Posner Dismisses Apple/Motorola Case, With Prejudice

whisper_jeff writes "Judge Posner has dismissed the patent case between Apple and Motorola, with prejudice (meaning they can't refile), putting an end to this patent dispute between the two companies. Posner wrote, 'Both parties have deep pockets. And neither has acknowledged that damages for the infringement of its patents could not be estimated with tolerable certainty.' I know many on Slashdot will be happy to hear Apple's lawsuit failed; I am happier to hear that Motorola has been prevented from abusing FRAND patents, a situation I feel could set a very bad, very dangerous precedent for the entire industry."

Comments

What the...!?

[Anonymous Coward]

...we have a judge that DOESN'T have his head up his ass?

Re:What the...!?

[reve_etrange]

At least two, anyway.

Re:What the...!?

[Anonymous Coward]

One more sign that the end of days approaches.

Re:What the...!?

[Anonymous Coward]

He's an economist.

FRAND is a red herring

[rtfa-troll]

FRAND is just another patent cartel and we have no reason to care about it. FRAND standards organisations should be seen as a form of illegal cartel.

Even funnier is that Apple and Microsoft, who have completely failed to get licenses for these FRAND patents go around attempting to mug people with knives and start crying like babies when companies like Motorola that have actually done some serious research in their lives pull out a combat shotgun. "Want to make my day?".

Re:FRAND is a red herring

[SuricouRaven]

I notice that the F is for 'fair' not 'free.' Noncommercial users, espicially free software, tend to get excluded as they can't afford the royalty. This is why Firefox doesn't support h264 video.

Re:FRAND is a red herring

[Anonymous Coward]

i was all like, hell yeah, niggas

Re:FRAND is a red herring

[martin-boundary]

And that's a good thing. The Free Software community shouldn't get suckered into using proprietary formats. We're here for the long haul, not to line some turtleneck sporting CEO's pockets.

Re:FRAND is a red herring

[khipu]

It wouldn't be "proprietary" if it actually were required to be freely licensed.

Re:FRAND is a red herring

[khipu]

For all their faults and inability to create decent software, Microsoft actually spends a lot of money on research. Apple, however, doesn't; Apple just "steals" other people's ideas and inventions (according to Steve Jobs himself).

Re:FRAND is a red herring

[Richard_at_work]

Really? Tell me how Mozilla justifies paying on average $60Million for software development ($88Million in general salaries), bearing in mind that if all their 250 or so employees are only costed against software development, then that gives them an average salary of $245,000. Of course, rough numbers all based off the 2010 financials, and I low balled the calculations deliberately because not all those 250 or so employees are costed against software development...

Mozilla, long the poster child for open source, seems certainly to be in it for the money... I wonder how much their CEO gets.

Also interesting is the list of investments Mozilla has - hedge funds, corporate funds etc etc etc.

http://static.mozilla.com/moco/en-US/pdf/Mozilla%20Foundation%20and%20Subsidiaries%202010%20Audited%20Financial%20Statement.pdf

Re:FRAND is a red herring

[iserlohn]

I'm guessing not all of the money in the software development budget so to the software developers salaries - you have the overhead of hiring the employees, including desk space, HR, etc. You have expenses related to software development including test infrastructure, external testing, etc. Furthermore, you would also have parts of it going to any contractors that would not be counted in the headcount.

For me, I use Firefox a lot and I'm glad that they are financially healthy. Mozilla is tiny compared to the behemoths and it's nice to know that it's not going away soon because of mismanaged finances.

Re:FRAND is a red herring

[Anonymous Coward]

Please list with citations what apple has stolen.

If you start with the GUI and the mouse or even mention Xerox you are wrong

Re:FRAND is a red herring

[Anonymous Coward]

Steve Jobs: "Good artists copy, great artists steal"

http://www.youtube.com/watch?v=CW0DUg63lqU

Re:FRAND is a red herring

[ratbag]

FWIW quoting Picasso and thereby possibly allowing a more nuanced interpretation of the word "steal".

Re:FRAND is a red herring

[whisper_jeff]

This is up AGAIN???

Screw it - I'm going to copy-paste a blog post I wrote back when this was making the rounds before.

-----

"Good artists copy; great artists steal."

Now, obviously, this quote is thrown about in an effort to make Apple and/or Steve look bad and imply that they ripped off ideas from others. Well, the problem is the quote is actually a misquote which thus clouds the point, which is rare for someone of Steve's speaking elegance. Most people who know it's a misquote believe he's misquoting Picasso but the truth is he's misquoted TS Elliot. The actual quote is:

"One of the surest tests [of the superiority or inferiority of a poet] is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn; the bad poet throws it into something which has no cohesion. A good poet will usually borrow from authors remote in time, or alien in language, or diverse in interest."

Now, when you compare Steve's misquote and TS Elliot's actual quote, you see they actually say basically the same thing but TS Elliot's full quote obviously puts the whole thing into context so the point is understood.

And I agree with it.

I have long believed that there are no more original ideas, just interesting takes on old ideas.

Now, as with Steve's misquote, when expressed that simply, my point can get lost and often has led to people disagreeing with me, strongly. But my point is this - as we grow up, we are exposed to extensive amounts of information that becomes the background noise of our creative processes. As we write, paint, sculpt, compose, and otherwise create, we are influenced, in one way or another, by everything we've seen and heard up until that point. Sometimes the inspiration is heavy and obvious and other times it's subtle and we aren't even aware of it. But we're always influenced by what we've seen up until that point of creation. And good creators put an interesting spin or twist on their inspirations and come up with something that seems and feels new and original. But, at the end of the day, there are no more original ideas, only interesting takes on old ideas.

