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Judge Suggests Apple, Motorola Should Play Nice
sl4shd0rk writes "Federal Judge Richard Posner seems to be a man who gets the screwed up patent system in the U.S. As Apple pressed for more injunctions against Motorola regarding alleged patent infringement, Judge Posner has stressed the two companies should just 'get along' and pay each other royalties. A jury trial set to start last week was cancelled when Posner ruled that neither side could prove damages, and grilled Apple's legal team saying an injunction against Motorola would be 'contrary to the public interest.' Furthermore, as Apple tried to plead its injunction case concerning four patents, Posner called the U.S. patent system 'chaos' and said an order barring the sale of Motorola phones could have 'catastrophic effects.'"
A judge that gets it. A refreshing change for once.
Life was hell, then I discovered Linux...
First they came for Motorola,
and I didn't speak out because I wasn't a Motorola fan-boy.
Then they came for Nokia,
and I didn't speak out because I wasn't a Nokia fan-boy.
Then they came for HTC,
and I didn't speak out because I wasn't an HTC fan-boy.
Then they came for me
and there was no one left to speak out for me.
Requiem for the American Dream
So, you are a Samsung fan-boy then?
Yah :D
Requiem for the American Dream
Cutting a large amount of the Motorola market off from Motorola products could be catastrophic for the company. Which would be catastrophic for the jobs of a lot of the people working there. Which would be bad for the economy. So yes.
I agree with the judge. Apple should get a reasonable, and non-predatory royalty for any alledgedly used patents, not an injunction barring anybody else from making phones that aren't tincans on wires.
But that would be contrary to the memory of dr evi..I mean, Steve Jobs, who famously said he would [expletive] destroy android.
Apple doesn't want a royalty. They want dominance. I hope the judge hands them their balls on a plate instead.
Wow, judge who actually gives a **** about theoretical intent of the law? Must be something wrong happened. We branched off from main timeline, yes?
Seriously, so much common sense that it is overhelming.
user@ubuntubox:~$ stfu This server is going down for shutdown NOW!
There is a massive supply chain and investment that goes into the production of these shiny toys. That is the catastrophe when all of a sudden you can't bring your product to market. That investment can become a massive loss.
Any company that uses lawyers to ban competing products is going to get a bad reputation and damage their own sales.
Is an iPad such a bad product that it can not compete with a Samsung tablet? If I want a Samsung tablet and I can't buy it because of Apple, I really don't think I will buy an iPad instead. I probably will buy a different tablet from a different manufacturer.
I may well refuse to buy Apple products in general due to their interference manipulating what I can buy.
Change the company names and the products to suit your own preferences, it doesn't really matter who's manipulating markets through court rooms. They deserve to lose sales due to their tactics.
Products should compete on their merits not on legal technicalities where 2 engineering teams solved similar problems, independently of each other.
Blarney Quality Restaurant, Plants
So he should refuse to buy USPTO products ?
The company that's being blocked loses out on sales whether there's really a case to answer or not, and they have no realistic chance of recouping that.
Injunctions should only be used where there's a possibility of immediate and irreparable damages to the person requesting it. I find it hard to imagine a valid reason, to be honest. Perhaps if some third party product breaks a device it's claimed to be compatible with?
If Apple eventually prevail in their case, then the more Motorola sold in the meantime the more they'll have to pay. If Apple's case fails then Motorola haven't been harmed.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
No, its properly with Apple.
A patent is a limited right, granted to get the information published for the public to read and implement later.
It is intended to help prevent industrial secrets, and improve the state of the art. That is the purpose for a patent.
Apple's violent brandishing of the powers afforded to it via the patent process to stifle innovation, and to suppress the advancement of the state of the art is directly counter-intuitive to the reason they were granted the patent in the first place.
Apple could have chosen to license the patent for a steep fee, or to charge a royalty for the use of their patent, but instead seek to use it as a barrier to entry for other and competing products.
This is not the fault of the USPTO. It is squarely the fault of Apple Inc.
It's BOTH at fault.
First, on the USPTO, for granting the patents.
