a break. Reality distortion would be a total understatement for this.
I have repeatedly criticized, and won't ever support, Samsung's 2.4%-of-total-device-sales royalty demand for its portfolio of wireless standard-essential patents (SEPs)...
But 2.25% or 2.4% of the price of a $500 iPhone would be $12 per unit -- less than third of what Apple wants for five software patents, and Samsung and Motorola hold a far greater number of wireless SEPs.
I still believe that SEP and non-SEP issues must not be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fair and reasonable"), the question of double standards is legitimate... few people would probably think that patents relating to things like autocomplete are inherently more valuable than wireless SEPs.
If patents are not encumbered by a FRAND licensing pledge, a patentee can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount at the end of a hypothetical, perfectly rational negotiation. And that theory undermines Apple's FRAND arguments big time, at least psychologically, because Samsung and Motorola would also argue that Apple would have paid them $12 per phone at the end of a reasonably-led negotiation. Antitrust authorities have probably been aware of Apple's non-SEP royalty theories for a while. I still hope regulators will give meaning to FRAND, but it's only human if some decision-makers note a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals.
Apple's royalty-type damages claim for five software patents is also far out of the ballpark of anything that has ever been claimed or rumored to be paid in this industry for entire portfolios. "
I should note that I personally have a lot of issues with some of his stands. AI and many of its members not so much.
That is a wholly inaccurate statement. There is no requirement that a patent be licensed if it is not a SEP.
Nowhere did I say that there was a requirement to do so.
FOSSPatents posts that Apple claims Samsung would have agreed to pay $40 per device in royalties for those 5 patents if they had negotiated a standard business license and the simply passed that on to consumers. In a rare turn Mueller also says Apple may have lost their mind. It doesn't help their SEP royalty discussions with regulators either by his reasoning.
EDIT: missed link
http://www.fosspatents.com/2014/03/at-upcoming-trial-apple-wants-samsung.html
So far, it's not the regulators that Apple has to be concern about, it's the judges.
No sir, then that would be Mr. Mueller trying to muddy the waters if that's the case.
"I face the first situation in which I don't merely disagree with Apple but am rather wondering whether it has lost its mind... $40 per unit. For five software patents. Give me a break. Reality distortion would be a total understatement for this.
I have repeatedly criticized, and won't ever support, Samsung's 2.4%-of-total-device-sales royalty demand for its portfolio of wireless standard-essential patents (SEPs)...
But 2.25% or 2.4% of the price of a $500 iPhone would be $12 per unit -- less than third of what Apple wants for five software patents, and Samsung and Motorola hold a far greater number of wireless SEPs.
I still believe that SEP and non-SEP issues must not be mixed up in connection with injunctive relief. But when it comes to the FR part of FRAND ("fair and reasonable"), the question of double standards is legitimate... few people would probably think that patents relating to things like autocomplete are inherently more valuable than wireless SEPs.
If patents are not encumbered by a FRAND licensing pledge, a patentee can ask for anything, but here we have a situation where Apple's damages expert argues that Samsung would actually have paid the amount at the end of a hypothetical, perfectly rational negotiation. And that theory undermines Apple's FRAND arguments big time, at least psychologically, because Samsung and Motorola would also argue that Apple would have paid them $12 per phone at the end of a reasonably-led negotiation. Antitrust authorities have probably been aware of Apple's non-SEP royalty theories for a while. I still hope regulators will give meaning to FRAND, but it's only human if some decision-makers note a major discrepancy between Apple's positions on reasonable royalties and if this makes them less inclined to impose drastic sanctions on Apple's rivals.
Apple's royalty-type damages claim for five software patents is also far out of the ballpark of anything that has ever been claimed or rumored to be paid in this industry for entire portfolios. "
I should note that I personally have a lot of issues with some of his stands. AI and many of it's members not so much.
Well, it doesn't matter what Mueller thinks. Obviously, Samsung didn't think this was going to help their case, otherwise they wouldn't have dropped the SEP patents from their suit against Apple.
Hold that thought.
How can you appeal a final judgment? It's not a final judgment if it can be appealed. It's no wonder we're in the shape we're in.
And why do they call it a judgement when it was decided by a jury? Its not a judgement if the judge didn't decide. It's no wonder we're in the shape we're in.
Judgement is the evaluation of evidence to make a decision. That task was given to a jury. The judge in this case only presided over the proceedings.