While many toss around Steve's misquote in the hopes of painting him and Apple in a bad light, they fail to realize that, though he over-simplified a complex issue, he's right. As was TS Elliot before him. Great creators are inspired by what has come before them; they transform and mold and adapt their creation until its something new and wonderful while other creators simply copy without any of the finesse, simply regurgitating what came before.

And, when viewed in the context of Apple, it is clearly relevant. Apple is often touted as being innovative and original by some while others quickly point out that they're just doing what others have done before them. And you know what, both sides are right, which shows that Apple is a "good poet" - they take something and make it into something better, or at least different. They weld the theft into a whole of feeling which is unique. Apple wasn't the first to market with a graphic UI, but they transformed the computer market with Mac OS; Apple wasn't the first to market with an MP3 music player, but they transformed the market with the iPod; Apple wasn't the first to market with a smartphone, but they transformed the market with the iPhone; Apple wasn't the first to market with an ultralight laptop, but they've transformed the market with the Macbook Air; Apple wasn't the first to market with a tablet PC, but they've transformed the market with the iPad. The list goes on and on - they may not be the first, but they transform a market when the enter it.

You don't have to like Apple, but you'd be foolish to ignore that TS Elliot's quote is an accurate portrayal of the company's overall approach. And that'

Re:FRAND is a red herring

[stewbacca]

I think your piece is even more relevant now than it was the first time you posted it. In the context of TS Elliot's quote, just look at all the "bad artist" imitators Apple has caused since the original iPod. Most anti-Apple folks will say Apple copied this or that, but if you stop and look back to the start of the iPod/OS X era, you find many more people copying Apple and very few examples of Apple copying the competition. The only area where Apple has dropped the ball in that regard is with iOS 4 to iOS 5. There were a LOT of features in iOS 5 that Android had had for well over a year. But, as you have eloquently suggested, there are a finite amount of implementations, and when "the best" implementation is discovered, you should implement some version of it. Microsoft, for example, sees other's implementations and decide to try to be different, instead of just being good. They have become the "different for different's sake" company and they are failing. People don't want different, they want good.

Re:FRAND is a red herring

[WelshRarebit]

This is poor reasoning. You are deciding an objective fact (whether someone stole ideas from someone else) with a subjective assessment (whether someone is an amateur or a professional). As Apple themselves have demonstrated with their asinine "look and feel" lawsuits, intellectual property law does not work that way. You cannot blow off the accusation of stealing ideas by just pointing out that the end result sold more in the marketplace. If, tomorrow, I were to invent a novel topping for a hamburger and sell the idea to, say, Sonic drive in who sells a million a day and then McDonalds "copies" it and sells a billion a day that McDonalds is the "great artist". It's bullshit and you know it.

Re:FRAND is a red herring

[Anonymous Coward]

Disrupting frand would encourage companies to seek patent reform. Now, only small companies with small pockets and individuals need to wiry about patents.

Re:FRAND is a red herring

[Anonymous Coward]

Like a true brainwashed Apple zealot, forbidding things that you have no defense for.

Yes, Apple stole the GUI and the mouse, Yes, they stole the ideas for a personal computer, laptop, MP3 player, iPod interface, tablets, touchscreen smartphones and they even stole their OS from open source projects.

Re:FRAND is a red herring

[jo_ham]

Like a true brainwashed Apple zealot, forbidding things that you have no defense for.

Yes, Apple stole the GUI and the mouse, Yes, they stole the ideas for a personal computer, laptop, MP3 player, iPod interface, tablets, touchscreen smartphones and they even stole their OS from open source projects.

You certainly have an amusing definition of "steal".

Re:FRAND is a red herring

[sribe]

Even funnier is that Apple and Microsoft, who have completely failed to get licenses for these FRAND patents go around attempting to mug people with knives and start crying like babies when companies like Motorola that have actually done some serious research in their lives pull out a combat shotgun. "Want to make my day?".

They have not "completely failed to get licenses". In one case, they have purchased chips from Qualcomm, who licensed the patents for use in those chips. Later Motorola sent Qualcomm a letter purporting to revoke that license for the chips that Qualcomm was selling to Apple. In other cases, companies (Nokia I think?) have demanded from Apple royalties that far exceed what they charge anyone else and are completely out of line for the patents in question--which of course is exactly what the agreed *not* to do in order to have their patents incorporated into the standards in the first place.

Re:FRAND is a red herring

[Anonymous Coward]

It only seems that way to those within the Apple Reality Distortion Field.

Re:FRAND is a red herring

[DeadCatX2]

Back in 2002, I had an Archos Multimedia Jukebox. It could play MP3s as well as video. Their MP3 only version was circa 2000.

The first generation iPod was released in 2001. The iPod Video was released in 2005.

Apple was NOT the first company to make an MP3 player. Apple was NOT the first company to make portable video players, either. They were behind the curve by one and three years, respectively, against just one company. If you want to get picky, the first flash MP3 players were released circa 1998, so Apple was still three years behind the curve there, too.

Re:FRAND is a red herring

[BronsCon]

free != Open Source
free != Free
Free != Open Source

Just because you can see the source for some piece of software doesn't mean no money changed hands in its creation. Likewise, just because some piece of software is given away at no cost does not mean you can do whatever you want with it. More to the point, just because you can see the source to some piece of software does not mean you can do whatever you want with it.

free == no cost
Free == do whatever you want with it
Open Source == you can see the source

Many paid project are open source, with no license for redistribution. Many free projects are closed source. Many free projects are also Free, meaning you can distrbute them as you see fit, and a number of those are also Open Source.