Second on Apple for maliciously taking advantage of a bad situation.
Replace patent abuse with burglary, the USPTO with a stupid homeowner that didn't lock the door, and Apple with the burglar, and you have the same thing.
FEI, the reference is to Solomon.
an injunction against Motorola would be 'contrary to the public interest.'
Contrary to the what now?
Is that like corporate interest, but only for publically traded corporations?
Perhaps it's some archaic concept from a long lost civilization?
I don't think "public interest" really exists in our modern times.
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...e subito dopo la legge.
To all conspiracy theorists, that was a quote from a song of some Italian dude on a judicial system. The full translated verse is "Listen, once a a judge like me judged the one who had dictated the Law. First they changed the judge and immediately after they changed the law."
Very 70s, very dark and in some instances very true. I for one remain curious to see if the savant will be sacrificed.
I hadn't the slightest objection to his spending his time planning massacres for the bourgeoisie... (P.G. Wodehouse)
I get the reference and your point, but...
then awarding the child to whomever surrenders fastest
This could lead to a lot of even more frivolous lawsuits where one party sues the other just to surrender as soon as it gets anywhere near an actual lawsuit, just to look like the good (least evil) party.
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So too big to fail? Sounds like these big manufacturing companies need to be broken up.
There is a big difference between a) a company declining over time, and b) what would happen if the government prevented a large consumer electronics company from selling its wares, thus forcing it into rapid failure, probably to the point of bankruptcy within days as the stock crashes.
Having said that, politically speaking these companies probably are "too big to fail"; can you imagine politicians standing idly by if some foreign competitor ever got a complete sales ban on iPhones? I bet patent law would be reformed within weeks to "protect American jobs".
Please get to the core of the problem, that's your legislature and it's voters.
"The likes of Facebook and WhatsApp are free to those whose privacy is of zero value."
Cases are dismissed on grounds of public interest all the time. Every judge is entitled to refuse to take a case or to later drop it he or she considers it contrary to the public interest to follow through. And of course every party involved can later file a complaint because of an unfair dismissal.
So wait, why is this Apple's fault?
Surely Apple have the choice when it comes to a patent that has been granted to them. If they *want* to licence it for a steep fee, they can. If they *want* to block anyone else from using it, they can.
I don't disagree with your sentiment (I think the whole patent system is getting out of hand), but the way it it currently set up, Apple is perfectly within its rights to sue other companies who infringe on patents it holds (even frivolous ones) - that's how the system works.
The patent system was set up to foster exactly the sort of thing that Apple (and many of its competitors) are doing. It's just getting into a ridiculous position because more and more things are being patented that really shouldn't be.
First and foremost, Apple is a business - it is going to do what it can to ensure that it succeeds at that goal. I may think it's a stupid move, but they are well within their rights to make it.
Remind me, who exactly is it that implements these most hallowed "checks" and "balances" to laws that take a huge steaming dump all over the Constitution?
Superman, right? That's who does it? Or Jesus. Or Super-Jesus-man?
A judge who interprets Article I, Section 8, Clause 8 literally, including the preamble which clearly explains its actual purpose and goal, is OK in my book.
If you were blocking sigs, you wouldn't have to read this.
Oh hell, if we can just tell everyone to "get along" instead of actually having trials, I'm becoming a fucking judge!
Regardless of how stupid a patent case is, it's the current law and deserves a trial. Period.
You wanna change the patent system? then fucking help change it. Don't ignore your responsibilities.
They get paid billable hours for litigating. They get paid less for "getting along" with opposing legal teams. Going to war is more profitable for the legal teams of both sides. At least an army general may be reluctant to go to war, because he cares about the loss of life and morale of his soldiers. Lawyers don't suffer when they lose a case. They get paid more billable hours for an appeal.
"Contrary to the public interest" is not even a concern here. How do we change this? Well, maybe we need Congress to reform some laws . . . ?
. . . Oh, but what are their occupations, outside of Congress . . . they are all lawyers . . . ?
. . . Ok, I think I understand how the system works now . . .
