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.'"

Comments

Finally

[Vskye]

A judge that gets it. A refreshing change for once.

Re:Finally

[Omnifarious]

He's the judge that really adroitly handled the Microsoft antitrust trial, then flubbed it by speaking to the press about the trial before it was over. That gave Microsoft the grounds for an appeal (and subsequent 'slap on the wrist' punishment) based on him 'not being impartial'. Which was bunk, but his mistake gave the appearance, and that was enough.

But, overall, I've seen his name come up a few times, and I've been generally pretty pleased with how he's handled cases.

Re:Finally

[Anonymous Coward]

Wrong judge. That was not Posner.

Re:Finally

[haploc]

He's the judge that really adroitly handled the Microsoft antitrust trial, then flubbed it by speaking to the press about the trial before it was over. That gave Microsoft the grounds for an appeal (and subsequent 'slap on the wrist' punishment) based on him 'not being impartial'. Which was bunk, but his mistake gave the appearance, and that was enough.

That judge was Thomas Penfield Jackson.

Re:Finally

[Anonymous Coward]

Posner is probably the most famous judge alive that's not in the SCOTUS. His words may even be mroe influential than some Supreme Court judges. His decisions are in practically every law case book that every law school student will read in every subject imaginable.

Also, as pointed out above, he wasn't the judge that handled the Microsoft antitrust case.

Re:Finally

[Merk42]

Catastrophic effects are good. That will lead to changes in the patent systems which will benefit everyone...

You're assuming that second part would happen...

Re:Finally

[Impy the Impiuos Imp]

Gets it?

That's why all these big companies have suites of thousands of patents -- so they can force a capitulation to mutual sharing agreements. The judge is just trying to hurry this process.

He gets it, but not in the way the OP thinks.

Re:Catastrophe theory

[easyTree]

They could always get some other phone.

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.

Re:Catastrophe theory

[Anonymous Coward]

So, you are a Samsung fan-boy then?

"I dont think so, Mr. Powers..."

[wierd_w]

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.

Re:"I dont think so, Mr. Powers..."

[tepples]

I was going to say "everything that the non-Technical consumer likes is evil"

How about "everything deliberately antagonistic to technical users is evil"?

Maybe "only the perceived underdog is not evil"?

That view would fit in with Slashdot commenters' view of antitrust law. The market leader, especially one in a position of exclusive rights, is likely to have market power and is likely to have abused this market power.

Re:"I dont think so, Mr. Powers..."

[IamTheRealMike]

I think you'll find that started after Apple began attempting to destroy all other companies. Motorola, being a company that invents important technologies, has its patents largely in pools licensed to others. I don't think anyone ever anticipated anything like what Jobs started, if they had, the terms around FRAND patents would likely look different.

Re:"I dont think so, Mr. Powers..."

[Anubis IV]

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.

I'm curious how far you're willing to take your idea. Imagine you invented something original that made everything else on the market look like "tincans on wires", you patented it, and your company was starting to disrupt the market thanks entirely to the competitive advantage offered by your innovation. You're setting your company up for long-term success, when one of your larger competitors, fearful that they'll be pushed out, copies your idea, deploys it on all their devices, destroys your competitive advantage, and uses their entrenched position to effectively push you out of the market before you got big enough to survive the assault. It's a pretty common story.

A "a reasonable, and non-predatory royalty" seems like a rather hollow victory in comparison to the long-term success that you've been forced to sacrifice, doesn't it? And you'd rightfully feel like you had been robbed if someone suggested otherwise. Granted, Apple isn't getting pushed out of the market by any means, but I really hate it when people suggest that companies should be forced to license their patents against their will (even in the case of endemics, the U.S. government doesn't force pharma companies to license patents; it simply infringes on them). If a company wants a competitive advantage instead of a payout, that's their "exclusive right" granted in Section 8 of the U.S. Constitution, for as long as the patent exists.

And before someone mentions it, Motorola being forced to license their patents to Apple was entirely of their own doing. They submitted their patents to be a part of various industry standards, and in exchange for having their patents accepted as part of the standard, they, in turn, accepted that they would be required to offer FRAND terms to anyone who wanted to license the patents. In contrast, Apple made no such agreement (at least with these patents), so forcing them to license them is nonsense.