Re:FRAND is a red herring

[Anonymous Coward]

Just look at the original iPod, it was a bad imitation of the decent ones!

Re:FRAND is a red herring

[Anonymous Coward]

Qualcomm had a license to make the chips, but did that cover anything else, i.e. downstream use? Is FRAND supposed to apply even when the other company "negotiates" in bad faith?

Re:FRAND is a red herring

[Cow Jones]

What people object to is not that Apple is taking good ideas and improving on them, but that they then turn around and try to prevent others from doing the same. "No, these are MY rounded corners. You can't have them. Even if our design was inspired by German industrial designers from the 60s." That's not just silly, it's dishonest and cowardly.

Re:FRAND is a red herring

[stewbacca]

No they weren't the first (not a point I was making or even arguing), but like the TS Elliot quote above, they didn't cheaply copy anyone...they made great products off of ideas that already existed and not just cheap knockoffs. Now everybody is making cheap knock-offs of Apple products (have you seen the iMac competition?).

Re:FRAND is a red herring

[DeadCatX2]

You're right about one thing, they aren't cheap knock-offs. They're expensive knock-offs. As far as "making great products", that's your opinion. My Archos is, IMO, a much better product than the corresponding Apple crap. It has more features, is less frustrating to use, doesn't tie me to any particular piece of software, and it's less expensive to boot.

So let me get this straight. You're allowed to copy a competitor's product, so long as it's more expensive? But if you copy the product and it's less expensive well then you're a thief!

By the way, this case is about Moto, not iMacs. Are you telling me that the Droid is a cheap knock-off of the iPhone, just because it uses "slide to unlock"?

Re:FRAND is a red herring

[stewbacca]

I have a feeling discussing technology with someone who wants to dismiss Apple's contributions is a bit pointless. If you think Apple copied Archos, you have some serous judgment issues. You can cite your Archos all you want, but I'll point you to 10+ years of consumer advocacy reviews that consistently put iPod, iPhone, iMac, and now iPad at the top of their respective categories. Not ALWAYS the best, but usually at the top. Feel free to dismiss Apple as well engineered, but overpriced tech if you want, but to claim there stuff isn't any good, detracts from your credibility, in my opinion.

No, I'm not saying "Droid is a cheap knock-off". I'm saying there are hundreds of cheap knock-offs trying to capitalize off Apple's innovations. Unless, of course, all those companies in the late 90s were furiously coming up with colored translucent plastics at the same time Apple were, and were just slower to market. Or all those laptops on the market that look strikingly like the Macbook Pro, but without the uni-body design or the thin and lightweight form-factor...cheap knock-offs, right down to the awful chiclet keyboards and awful trackpads that are nothing like the Macbook Pros.

Re:FRAND is a red herring

[toriver]

It's NOT about being "first". It's about being good, or even best. Ever wonder why we aren't using the FIRST word prcessor, the FIRST spreadsheet, the FIRST portable computer etc. any more? Or do you actually have an Osborne-1 with WordStar and VisiCalc that you use today? Apple never claimed they were the first so why keep pointing out the obvious?

Re:FRAND is a red herring

[toriver]

Are you a believer in the RDF? It, much like Santa Claus, does not exist.

Apple took the ideas of GUI and mouse and actually did something with it, building on what Jobs saw at Xerox. Xerox never really bothered with it since it did not add to their existing copier business, and many frustrated engineers ended up leaving Xerox for Apple.

How is that in any way bad?

Re:FRAND is a red herring

[tycoex]

1,000 times this. I wish my mod points hadn't expired yesterday.

I think it's totally cool that Apple "steals," and does so in a way that genuinely makes good products with some level of innovation, at least in design.

What I don't think is cool is that Apple steals but then expects other people not to. Either Apple can steal ideas from other people, and other people can steal ideas from Apple, or neither can steal ideas from each other. Apple can't just have the benefit on both sides, being allowed to steal while being impervious from people stealing from them.

Re:FRAND is a red herring

[Anonymous Coward]

You really don't understand the FRAND issue, do you?
Motorola is OBLIGATED to license FRAND covered technologies to anyone who wants it for "fair" terms on per with what they charge others. What Motorola PURPOSEFULLY did is to refuse to license Apple anything reasonable, as a tactic to stop them. They offer something outrageously expensive and then when Apple refuses, they say "see, we tried to license it to them!"

If you could only get your water from one place, and your neighbor gets water at $3/1000 gallons, but when you try to buy some, the water company says "ok that will be at a rate of $3000/1000 gallons", would you accept that as fair?

Re:FRAND is a red herring

[St.Creed]

Internet trolls only come in one size: small. So at worst, it's Chucky.

Re:FRAND is a red herring

[viperidaenz]

Thank you for re-defining English grammar. What happens if I need to use the word "free" at the beginning of a sentence?

Re:FRAND is a red herring

[viperidaenz]

So does the definition of "steal" changes depending on who steals it or what the inventor planed to do with it?

Re:FRAND is a red herring

[fwoop]

Please list with citations what apple has stolen.

If you start with the GUI and the mouse or even mention Xerox you are wrong

Vertical notifications, stolen from Android?