Schroedinger's Brexit: The UK is both in and out of the EU at the same time!
And if we don't like their attitude as displayed by the choice they took, we can blame apple.
What else can you blame someone for, if not the choice they made?
Tell me where the patent laws say that apple HAD to do what they did?
Nowhere.
First and foremost, Apple want our money. Acting like this, I decide to forbid them access to it and blame them for the choices they took.
Surely Apple have the choice when it comes to a patent that has been granted to them. If they *want* to licence it for a steep fee, they can. If they *want* to block anyone else from using it, they can.
Not according to the US Constitution which says patents exist "To promote the progress of science and useful arts".
Unless Apple shows how their blocking others from using their patents will promote the progress of science and useful arts, what they are doing is unconstitutional.
"Exclusive use of the granted patent allows us to recoup the cost of the research spent on making this product, allowing us to work on future products".
You won't agree with that (and I don't really), but a court will (and has).
FFS Motorola are trying to charge way above the norm for FRAND patents. If everyone with a FRAND patent charged the percentage Motorola is after there would be no way for anyone to make anything.
Its much easier to just bash Apple though. Way to let your agenda and prejudice show.
You may think me a tired, old, cynic. I'd have to disagree about the tired bit.
So you're saying that the blame resides with the company or individual that is exercising it's limited rights, rather than the government office that granted the arguably invalid patent in the first place?
You aren't making a very good argument here.
Posting anonymously because common sense gets modded into oblivion these days.
Yes and no. Judges ought to apply the law and constitution as they were intended to be applied. Whether this is 100% consistent with their wording is not as much of a concern for me.
It seems like the US legal system has become one big game, where people do stuff that clearly harms the public, with the only justification being "but I'm obligated to be selfish and the letter of the law lets me get away with it..."
The solution is to simply apply common sense. If somebody deducts $300M from their taxes because they bought a sewer system in France and leased it back to the municipality, then simply rule that they owe the taxes anyway plus penalties so that the company is out the penalties and whatever loss they incurred on sewer deal. If you quit letting people abuse loopholes they'll stop doing it. When they complain that the letter of the law allows it, the answer is "so what."
When my computer crashes because it blindly follows an algorithm that is imperfect, I'll accept that this is one of the limitations of computers that we accept because they're so much cheaper. When human beings behave in the same way, then I have to wonder why we bother to pay them...
Replace patent abuse with burglary, the USPTO with a stupid homeowner that didn't lock the door, and Apple with the burglar, and you have the same thing.
Most rational places don't see leaving your door unlocked as an invitation to be burgled, nor infer any culpability whatsoever to the homeowner (nor diminish the burglar's in any way) if they are burgled because of it.
At some point we're going to need to stop explaining away this behavior that's clearly at odds with the spirit of the law, if not the letter. I seriously doubt that Apple's use of patent law as a club to beat every competitor to death is in any way in following the spirit of patent law at all.
And that's absolutely fine. The license terms Apple want are for people who contribute to the patent pool. Apple don't want to contribute to that patent pool like the others, but still wants the same deal apart from that payment.
The FRAND payment is cash plus put your patents in the pot.
And everyone else is paying it.
Apple don't want to. Why should they get a cheaper rate than anyone else?
While public interest is greatly appealing to the masses. The summary says they cannot clearly prove losses... and checking the record profit apple has being setting... it may be right a good reason to hardly believing them all the losses they are running into due to Motorola.
A judge who dismisses a case on grounds of 'public interest' and not rule of law is overstepping his authority.
I don't see any violation of rule of law here. The patent statute, 35 USC, must be interpreted consistently with the purposes expressed in the Constitution, which states: "The Congress shall have power [...] To regulate commerce [and] To promote the progress of science and useful arts". When companies seek injunctions against nearly the entire handheld computer market (that is, devices running iOS or Android), this promotes neither "commerce" nor "progress".
the checks and balances established for it by our Constitution
...include a judiciary to interpret statutes in light of the Constitution.
How can you seriously conclude that the judge is ``overstepping his authority'' if you `` havn't read the case materials''?