Eric,
I was kinda of looking forward forward to the SEP and FRAND counterclaims to be argued in court. That stuff needs to get settled once and for all. The Moto/MS was a good start.
Of course Samsung withdrew the SEPs, like they did in the EU. It would be silly for them to argue that something they claimed was good for European consumers should be different for American consumers. Samsung kinda shot themselves in the foot when they made those comments when trying to avoid further EU investigations or possible fines.
@Spacepower: No, go back and read Mueller's blog:
"There's nothing in the stipulation that indicates why Samsung made this decision, but whatever the reason(s) may be, it's a good thing in my view. Samsung has already prevailed over Apple on SEPs in different jurisdictions (including at the ITC last year, though an import ban was ultimately vetoed). It makes sense for Samsung to focus on non-SEPs at the upcoming trial, and especially on its proven defensive strength."
Further, in the EU, Samsung has only offered not to seek injunctive relief for 5 years and extend the negotiation period to 1 year. This is far from abandoning SEP based legal strategy altogether.
@Spacepower: No, go back and read Mueller's blog:
"There's nothing in the stipulation that indicates why Samsung made this decision, but whatever the reason(s) may be, it's a good thing in my view. Samsung has already prevailed over Apple on SEPs in different jurisdictions (including at the ITC last year, though an import ban was ultimately vetoed). It makes sense for Samsung to focus on non-SEPs at the upcoming trial, and especially on its proven defensive strength."
Further, in the EU, Samsung has only offered not to seek injunctive relief for 5 years and extend the negotiation period to 1 year. This is far from abandoning SEP based legal strategy altogether.
Samsung has won a few SEP decisions (as they should have). Apple is using Samsung IP in certain devices. Apple has never claimed they don't use any Samsung SEP's - they have only argued against the amount Samsung is seeking.
And while Samsung has a few victories under their belt, they are all very minor. I don't think Apple has paid out more than a couple million (as in single digit millions) for ALL of the Samsung SEP victories combined. I most case the legal bills would have been higher than the actual penalty. And the injunctions that were handed out are no longer relevant as devices aren't sold anymore. Samsung has done NOTHING to hamper Apple in any way whatsoever.
And in the US where the ITC ruled in their favor, Samsung has again struck out. Now they're forced to do the one thing they never wanted to - ask a judge to decide the rate for their SEP's. They have lost the bargaining power that an injunction would have given them. And just like Motorola suffered a catastrophic loss to Microsoft, I'm betting we're going to see just how little Samsung gets for their SEP's as well. Plus we'll get to find out what Samsung was really asking vs what they get - and find out if Samsung was being "reasonable".
As for Samsung and the EU, I doubt the EU will agree to Samsung's suggestion of 5 years without seeking injunctions. That's like saying "we'll behave for 5 years, and after that we'll go back to doing what got us into trouble in the first place". That's hardly a concession. Samsung doesn't get to decide their punishment.
Bloomberg posted up an article not long after Almunia/s early December comment that Samsung might have to do a little better on concessions. According to them only minor changes will be needed to get the EU chief to sign off. I wouldn't expect much longer before the EU commission officially makes a recommendation one way or another. It's been on-going for quite awhile.
http://www.bloomberg.com/news/2013-12-11/samsung-said-to-near-eu-antitrust-settlement-amid-apple-clash.html
It's pretty common for companies to try and dodge willful infringement claims using the argument that they did not believe the asserted IP was valid in the first place. Sometimes it works, as in this case, while other times it does not as happened just a few days ago with VirnetX and Apple. Remember that $368M royalty/damages judgement against Apple? It just went up. . . by a lot.
http://patentlyo.com/patent/2014/03/ongoing-against-willfulness.html
A non SEP patent for a feature that every phone maker wants to have in their phones is way more valuable than any SEP patent that every phone maker has to have in their phones. SEP patents doesn't make one phone any different from the next. Which is the whole point of having SEP patents. It's the non SEP patents for features that is unique and desirable in a phone that is valuable. It can make the difference between consumers buying one phone over another and paying more for it. So requesting licensing fee that is 10x, 20x or even 100x more than a SEP patent is not out of the question when the use of the non SEP patent may result in multiple X increase in sales at a higher price. Mueller got it wrong this time. (Not to imply that he's always been right)
edit: had to corrected all the SAP to SEP. Didn't notice iPad auto correct on me.
Wow.. If you call $1billion in damages not enforceable
???
You call it a judgement.
It's only enforceable when it is actually enforced.
?Pretty sure the point is, when is Apple going to collect anything?