As for whether the patents should have been granted in the first place, well, I think there have been a lot of crappy patents granted to all parties involved, many of which should simply be revoked. Whether these ones fall into that category or not, I don't know.

Re:"I dont think so, Mr. Powers..."

[whisper_jeff]

I think you'll find that started after...

You know what? It doesn't matter when it started. Apple is under no obligation to license their non-FRAND patents, should they choose not to. Motorola, however, is. Motorola submitted their technologies to the industry standard and agreed to license those patents under FRAND terms. They currently are not. It doesn't matter who started it or that Apple isn't licensing their patents or anything else for that matter. FRAND terms are clear - you license your patent to EVERYONE and ANYONE who wants to license it at FAIR and REASONABLE terms and you do so WITHOUT DISCRIMINATION, meaning you can't pick and choose. FRAND stands for Fair, Reasonable, And Non-Discriminatory.

If Motorola didn't want to be subject to FRAND licensing requirements, they shouldn't have submitted their technology to the standards organization. They did, however, want to be part of it because, while they may make less-per-license under FRAND terms, they more than make up for it in bulk because EVERYONE that wants to make use of the technology has to license it.

So, it doesn't matter that Apple start it. It doesn't matter that Apple isn't cross licensing. It doesn't matter anything. Motorola (and Samsung, who are similarly abusing FRAND patents) are obliged to license the patents.

Oh, and when Company A license the patent to make a chip and then Company B comes in and buys that chip, Company B is not obliged to license the patent as well - it's already been licensed, by Company A. Attempting to get licensing fees from both companies is double-dipping.

You know, I'm constantly stunned that anyone, regardless of their feelings towards Apple, would support what Motorola and Samsung are doing. If you truly feel that patents being used as a weapon to hold back competition in a market are a bad thing, you should be OUTRAGED by what Motorola and Samsung are doing given that it's the most egregious abuse of their patents. Apple's patents can be designed around because they aren't essential. If you don't want to license them or Apple doesn't want to license them to you, just design around them and you're fine. Motorola and Samsung's patents are essential patents for the industry (thus their being covered by FRAND restrictions) so if either company decides not to license them to a company, they effectively prevent that company from participating in the industry. The patents can't be designed around.

But, hey, people can continue hating Apple and blindly ignoring the fact that Motorola and Samsung are the companies actually abusing the patent system to stifle competition...

Paralel reality :)

[Pecisk]

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.

Re:Paralel reality :)

[brokeninside]

That's an ironic comment on Posner who champions judicial pragmatism which, so far as I can tell, is what used to be called legal realism back in the days of Oliver Wendell Holmes. The chief tenet of this judicial philosophy is that law is nothing more than a prediction of how judges will rule and the state will enforce the laws. The theoretical content is minimal. Everything is reduced that which actually happens.

In this view, any `intent' by the framers of a law is only as relevant as the police and judges hold it to be. No more, no less.

Re:Catastrophe theory

[blackest_k]

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.

Re:Catastrophe theory

[wierd_w]

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.

Public interest

[mwvdlee]

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.

Prima cambiarono il giudice...

[SpaghettiPattern]

...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.

Re:Catastrophe theory

[chrb]

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".

Re:Catastrophe theory

[Teun]

Please get to the core of the problem, that's your legislature and it's voters.

Re:Catastrophe theory

[jo_ham]

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.

Re:Judge is walking a thin line over a slippery sl

[Rogerborg]

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.

What are the legal teams financial incentives ...?

[PolygamousRanchKid]

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 . . .

To promote the progress of science and useful arts

[mangu]

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.

Re:To promote the progress of science and useful a

[jo_ham]

"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).

Re:Judge is walking a thin line over a slippery sl

[Rich0]

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...

Charging more than FRAND for non-frand licensees

[Anonymous Coward]

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?

Re:Judge is walking a thin line over a slippery sl

[Idbar]

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.

He's an appellate judge.

[GodInHell]

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.

Re:Catastrophe theory

[lorenlal]

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.

Lawyers who win still have to work appeals

[tepples]

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.

Re:Yes, that's what FRAND means.

[jo_ham]

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.

Re:Charging more than FRAND for non-frand licensee

[Anonymous Coward]

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".