That's idiocy of the highest order.
the premise behind patents is that it promotes the progress of science and useful arts by encouraging businesses to reveal trade secrets. We don't want inventors taking their ideas to the grave; we want them rushing out to tell the world. There's vultures waiting to steal all their ideas, though, so we give them legal right to decide who's allowed to play that way for a little while in exchange for telling us how they do it. Then in 14 years we can build on their ideas, or at least use them everywhere, advancing technology in general.
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This story really needs to mention that posner is actually an appellate judge sitting on the trial bench because we have too many open seats on the federal bench. Appellate judges are being forced to do double duty. Posner, as an appellate judge, is accustomed to commenting on and changing our interpretation of law. Dangerous man to pull for a trial judge.
Why not both. If you see perceive something as injustice it seems silly to keep your mouth closed until you can find just the right person to blame. If apple is abusing the patent system then they should be held accountable in the public opinion.
The soylentnews experiment has been a dismal failure.
Nope. Not biased at all. The suit that Motorola fired against Apple was a direct reply to the suit the Apple opened against Motorola for violating Apple's patents.
See, Apple is vilified in this case because they aren't asking for compensation, they're trying to leverage their patents to *prevent anyone from licensing them or bringing a competitive product to market.* Motorola does license their FRAND patent fairly, with one exception being made for customers who are currently suing them.
Apple's actions are completely against any spirit of patents. They're not just a dick maneuvers, they harm markets, prevent innovation, and hurt us (the consumers). Considering that Apple has a bit of history of manipulating images to "prove" likeness with Samsung, the population here is going to side with whomever Apple is suing.
And given your posting history, I'd be very cautious when calling someone a shill.
Motorola isn't exactly playing nice with their FRAND licensing on this, which probably hurts their case a bit as a result. I agree with you they are both abusing the system. Sadly this has become the norm for Apple to act like this and only us geeks seem to care about how it affects the larger tech landscape.
Its only the MBAs that equate stock price with a company's value.
In the era of super PACs, MBAs also control who gets elected to U.S. office.
"Seven Deadly Sins? I thought it was a to-do list!"
Lawyers don't suffer when they lose a case.
Are you sure the hourly rate that the lawyer can charge doesn't suffer?
They get paid more billable hours for an appeal.
Lawyers who win get paid billable hours for an appeal too.
Just because you love Apple so much, any criticism "must" (in your insane logic) be for no reason at all.
Apple CHOSE their actions. People CHOOSE to blame Apple FOR their actions.
How else does this work?
I notice you didn't manage to answer that.
PS FRAND licenses require a payment of "put your patent in the pool and pay this amount of cash". Apple don't want to put their patents in the pool and therefore you're arguing that Apple should get the same patents cheaper than anyone else. How is that "fair"?
Err, wrong. FRAND patents require that you licence your patent reasonably, fairly and in a non-descriminatory fashion. It *does not* require that you put patents into the pool. How could it? You seem to fundamentally misunderstand the reason for the FRAND system. The standard is set - if a new player comes along and "puts their patents in" then surely the standard would have to change? There is absolutely no requirement that the fee for use of FRAND patents includes licencing patents of your own. You *can* do that, if you choose to (and the licensing party agrees) but you are not obligated to do so - you can pay in cash, or goats, or blue M&Ms or anything else you can trade with, as long as you pay the same amount as everyone else.
You are also (wilfully, I hope, but possibly not, in which case I'm so very sorry) about "choosing to blame". My point is not that Apple are not blameless, or that people aren't free to assign blame. My point concerns the hypocrisy of their statements. "Apple is abusing the patent system! rwar! I won't give them any of my money! Ooh, check out my shiny Samsung Galaxy!"
Also, you forgot to log in.
You're arguing semantics. I offered an opinion and a question - that's the point of a discussion, no? I'm asking why, not proclaiming that they can't.
Here's a scenario for you.
A: I slipped over on a wet floor, it's the store's fault
B: How is it the store's fault?
A: They didn't have a sign up warning me.
