@ruddy: Sure, but neither left or right cases you cited support your claim. In the former, Judge Posner states:
To begin with Motorola's injunctive claim, I don't see how, given FRAND, I would be justified in enjoining Apple from infringing the '898 unless Apple refuses to pay a royalty that meets the FRAND requirement.
Posner quite clearly supports my position that injunctions for SEPs aren't appropriate except in the hypothetical case where the infringer has refused to pay a royalty that meets the FRAND requirement. That doesn't ever happen, at least no one has ever been able to cite an example of it. This condition/exception is a hypothetical one.
Quote:
In the USITC case involving Samsung and Apple, however, the Commission found that Apple not only infringed, but also refused to pay (ITC Opinion p. 63):
Decisions of first instance are often incorrect, that's why we have an appeals process. Apple would have had the opportunity to appeal this decision to both the ITC and, failing that, to the CAFC. As it was they didn't need to since another authority higher than the ITC reversed the decision–the President. The fact is the ITC's decision was overruled, and all the reasoning that went into it is no longer relevant except to those in denial of the final judgment. Perhaps you imagine someone else will overrule the President's decision concerning an executive branch agency?
Perhaps you can't imagine that without a determination of "what a FRAND rate is" in this case the ITC can not reasonably determine whether Apple refused a FRAND rate.
Maybe you will cite where District Court Judge Koh appoved of the injunctions Samsung was seeking for its SEPs that Apple was found to have infringed? No? Didn't think so.
Quote:
In the latter case ("preliminary injunction against USITC injunction"), neither Realtek (plaintiff), Agere/LSI (defendant), or Judge Whyte questions whether an injunction is an appropriate remedy for Realtek's SEP violation. As Judge Whyte's decision states, the decision isn't about that at all:
For all the nits you pick, the fact remains that except possibly in Germany no one is getting injunctions for SEPs anymore (and even now it looks like German lower courts will be referring SEP cases to the CJEU now they've realized they are the European outlier when it comes to SEPs). Injunctions for SEPs are being denied around the world. Despite the hypothetical exceptions where an injunction might be allowed, seeking injunctions for SEPs is now considered abusive behavior, and is becoming, or has become already, a thing of he past. But go ahead and cite some recent examples to prove me wrong.
BTW, did you read the article? Or even the title of the article?
Antitrust regulators have a habit of making a lot of noise and then backing off when it comes to actual remedies and punishments. It's their m.o. They are the mouthpieces. Same as it ever was. Meaningful change first occurs in the courts, which is happening as we speak in the District Courts and soon the appeals courts. Legislators will get their say eventually, and the language in the contracts of the standards bodies will also be reflecting the new reality.
Quote:
BTW, have you considered whether "They bluster away and shout down their opponents hoping that no one will challenge" could apply to some of your own posts?
I have strong opinions but I welcome challenge and always look forward to a worthy opponent on topics I've looked into beyond the soundbyte and superficial analysis. I don't have much respect for opinions that only ad hom opponents in an effort to either silence or avoid the substance of an argument. I have only contempt for those who make up their own information.
It's no surprise to me that on any internet forum there are plenty who can't read the writing on the wall about SEP abuse.
It's no surprise to me that on any internet forum there are plenty who can't read the writing on the wall about SEP abuse.
I'm not aware of anyone here in denial about which way the wind is blowing. There's absolutely a push for clarity and direction and everyone understands that. You're shifting to a false argument if that's where you're going now.
Where you got challenged was on the absolute statements you were making, implying that a denial of some specific instance of an SEP injunction was proof that they were overall either abusive, or illegal in the first place. Neither of those instances have occurred yet that I'm aware of. The denial of injunctive/exclusionary cures has been done for stated reasons other than SEP's should never qualify for one. That's a fact.. . .
This is the settlement agreement between the EU and Samsung on SEP's and injunctive relief. Yes, there's still allowances in there for situations that might still qualify for an injunction on FRAND-pledged IP. If there wasn't there would be little reason for a potential licensee to agree on a timely settlement would there? Drag it out for years and years and hope for the best might have been the best tactic. http://ec.europa.eu/competition/antitrust/cases/dec_docs/39939/39939_1301_5.pdf
I'm not aware of anyone here in denial about which way the wind is blowing. There's absolutely a push for clarity and direction and everyone understands that. You're shifting to a false argument if that's where you're going now.
Where you got challenged was on the absolute statements you were making, implying that a denial of some specific instance of an SEP injunction was proof that they were overall either abusive, or illegal in the first place. Neither of those instances have occurred yet that I'm aware of. The denial of injunctive/exclusionary cures has been done for stated reasons other than SEP's should never qualify for one. That's a fact.. . .
This is the settlement agreement between the EU and Samsung on SEP's and injunctive relief. Yes, there's still allowances in there for situations that might still qualify for an injunction on FRAND-pledged IP. If there wasn't there would be little reason for a potential licensee to agree on a timely settlement would there? Drag it out for years and years and hope for the best might have been the best tactic.
You can't see that we have crossed the Rubicon. There's no going back in the US. There's no going back for Europe, except maybe Germany, but that is turning around as well.
You seem in denial or ignorant of what effectively happened with the ITC veto. The ITC cannot determine whether or not an offered FRAND rate is indeed FRAND. It does not have any authority to set or determine FRAND rates. Only a US Court can do that. In Samsung v. Apple, in the absence of determining a FRAND rate, the ITC favored the theory of reverse patent holdup over patent holdup, and the president said "No!" The ITC uses the same "technicality" (no FRAND determination) to favor the SEP holder unfairly that goes on in Germany but which antitrust regulators are calling abusive. The President said "No!" to that. My "PERIOD!" refers to the veto based on trade policy, injunctions for SEPs without a US Court-decided FRAND determination first, are History, Kaput! Fini! PERIOD!