Re:FRAND is a red herring

[rtfa-troll]

"Spending money on research", should actually read 'spending money on researchers'. Microsoft's research deparment is infamous for buying up the best; locking them away in a guilded cage and making sure they never deliver something to the real world. Now that might seem great; the guys get to do fundamental long term research; but these are not physicists. Microsoft typically picks people, like those that started Haskell, who have had very deep theoretical insights and are very close to delivering those to the real world. Their existing research gets blocked and they go off on a tangent.

This adds up to Microsoft actually blocking research in total. It also means that whilst Microsoft does tend to get key patents (also with the aim of blocking innovation), their research doesn't even tend to conribute to their own development. This makes sense, if you think about it, since there's almost no legal way to transform the computing industry to give Microsoft a better position than the one they have already.

Re:FRAND is a red herring

[Anonymous Coward]

Are you a complete nutjob?

Re:FRAND is a red herring

[toriver]

You cannot steal ideas, only take part in sharing them. Apple improved on them (e.g. implementing overlapping windows which the Xerox engineers thought impossible) and made actual products. I think you, like many other hatebois, actually believe the myths that Apple have claimed to invent everything they make. But there is no "we invented this" in the sentence "this is our computer that uses a mouse and a GUI".

Re:FRAND is a red herring

[Tough Love]

"Fair" is newspeak for "cartel".

Re:FRAND is a red herring

[viperidaenz]

So when Samsung took part in sharing ideas with Apple it was completely different?

Re:FRAND is a red herring

[toriver]

Patents protect the use of an idea for commercial purposes, but their real utility is to spread the ideas so that others can "think different" and come up with their own way of doing the same thing, thus bringing industries forward. Samsung chose not to think different.

Re:FRAND is a red herring

[khipu]

Microsoft's research deparment is infamous for buying up the best; locking them away in a guilded cage and making sure they never deliver something to the real world

In different words, Microsoft is spending money on research, as opposed to products.

Microsoft typically picks people, like those that started Haskell, who have had very deep theoretical insights and are very close to delivering those to the real world. Their existing research gets blocked and they go off on a tangent.

Is that the latest conspiracy theory in the Haskell community for why it is failing? Wow, that's just funny.

Re:FRAND is a red herring

[BronsCon]

Ambiguity. We already have to deal with it in many other cases, why not learn to deal with it here?

Re:FRAND is a red herring

[BronsCon]

No, I had my appendix removed on my 5th birthday; therefore, I am not complete. As to whether or not I'm a notjob, my therapist tells me as long as I keep signing checks, I'm perfectly sane.

Once again they dance around the issue

[Anonymous Coward]

Has a court case over patents ever not been settled? Seems to me like they're deliberately avoiding judicial scrutiny by bailing just before software patents are determined to be valid or not.

Re:Once again they dance around the issue

[Anonymous Coward]

Umm....try the Oracle v Google case.

Re:Once again they dance around the issue

[tepples]

Has a court case over patents ever not been settled? Seems to me like they're deliberately avoiding judicial scrutiny by bailing just before software patents are determined to be valid or not.

There was the Bilski case, for one. That went all the way to the Supreme Court.

Biased summary much?

[arkhan_jg]

Motorola has licenced its FRAND patents to many companies, and the price is their standard one. Many other companies in the mobile phone space have reached agreements on those terms - Nokia, Ericsson, RIM, Samsung, LG, and HTC have all done so, for example. However, those companies also have relevant FRAND patents, so everyone cross-licences their patents to each other, allowing them all to operate. They all bring their patents to the table, share them with each other, and crack on with making phones. Those with small patent pools may end up paying the larger players under FRAND terms - anything up to 5% is standard.

Apple doesn't have such radio patents - they haven't been involved in inventing the essential standards for wireless comms, phones etc. So the normal process would be either to pay the standard patent licence fees which FRAND standards involve to 'buy in', or cross-licence some of their own software patents in exchange.

Apple doesn't want to pay any fees at all, let alone a fairly standard 2.5%. They see FRAND and think 'free'. Nor do they want to cross-licence any software patents, as they want to drive all android phones from the marketplace. Apple sued motorola and sought injunctions to stop them selling phones. Same with samsung.

Apple spent years trying to avoid paying nokia's patent licence fees for FRAND patents, and eventually settled the lawsuit - they ended up paying £700m lump sum plus £7 an iphone in licencing costs last year.

It's doubly ironic that Apple castigates samsung for stealing their unique patents which amounts to a black rounded rectangle shape with icons in a grid on it, yet don't see why they should have to pay up to licence FRAND patents that literally are what makes the phone capable of being a phone.

And FRAND doesn't mean you can't sue. It just means you have to offer the same licencing price to everyone first - if they pay that, they're safe. The licencing fee can't be too high - which isn't defined - but up to 5% is standard in the industry. But if someone refuses to licence, and then sues you first? That's hardly a dangerous precedent to sue right back, and motorola is far from the first to do so.

Remember who declared "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong... I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this."

It wasn't Motorola or Samsung.

Re:Biased summary much?

[Anonymous Coward]

Remember who declared "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank, to right this wrong... I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this."

I've gotta believe that Tim Cook is enough of a professional businessman to bury this particular hatchet. It's damaging to both the corporations in question and society as a whole if the Fortune 500 is used as a battleground for personal pissing matches.

Re:Biased summary much?

[Anonymous Coward]

Apple doesn't want to pay any fees at all, let alone a fairly standard 2.5%. They see FRAND and think 'free'.

That's a goddamned lie.

Apple participates in many patent pools themselves, and they have no issue with paying the same license fees as anyone else. Motorola didn't want to license the radio patents to Apple like they do to everyone else, because they want to use them to get Apple to give up all of the iPhone UI patents.