B: I see, well I'd suggest that you watch your step in future, but I agree that the store should put up a sign - perhaps they hadn't noticed yet?
The question does not mean "you are not allowed to assign blame".
I'm also not sure how I can have a "pretend moderate" voice. Either I'm being moderate or I'm not? Do you see me raging and cursing at anyone?
You're claiming "Apple don't want to pay that price [the licence cost of a FRAND patent]" - but on what grounds? Do you have a citation on that? They were in negotiation with Nokia for years over the value of cross-licenced patents to come to an agreement. There was certainly never any indication that they "didn't want to pay" - they just want to pay what's fair.
As far as lawsuits with Motorola and Samsung over FRAND patents, well that's where the water gets murky. For some reason both Samsung and Moto seemed totally fine with Apple's payment to use the 3G patents, right up until they needed a stick to beat them with, then all of a sudden "ooh, they are infringing on this patent, and haven't paid for it!". Funny that. I'm not sure how they can only partially have paid to use the 3G patents. If they have not paid for one, then they must also be in violation of all of them. Apple uses pretty standard 3G radios and chipsets - if it took Samsung 5 years to determine that there was one patent that Apple didn't pay for (given that they've been licensing their part of the 3G pool for years) then I have to wonder what on earth they were doing for all that time? Surely not holding one back that they could use in the event they got sued? How blameless of them! The alternative is extreme incompetence on Samsung's part. I'm not sure what's worse.
The 3G patent pool does not require that "you put patents in the pool" in order to licence what is currently in there (and this is what we're discussing here). If it did then the 3G standard would be meaningless, since the patent pool would continue to grow. What happens to older devices if new "essential" patents are added to the pool? The 3G FRAND patents are set the way they are to ensure interoperability across all the different cellular manufacturers, otherwise there would be chaos. The pool is static, containing the patents necessary for the standard to work.
Just for completeness, I am aware that different licence conditions are possible for FRAND patent pools, but that in general they are used when an industry standard is involved, so they tend not to grow (in terms of patents) once the standard is set, unless that standard is extended.
I want them to battle it out, but not in court.
I want them both to go and try to make the very best phone they possibly can and fight for each and every consumer's pocket.
Oh, but that would require more money and effort than just throwing lawyers around, wouldn't it?
What do I know, I'm just an idiot, right?
So, you are following my posts. Interesting. Can I assume you're just forgetting to log in?
You also ignored the rest of my argument.
I'm also not sure how I can have a "pretend moderate" voice. Either I'm being moderate or I'm not? Do you see me raging and cursing at anyone?
Of course you are. You just want to distort the meaning so that you don't fit.
One can calmly, with a smile, advocate just about anything. That's a "pretend moderate" voice. One *seems* reasonable, affable and moderate - yet if another actually digs into the meat the animal is rabid.
Whether or not this accurately describes your position is left to the readers.
Regards.
I suppose that's true, and the quiet ones can often be more dangerous than the rabid, raging ones. All I can say is that I don't bear anyone any ill will, nor am I malicious in my comments. I'm occasionally facetious, but there's no malice in it.
DISCLAIMER: I do not know if the poster you are calling out is factually correct in this situation(Apple wants the same FRAND license deal as those with patents in the pool).
If he is factually correct though you need to stop calling him wrong. This is how FRAND patents work. FRAND doesn't guarantee the same exact deal for everyone licensing a patent but does dictate that each deal must be fair and comparable to other licensing deals. Circumstances, however, can be taken into account.
Simply:
I have a major patent in the pool for some standard, your company has a major patent for that standard, too. We decide to just draw up a contract allowing us to use each others' patents with no money changing hands.
Another company wants to use both our patents. They have no patents in the pool. Do we have to license our patents to this third company for free since we didn't charge each other money in our licensing deal?
No. That would be stupid. We come to a separate deal with that third company, probably for money. As long as our terms are fair we don't have to compare it to the deal between our two companies. That is a separate case.
If a fourth company comes along in the same boat as 3(wants to use our patents, has no patents of their own in the same pool) then we must give them a deal comparable to what we gave the third company. We can't charge them 2,000 times as much because we don't like the CEO. That is the nondiscriminatory part. Not "everyone gets the exact same licensing terms".