Comments
Posner quite clearly supports my position that injunctions for SEPs aren't appropriate except in the hypothetical case where the infringer has refused to pay a royalty that meets the FRAND requirement. That doesn't ever happen, at least no one has ever been able to cite an example of it. This condition/exception is a hypothetical one.
Decisions of first instance are often incorrect, that's why we have an appeals process. Apple would have had the opportunity to appeal this decision to both the ITC and, failing that, to the CAFC. As it was they didn't need to since another authority higher than the ITC reversed the decision–the President. The fact is the ITC's decision was overruled, and all the reasoning that went into it is no longer relevant except to those in denial of the final judgment. Perhaps you imagine someone else will overrule the President's decision concerning an executive branch agency?
Perhaps you can't imagine that without a determination of "what a FRAND rate is" in this case the ITC can not reasonably determine whether Apple refused a FRAND rate.
Maybe you will cite where District Court Judge Koh appoved of the injunctions Samsung was seeking for its SEPs that Apple was found to have infringed? No? Didn't think so.
For all the nits you pick, the fact remains that except possibly in Germany no one is getting injunctions for SEPs anymore (and even now it looks like German lower courts will be referring SEP cases to the CJEU now they've realized they are the European outlier when it comes to SEPs). Injunctions for SEPs are being denied around the world. Despite the hypothetical exceptions where an injunction might be allowed, seeking injunctions for SEPs is now considered abusive behavior, and is becoming, or has become already, a thing of he past. But go ahead and cite some recent examples to prove me wrong.
BTW, did you read the article? Or even the title of the article?
http://www.fosspatents.com/2014/02/us-and-eu-antitrust-enforcers-take.html
Antitrust regulators have a habit of making a lot of noise and then backing off when it comes to actual remedies and punishments. It's their m.o. They are the mouthpieces. Same as it ever was. Meaningful change first occurs in the courts, which is happening as we speak in the District Courts and soon the appeals courts. Legislators will get their say eventually, and the language in the contracts of the standards bodies will also be reflecting the new reality.
I have strong opinions but I welcome challenge and always look forward to a worthy opponent on topics I've looked into beyond the soundbyte and superficial analysis. I don't have much respect for opinions that only ad hom opponents in an effort to either silence or avoid the substance of an argument. I have only contempt for those who make up their own information.
It's no surprise to me that on any internet forum there are plenty who can't read the writing on the wall about SEP abuse.
I'm not aware of anyone here in denial about which way the wind is blowing. There's absolutely a push for clarity and direction and everyone understands that. You're shifting to a false argument if that's where you're going now.
Where you got challenged was on the absolute statements you were making, implying that a denial of some specific instance of an SEP injunction was proof that they were overall either abusive, or illegal in the first place. Neither of those instances have occurred yet that I'm aware of. The denial of injunctive/exclusionary cures has been done for stated reasons other than SEP's should never qualify for one. That's a fact.. . .
...PERIOD
http://www.ip-watch.org/2013/03/28/royalty-setting-for-standard-essential-patents-might-be-balanced-by-prospect-of-injunction-speakers-say/
http://www.iam-magazine.com/blog/detail.aspx?g=5d462193-e538-444f-83b1-369c5e59c020
This is the settlement agreement between the EU and Samsung on SEP's and injunctive relief. Yes, there's still allowances in there for situations that might still qualify for an injunction on FRAND-pledged IP. If there wasn't there would be little reason for a potential licensee to agree on a timely settlement would there? Drag it out for years and years and hope for the best might have been the best tactic.
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39939/39939_1301_5.pdf
I'm not aware of anyone here in denial about which way the wind is blowing. There's absolutely a push for clarity and direction and everyone understands that. You're shifting to a false argument if that's where you're going now.
Where you got challenged was on the absolute statements you were making, implying that a denial of some specific instance of an SEP injunction was proof that they were overall either abusive, or illegal in the first place. Neither of those instances have occurred yet that I'm aware of. The denial of injunctive/exclusionary cures has been done for stated reasons other than SEP's should never qualify for one. That's a fact.. . .
...PERIOD
http://www.ip-watch.org/2013/03/28/royalty-setting-for-standard-essential-patents-might-be-balanced-by-prospect-of-injunction-speakers-say/
http://www.iam-magazine.com/blog/detail.aspx?g=5d462193-e538-444f-83b1-369c5e59c020
This is the settlement agreement between the EU and Samsung on SEP's and injunctive relief. Yes, there's still allowances in there for situations that might still qualify for an injunction on FRAND-pledged IP. If there wasn't there would be little reason for a potential licensee to agree on a timely settlement would there? Drag it out for years and years and hope for the best might have been the best tactic.
http://ec.europa.eu/competition/antitrust/cases/dec_docs/39939/39939_1301_5.pdf
You can't see that we have crossed the Rubicon. There's no going back in the US. There's no going back for Europe, except maybe Germany, but that is turning around as well.
You seem in denial or ignorant of what effectively happened with the ITC veto. The ITC cannot determine whether or not an offered FRAND rate is indeed FRAND. It does not have any authority to set or determine FRAND rates. Only a US Court can do that. In Samsung v. Apple, in the absence of determining a FRAND rate, the ITC favored the theory of reverse patent holdup over patent holdup, and the president said "No!" The ITC uses the same "technicality" (no FRAND determination) to favor the SEP holder unfairly that goes on in Germany but which antitrust regulators are calling abusive. The President said "No!" to that. My "PERIOD!" refers to the veto based on trade policy, injunctions for SEPs without a US Court-decided FRAND determination first, are History, Kaput! Fini! PERIOD!