Re:Biased summary much?

[chrb]

Apple participates in many patent pools themselves, and they have no issue with paying the same license fees as anyone else.

Actually that isn't true. In the Nokia vs Apple case, Apple refused to accept the standard pricing and Nokia had to request that the court order them to pay: "all Nokia's asked the court to do is set a price, it's clearly willing to simply accept cash and move on"

Re:Biased summary much?

[whisper_jeff]

I'm not going to quote portions of your post and refute them. What I'm simply going to say is that YOU ARE WRONG. Go read Judge Posner's opinion and judgement and learn something. You are wrong. Some of your fundamental beliefs about (F)RAND patents are outright, incredibly, over-the-top wrong.

Seriously - read Judge Posner's opinion and you will learn something.

Why garbage like your post continues to get modded up when it is clearly, incredibly wrong is beyond me.

Re:Biased summary much?

[whisper_jeff]

You know what - I've decided to actually post a more-detailed reply because posts like yours - and the modding it receives - highlight why Slashdot is becoming less and less valuable. How your post gets modded +5 Informative is beyond me when it shows a gross ignorance that is simply astounding.

We'll start with this:

Apple spent years trying to avoid paying nokia's patent licence fees for FRAND patents...

No. They didn't. Apple disputed the amount required to be paid but was always willing to cut a check. They went to court because they felt Nokia was demanding an inappropriate rate, the courts settled things, and Apple cut the check. Apple didn't attempt to avoid paying anything.

Now, more on-topic:

Apple doesn't want to pay any fees at all, let alone a fairly standard 2.5%.

Fairly standard??? I want you to do a math exercise. If there are 100 patents in a standards essential patent portfolio (that number is one picked by Judge Posner in his opinion and order so I'll go with it as well) and each one garners a 2.5% licensing fee, how much would the entire portfolio cost?

I'm going to assume you're able to recognize the immediate problem right there. If not, I'll quote Judge Posner:

"...if Apple had wanted to license any of the patents in Motorolaâ(TM)s standards-essential portfolio, the license fee would have exceeded the product of the percentage of the portfolio represented by the patent and the value of the entire portfolio. ... âoeGoing for brokeâ is the inescapable characterization of Motorolaâ(TM)s damages claim."

You say 2.5% is "fairly standard" yet simple math would highlight that is an impossibility and Judge Posner characterizes such an effort as "going for broke", making it clear that Motorola's demands for 2.25% was well beyond the norm for a FRAND patent.

Your post is incredibly wrong and ill-informed. I do hope people will take a moment to download Posner's opinion and order and read it. _THAT_ is informative and will help clarify the situation.

I find it sad that Slashdot has fallen so far. There was a time that this site informed me of a great many things within the tech/geek world but the egregious misinformation that is spread is making the site next-to-useless now. The fact that "Informative" might, maybe mean "informative" but more than likely means "I hate that company and this post makes that company look bad so I'm going to mod it up" means the value of this site is vanishing...

Re:Biased summary much?

[whisper_jeff]

Did you even read the article to which you, yourself, linked? It says nothing, at all, about Apple refusing to pay. What it does say is that Apple was going to pay cash, not cross-license patents, and it was unclear what the fair and reasonable cash rate should be (Nokia obviously thought it should be higher than what Apple thought it should be), so they went to court to figure it out. Once figured out, Apple cut the check.

Re:Biased summary much?

[arkhan_jg]

I'm not going to quote portions of your post and refute them. What I'm simply going to say is that YOU ARE WRONG. Go read Judge Posner's opinion and judgement and learn something. You are wrong. Some of your fundamental beliefs about (F)RAND patents are outright, incredibly, over-the-top wrong.

I did read the judgment. Feel free to argue why I'm wrong instead of just stating it like you're the font of all knowledge, and being a bit of a tit about it.

Posner dismisses Motorola's request for an injunction; as being a FRAND patent essential to the UTMS standard that would defacto grant too much power to enforce whatever fee they liked. However he doesn't dismiss that Apple are still required to pay for FRAND licences, and could be required by a court to do so. In this case though, Motorola said that they charge 2.25% (typoed 2.5% in GP post) as a percentage of final device price as standard, regardless of the number of FRAND patents, as different cases could involve 75 or 100 FRAND patents. Given that Posner required both sides to reduce their claim to the smallest number of key patents, Motorola then failed to prove the specific value of that one patent they kept in the trial.

From the judgment:

A FRAND royalty would provide all the relief to which Motorola would be entitled if it proved infringement of the ‘898 patent, and thus it is not entitled to an injunction. In fact neither party is entitled to an injunction. Neither has shown that damages would not be an adequate remedy. True, neither has presented sufficient evidence of damages to with-stand summary judgment—but that is not because damages are impossible to calculate with reasonable certainty and are there-fore an inadequate remedy; it’s because the parties have failed to present enough evidence to create a triable issue. They had an adequate legal remedy but failed to make a prima facie case of how much money, by way of such remedy, they are entitled to. That was a simple failure of proof.

He dismissed Apple's injunction because it would cause more harm to Motorola than Apple would gain, and because it was more harm than the patents were worth. He thought that Apple's claims of costs workarounds for their patents were unproven.

So since neither side was entitled to an injunction, and neither side had proven what those specific patents left were worth in either losses to the plaintiff, or benefit to the defendant, he dismissed the lot.

He certainly didn't say that, in general, failure to pay FRAND licence fees could not be corrected through court assessment and order of payment, he said the exact opposite - which was the main thrust of my post.