A patent is a limited right
According to the U.S. Constitution, it's an "exclusive Right". The only limit to that right is the life of the patent.
It is intended to help prevent industrial secrets
Trade secrets and patents serve entirely different purposes and are generally applied to different things. For instance, the most famous example of a trade secret might be the Coca-Cola formula, but Coca-Cola couldn't patent it even if they wanted to, nor would patenting it be in their best interest since it would effectively place a lifespan on how long they could continue to sell their primary product. Formulas, recipes, mixtures, and other things of that sort are ideal for treating as trade secrets, and trade secrets are protected by various laws in different states. Stuff that your competitors can take apart and put on a production line of their own within 6 months is stuff that is better off being patented, that way they are unable to do so.
and improve the state of the art
Correct. More specifically, it's "[t]o promote the Progress of Science".
Apple's violent brandishing of the powers afforded to it via the patent process to stifle innovation, and to suppress the advancement of the state of the art is directly counter-intuitive to the reason they were granted the patent in the first place.
That's not entirely correct, and is slightly hypocritical since you admit they have rights. Patents are granted to promote the progress of science "by securing for limited Times to...Inventors the exclusive Right to their...Discoveries" (the "..." stuff is all related to copyright). So, if the way that science is progressed is by securing that exclusive right, they need to be able to enforce that exclusivity. And while you are correct that any one specific enforcement may "suppress the advancement of the state of the art", you're failing to consider the bigger picture. If patents couldn't be enforced, the incentive for innovation would wither and disappear, leaving the state of the art in an even worse place.
So, you need enforceable patents, or else the entire purpose of the system falls apart under its inability to protect itself. As broken or misused as I think the system is, I'd still take it in its current condition over the idea of throwing it out altogether.
Apple could have chosen to license the patent for a steep fee, or to charge a royalty for the use of their patent, but instead seek to use it as a barrier to entry for other and competing products.
They have an exclusive right to the patent. If they want to maintain their competitive advantage instead of license it, that's their right. There's nothing wrong with them doing so. It's their prerogative as the patent holder, and they have no responsibility to do otherwise.
All of this said, I don't support many of the patents that have been awarded to Apple or the other companies being discussed, nor do I support the use of those patents in litigation. If someone truly innovates and then wants to protect their innovation, I'm fine with that. If someone gets a ridiculous patent and then uses it as a club, I loathe that.
Sure I did. If a kid behaved the way lawyers behave in court, their parents would simply smack them. Common sense prevails.
The judge hasn't dismissed any case. He denied Apple's motion for a preliminary injunction on the ground that an injunction would not serve the public interest. In order to establish entitlement to a preliminary injunction, the party making the motion (in this case Apple) must prove (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of the injunction, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Since the judge found that an injunction would not be in the public interest, and that Motorola was likely to suffer irreparable harm, the motion was denied.
The legal system in the US is set up with all sorts of controls over runaway judges going right up to Supreme Court justices who can be impeached and removed from office by congress. In some states judges are elected. In other states judges are appointed. I am not aware of any state that does not have some mechanism to remove judges that turn out to be whack-jobs. So the system has checks and balances on the individuals serving as judges.
Moreover, while it is true that any given judge has unlimited power to decide a case any which way, in practice that power is very limited because any given ruling can be overruled by the next level of the court system. Even the Supreme Court can be overruled by future courts, by legislation (e.g. the Lilly Ledbetter Act), or by amending the US Constitution. So there are checks and balances on the rulings themselves aside.
Posner himself has treated this topic at length. A hypothetical `judge gone mad' is a frequently recurring theme in the field of legal philosophy. I highly recommend his Law, Pragmatism, and Democracy.
A judge who dismisses a case on grounds of 'public interest' and not rule of law is overstepping his authority.