Re:Biased summary much?

[whisper_jeff]

Fine - you read it. I'll apologize for being (as you say) a tit about it. But, your claim that 2.25% (correcting for the typo) is "fairly standard" is absolutely wrong and Posner makes a pretty clear point of demonstrating that Motorola's requested royalty rates were excessive.

I strongly suspect that, had Motorola requested fair and reasonable rates for their patents, Apple would have cut them the check. 2.25% is unreasonable by any logical measure. And, to me, this is a point that I am shocked more people aren't outraged by. Motorola requesting royalty rates that are unfair and unreasonable on standards essential patents is the biggest threat to competition within the industry because it means they can outright prevent companies from entering. This is why companies are required to agree to FRAND terms on standards essential patents.

I realize Motorola's enemy is Apple and there's a strong hate-on for Apple right now on Slashdot but Motorola's actions are ... bad. I don't understand why more people don't recognize this, regardless of who they're doing it to...

Re:Biased summary much?

[arkhan_jg]

You know what - I've decided to actually post a more-detailed reply because posts like yours - and the modding it receives - highlight why Slashdot is becoming less and less valuable. How your post gets modded +5 Informative is beyond me when it shows a gross ignorance that is simply astounding.

Well I'm glad you've decided to actually participate instead of just slinging insults. Not least because it demonstrates that you yourself are wrong. I did read the judgment, by the way.

They went to court because they felt Nokia was demanding an inappropriate rate. Which is what I said. They refused to pay nokia's standard rate between 2007 and 2011. That's 4 years. Nokia took them to court to make them pay, and then settled before judgement was reached. Both back payments, and approximately 1.5% of final device cost on every device. Apple could have paid up years earlier, but decided the same rate everyone else paid was too high.

You say 2.5% is "fairly standard" yet simple math would highlight that is an impossibility and Judge Posner characterizes such an effort as "going for broke", making it clear that Motorola's demands for 2.25% was well beyond the norm for a FRAND patent.

Motorola charge 2.25% (typoed 2.5% in GP post) for their entire FRAND patent portfolio as the standard rate - as it can involve 75 or 100 patents. What they failed to do is show the value of this one specific patent that the judge required them to reduce the case to.

From Motorola's evidence:

"One patent is 1 percent of 100 patents and 1 per-cent of $700 million is $7 million. But according to Donohoe’s declaration, the license fee for that single patent, if licensed on its own rather than as part of a package deal that comprised the entire portfolio, would be “up to” 40 to 50 percent of the royalty for the entire portfolio—that is, up to $350 million."

Because motorola don't licence the patents individually, but as part of a large pool; and some of the patents are worth more than others. But in this case, they didn't break down the precise value of the one patent left out in the case as ordered by the judge. (And neither did Apple present usable evidence as to the actual value of their patents)

"How to pick the right non-linear royalty? Donohoe’s declaration does not answer that essential question, and there is no suggestion that any other witness can answer it."

And also from the judgment:

"A FRAND royalty would provide all the relief to which Motorola would be entitled if it proved infringement of the ‘898 patent, and thus it is not entitled to an injunction. In fact neither party is entitled to an injunction. Neither has shown that damages would not be an adequate remedy. True, neither has presented sufficient evidence of damages to with-stand summary judgment—but that is not because damages are impossible to calculate with reasonable certainty and are there-fore an inadequate remedy; it’s because the parties have failed to present enough evidence to create a triable issue. They had an adequate legal remedy but failed to make a prima facie case of how much money, by way of such remedy, they are entitled to. That was a simple failure of proof."

FRAND patents are still worth money. How much money one specific FRAND patent was worth as opposed to the whole pool was not proven in the case, and thus, dismissed. Apple's patents were not properly quantified in value either, so also were dismissed.

I stand entirely by my original post. There's no reason that you can't sue over FRAND patents if a company refuses to pay the same licence fees you charge everyone else - and it's up to the court to decide if that value is fair or not. It doesn't doom the entire industry if a company does so, but it does waste a vast amount of time, money and harm customers when one or two software companies want into the phone business, but don't want to pay the companies that literally invented the hardware chips that made it possible.

Re:Biased summary much?

[drinkypoo]

FRAND doesn't mean you can't sue. It just means you have to offer the same licencing price to everyone first - if they pay that, they're safe. The licencing fee can't be too high - which isn't defined - but up to 5% is standard in the industry. But if someone refuses to licence, and then sues you first? That's hardly a dangerous precedent to sue right back, and motorola is far from the first to do so.

This is exactly what I wanted to say when I read the summary. The whole idea of a FRAND pool is that you can sue people who don't join it!

Re:Biased summary much?

[drinkypoo]

Fine - you read it. I'll apologize for being (as you say) a tit about it. But, your claim that 2.25% (correcting for the typo) is "fairly standard" is absolutely wrong

[citation needed]

The closest I have come is allegations that Microsoft asserted in court once that a reasonable price was 0.02%, not 2.25%. But I can find no citations for this statement, probably because the blogosphere is filled with dumbshits all parroting the same unfounded article, sans citations. I found the root article they're all quoting and it has no citations either. Unless you can provide one, you're just speculating. Normally people pay NOTHING to use a FRAND patent, because they're part of the pool. Apple hasn't created anything critical to tablets or phones (although they've managed to get some patents on things other people have created, like pinch zoom... not critical) and they want prejudicial access to the FRAND pool anyway.

Motorola's actions are EXACTLY WHAT A PATENT POOL IS FOR. Apple is suing Motorola over bullshit patents that they shouldn't even have been granted and Motorola is striking back with real patents that they really were granted that Apple hasn't met licensing terms for.

Re:Biased summary much?

[Anonymous Coward]

[citation needed]

Beating needed.

Re:Biased summary much?

[Anonymous Coward]

I hear this 2.5%, 5%, etc. thing and all of can think of is "this is a racket". It should be stopped. This is a licensing fee. Pure and simple. Why should it be a different fee for different retail price points? If I use the same chip in a cheap $100 phone as I do in a $600 phone, why would I pay 6 times as much in licensing fees for the same chip ? It obviously isn't that radio in that chip that made the nice phone worth more that the cheap phone. That would be almost like buying a DVD (which is, after all, a license plus a piece of plastic) and being told that you need to tell them how much you make per year so they can figure out how much you owe instead of just paying a standard $15 fee. I understand that, under our current system, patents mean you get to charge fees. But those fees should not be percentages of the retail price. It should be very simple: for each unit you build using our patent you pay us x - where x is constant.

Re:Biased summary much?

[Carewolf]

No. Apple's case was that the chip-manufacturer had already paid the license and that Nokia was double dipping. So there was a difference in how much Apple would pay and what Nokia demanded. Nokia demanded something, and Apple offered to pay nothing.

The end settlement is secret, but seeing as Nokia has not been counter-sued by Apple it probably contains a cross-license agreement on top of $x per iPhone.

Re:Biased summary much?

[whisper_jeff]

I believe you are confusing the Samsung v Apple case with the Nokia case. Samsung is attempting to double-dip and get paid by Quallcomm for the chips and from Apple for using those chips.

Re:Biased summary much?

[drkstr1]

While i agree that rent seeking behavior is "racket," what you propose could potentially make low budget hardware cost prohibitive. At the very least, the floor price would be set by lawyers, rather than the actual cost of production.

Re:Biased summary much?

[jo_ham]

+5 informative for the parent comment?

*shakes head sadly in despair and looks for the "I don't want to live on this planet any more" meme*

I take it you get all of your news from slashdot comments exclusively?

Re:Biased summary much?

[jo_ham]

FRAND doesn't mean you can't sue. It just means you have to offer the same licencing price to everyone first - if they pay that, they're safe. The licencing fee can't be too high - which isn't defined - but up to 5% is standard in the industry. But if someone refuses to licence, and then sues you first? That's hardly a dangerous precedent to sue right back, and motorola is far from the first to do so.

This is exactly what I wanted to say when I read the summary. The whole idea of a FRAND pool is that you can sue people who don't join it!

No, it really isn't. The whole idea is to enable a global standard (like, say 3G) to exist that requires patented technology to work effectively while simultaneously preventing market abuse by those who control those patents. They pool them and agree to abide by the specific FRAND terms involved in exchange for their particular patent being included (and thus assuring a return on investment through royalty payments).

The idea is set up precisely so that someone with no patents in the pool (for example, Apple) can use the technology to make a product (for example, a smartphone) without the current incumbent market leaders being able to force them out of the market that *requires* you use their patented technology by demanding unfair licensing rates (say, 2.5% of the product revenue).

It was not designed to allow the pool participants to dredge up an exception to the pool after a competitor gets in nice and deep and start suing them over it for "obviously infringing" - of course they are - the patent is part of the unavoidable, obligated-to-use pool! That's why you can't use it to sue someone with, assuming they pay the licensing cost (which Apple has done in all cases, give or take some arguing with Nokia over the cash value of some of the patents in the pool).

Re:Biased summary much?

[chrb]

Apple refused to accept the standard pricing

Did you even read the article to which you, yourself, linked? It says nothing, at all, about Apple refusing to pay.

I didn't say that Apple refused to pay *anything at all* - I said that they refused to pay the standard license fees of Nokia:

And finally, Apple can just pay. We spoke to several experts in the field during the course of our research into this piece, and almost all of them were surprised that Apple hadn't already coughed up the green. Again, we don't know the royalty rates Nokia's demanding, but it's a little strange that Apple isn't using its enormous cash reserves to just make this disappear. The main issue we can see is that whatever rate gets set in this case will be the basis of all future license negotiations, and Apple's got to be careful with that -- unlike almost every other company in the space, it's become a major player in the phone market virtually overnight, and setting this precedent properly is an important step. That said, Nokia's got to feel pretty good about the rates they've offered Apple here -- filing a lawsuit means Nokia's license agreements with other companies will eventually be examined, so it'll be obvious right away if Espoo's not offering similar terms to Cupertino. Let's just say this: it's not going to happen anytime soon, but we wouldn't be surprised if Steve ends up writing a check somewhere down the line.

So we don't know exactly what the requested license rate was, but we can infer from the fact that Nokia were the ones filing the case and requesting a cash settlement that they were confident their fee offer to Apple was comparable to those of other licensees.

Re:Biased summary much?

[X.25]

That's a goddamned lie.

Apple participates in many patent pools themselves, and they have no issue with paying the same license fees as anyone else. Motorola didn't want to license the radio patents to Apple like they do to everyone else, because they want to use them to get Apple to give up all of the iPhone UI patents.

You should be modded VERY FUNNY.

Re:Biased summary much?

[chrb]

Apple disputed the amount required to be paid but was always willing to cut a check.

If you dispute the amount to be paid, then you aren't willing to pay that amount. It is disingenuous and contradictory to suggest that Apple were willing to pay but only at a lower rate. I'm willing to pay $1 for a Ferrari - does this mean that Ferrari have to sell me one at that price? No.