No, he's following the intent of the patent and copyright clause of the US Constitution. Article 1, Section 8 states:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
Promote the progress of science and the arts for whom and for what benefit? The public. This judge is one of the few who actually seems to understand that the primary purpose of patent and copyright is to bring the knowledge into the public domain by giving exclusive rights "for limited times" to the inventor, discoverer, or author. So, while the exclusive right is granted to a private person(s) or corporation, it is granted in exchange for contributing it to the public interest. If the rights holder is not fulfilling their public interest side of the bargain, it it within the rights of the courts to force them to do so, or revoke their exclusive rights.
make imaginary.friends COUNT=100 VISIBLE=false
Whether apples patent portfolio is dubious or not has got nothing to do with the issue of the morality of how to wield a patent - but then reactionary apple haters such as yourself are incapable of seeing the difference.
Well you've admitted yourself that Motorola are abusing their FRAND patent. Whether a company is a dick or not doesn't matter, it shouldn't be motorolas decision to make. I'm not making the judgement either way that apple have harmed the market in this post, but I am making the point that Motorola are harming the market with their actions. That fact shouldn't be lost.
I'd be tempted to create a Judge Hall of Fame for judges that just plain "get it." For ones who have an understanding of the philosophy and content of the fields upon which they are judging. And produce decisions based upon sound reason.
Judge Posner.
Judge John Jones (Dover: Intelligent Design, everyone should read this at least once a year.
Comments requested: who else should be on this list?
You are correct that FRAND does not require you to put patents into a pool, but if you choose not to cross-license or pool your patents, then the FRAND patent holders are free to charge you more money than those who did. The sticking point from the beginning has been how do you value the patents in the pool and patent cross-licensing in general. If you place a high value on them, then by Apple not contributing, they should pay a high cash fee. Conversely, if you place a low value on the patents in the pool and cross-licensing deals, then by not contributing, Apple should still pay a low rate. Motorola offered a cross-licensing deal to Apple and in turn Apple would pay the same rate as everyone else. Apple rejected it by claiming that Motorola was not correctly valuing its patents.
Apple has the right to license their non-FRAND patents or to not license them, as they chose. That is how the patent system works. FRAND patents, such as those being wielded by Motorola and Samsung, however, MUST be licensed to EVERYONE and ANYONE who wants to license them for FAIR and REASONABLE NON-DISCRIMINATORY rates. And, currently, they aren't.
I guess some people have an issue with Apple using non-FRAND patents to hammer Motorola and then claim that Mot must license their FRAND patents to Apple at a 'reasonable' rate. It seems to me that it's fair and reasonable to charge a high rate for my FRAND patents to someone who's charging me a high rate for their non-FRAND patents. Just because I might have patents in FRAND shouldn't tie my hands when dealing with someone who wants their cake (high fees on non-FRAND patents) and eat it too (low rates on FRAND patents they need). In other words, how is it discriminatory for me to charge a high rate to someone who charges me a high rate too?
It wouldn't be OK for me to charge a high rate to Apple for FRAND patents if I was also licensing FRAND patents from them, and I was charging that high rate because Apple was also charging me for non-FRAND patents as well.
I can mend the break of day, heal a broken heart, and provide temporary relief to nymphomaniacs.
So wait, why is this Apple's fault?
Because we aren't fanbois blinded by our bias, and can see that Apple is being dickish here.
You've never had a *single* bad thing to say about Apple. That probably means you're not capable of being objective. Therefore, we can ignore pretty much everything you have to say on the subject. If you can't examine your own sacred cows critically, please STFU and let the grown-ups do the talking.
You've clearly never read any of my posts then.
The Finder is terrible and needs serious work, Apple's lawsuits over slide-to-unlock and the Galaxy Tab are a major mistake, the use of pentalobe screws in the iPhone 4 and now in the new Macbook Retina is needless, the iOS UI needs a way to easily toggle common features like bluetooth and wifi like you can on Android, the Mac Pro "update" just done last month was one of the most laughably asinine things I have ever seen from any company (and the price of the MP is also much too high), the price for BTO options for many things is too damn high (RAM and SSD especially), Apple promised to open the FaceTime protocol "soon" ages ago and hasn't done so yet, iOS really needs something like Swype - which is one of the best input methods I've seen on a smartphone.
Sorry, anything else? This is just the stuff I remember talking about in the past year or so on here. I'm sorry if you simply choose to only see the positive things I have to say, given that there tend to be more of them. Each to his own I guess.
And as with Nokia, they wanted Apple's patents (and rejected the cash fee). Apple was quite happy to let some patents go, but not others that Nokia *really wanted*, hence all the long drawn out negotiation. Apple would be quite happy to have settled for a cash payment given the nature of their business model.
The to-and-fro about the value of the various patents involved was at the heart of the deal, never that Apple "refused to pay", as is often stated as fact around here, or that Apple "refused to put in any patents into a [closed, standardised] FRAND pool" (seriously, that is a major WTF).
The point is that this could never actually work in practice, making "use common sense" the less-than-common-sense solution.
Guns don't kill people; Physics kills people! - John Lithgow as Dick Solomon on Third Rock From The Sun
and there was no one left to speak out for me.
Because they didn't have phones
As far as I can tell, your post is in complete agreement with mine. Nokia and Motorola preferred patent cross-licensing. Apple felt their patents were being undervalued by those companies. In the case with Nokia, Apple had to make sizable cash payments in lieu of licensing what they considered their core patents for the iPhone.
Two story lines really interest me here. First, Apple entering, and effectively disrupting, the phone market. These companies are used to patent cross-licensing in order to create market stability. Enter Apple, which really doesn't seem to be interested in stability, but rather enjoy being disruptive (I am not using disruptive in a negative sense here). Secondly, the difficulty in valuing Apple's software patents versus the established companies hardware patents. None of the big established companies valued Apple's patents very high (or not nearly as high as Apple values their own patents). As the phone market continues to move toward more software driven products, this will continue to be a big issue.
The point is that it was a transaction that was made for no business purpose at all, but purely as a means to pay less in taxes (I doubt they made it to pay more in taxes). I see no reason that the US taxpayers should tolerate it.
It has worked in practice in many times and places. I doubt it would work in the current US climate, since people vote for whoever the shiny ads tell them to, and those ads are paid for by the beneficiaries of the current policies.
Once the US manages to bankrupt its treasury, loses the ability to pay police, and society collapses, you might see a different form of law enforcement where these kinds of approaches would be VERY common. If you fail to pay the local warlord the proper tribute I wouldn't count on a lawyer to be of much help...
I completely agree. That particular patent is supposed to be available to make it a standard, so selecting a target to selectively enforce isn't my idea of good business. My post is in reply to the parent only. I don't like the idea of firing up FRAND patents in any sort of litigation, but I am willing to grant some slack for defensive maneuvers.
I don't imply that a patent is there for anyone to copy. What I'm trying to point out is that patents exist "To promote the Progress of Science and useful Arts," and it's clear that Apple isn't working in that spirit, and that's why they're being vilified. I'm not saying it's right or wrong, that's just why I think they're being vilified.
As for their "right" to license or not license their patents, they clearly don't want to license anything that would allow anyone else to contribute or compete in the market. I'd immediately look at the validity of their patents, since I have yet to see one that doesn't have some sort of prior art. Regardless of validity, Motorola (either intentionally or not) did produce a product that exposed them to liability. Given the quality of the patents, it's possible that they didn't know they were infringing. Assume they did know. Now they get a chance to challenge them, and maybe they're getting exactly what they asked for. Awesome for them then.
Either way, Apple is coming across pretty poorly in my eyes because they're really just trying to prevent new market entrants. That's the point I'm trying to make. They have every right to do so, and I don't have any reason to tell them to stop myself. They're still acting dick-headed in my humble opinion, but fortunately for them, that doesn't hurt their bottom line.
Well, good!
We on the internet really do appreciate that!
Unfortunately it only takes a tenth of a percent to make reasonable people skittish.
I guess it depends on how closed your enviornment is how many griefers (or is that Reavers?) you run into.
If a gun dealer sells a firearm to a felon that shoots someone they are on the hook too.