If there are 100 patents in a standards essential patent portfolio ... and each one garners a 2.5% licensing fee, how much would the entire portfolio cost?

The license fee is for the whole portfolio, not per-patent. That's $18.75 per device for every iPhone. Compared to Microsoft's patent fee of $15 for every Samsung Android phone it looks like a reasonable deal - Samsung Android phones are generally lower priced than iPhones, and Motorola holds more phone-related patents.

Re:Biased summary much?

[Anonymous Coward]

This is the most eloquent description of this I've seen - It's absolutely correct. The 'old' school of Motorola, Nokia, Ericsson have licensed FRAND patents for years, and it works fine. Apple comes to the table with nothing tremendously useful or required for building a cell phone, and whines that nobody will cross license their required patents for a song. Apple always has had an attitude that they don't have to play by the same rules as everyone else. Dismissing Apple's claims makes sense. Dismissing Motorola's is kind of ridiculous.

Sadly, this is more a win for Apple than for the side of sanity, right and good.

Re:Biased summary much?

[Anonymous Coward]

Motorola's actions are EXACTLY WHAT A PATENT POOL IS FOR. Apple is suing Motorola over bullshit patents that they shouldn't even have been granted and Motorola is striking back with real patents that they really were granted that Apple hasn't met licensing terms for.

Redefining "How much money should it cost?" to "That's what patent pool are for!" is a nice way to avoid the issue at hand. FRAND is about monetary costs to use a standard, anything else is bullshit to mask that fact.

Re:Biased summary much?

[DeadCatX2]

GP was even more disingenuous than you think.

Moto was asking for 40%-50% of the portfolio royalty rate for licensing just one patent from the portfolio. So instead of $18.75, it would be more like $9.37.

Re:Biased summary much?

[Anonymous Coward]

He doesn't seem to be redefining anything (and if he is [citatation needed]), just a bunch of Apple fanboys with no clue about how fucked up the industry is (while ignoring how fucked Apple's actions are).

Biased quoting much?

[Anonymous Coward]

If you're going to quote, quote the reason why.

Of course, lawsuits are usually made to be settled, but Jobs was having none of it. Meeting with then-Google CEO Eric Schmidt, a man who for years sat on Apple's board before Android made that no longer possible, Jobs told Schmidt that money wasn't going to make it right. "I don't want your money. If you offer me $5 billion, I won't want it," Jobs reportedly said. "I've got plenty of money. I want you to stop using our ideas in Android, that's all I want." And with that, the door to any possible settlement was slammed shut.

Re:Biased quoting much?

[Anonymous Coward]

Excellent.

So, when is apple going to stop using everyone elses technology?
For example,all these radio technology patents?

And really people, why do idiots seem to think apple has a stronger case with 'slide to unlock', roundtangles, and touch-to-launch than massivly complex radio standards that took decades of indepth research in to wireless systems to develop?

APPLE are starting to play desperate here, as was inevitable when they decided they were going to 'own' an area of technology they had no positioning in..

Re:Biased quoting much?

[Rich0]

Slide to Unlock - It's not apples fault it was patented, they're using the system that that's there to be used. It's a crap system, but it's the one their is and that isn't apples fault.

The thing is, none of the other major vendors has been doing that with phones. I don't see vendors suing each other over having green call and red disconnect buttons, and so on. I'm sure one of the vendors had that first.

Just because a system allows you to be a sociopath doesn't mean I can't call you one when you abuse it.

There's some guy living in a home down the street. I have never met him and have no idea if he is a nice guy or not. I can probably ruin his day by filing a lawsuit against him right now for some creatively-devised offense. It probably costs me all of $50 to do it if I'm willing to put in the time, and it will cost him thousands of dollars to fight off. Oh, I doubt I'll get anything for it, but I can certainly ruin his day, and there isn't a thing in the world he can do about it, and it is perfectly legal.

So why don't I do it, even if the guy cuts me off on the road? Simple, I'm not a sociopath. If I were to start acting like one then I'd expect those around me to call me out on it (well, if I really were a sociopath I might not expect them to, but they'd be just as right to do it).

What is legal has nothing to do with what is right. Being evil is a choice.

Re:Biased quoting much?

[realityimpaired]

and there isn't a thing in the world he can do about it, and it is perfectly legal.

He can't stop you from filing, but he can get it dismissed with prejudice, with an order that you have to pay his legal fees. Ultimately it costs him nothing, but it's still a pain in the ass to reach that point.

Re:Biased quoting much?

[MrHanky]

"Ultimately", it may cost him nothing. Initially, it might be too expensive to fight.

Re:Biased quoting much?

[WindBourne]

Spoken by a man who stole many an ideas over his time (and note, that I liked jobs)

Re:Biased quoting much?

[rtfa-troll]

He can't stop you from filing, but he can get it dismissed with prejudice, with an order that you have to pay his legal fees. Ultimately it costs him nothing, but it's still a pain in the ass to reach that point.

This is not quite as simple as it seems. If your case is even somewhat reasonable then costs aren't normally awarded in either direction. All you have to do is claim that your neigbour made a persistent noise whenever you were the only person nearby and nobody can prove it either way. Even once you do get costs awarded, you will often find that it's "reasonable" costs and that the person paying can get at least some of what you have done excluded ("Why did you need to use a courier to hand-deliver the letter? the mail would be cheaper.")

This tends to be done by rich assholes for whom even the whole of your costs is pretty much nothing. They don't care about paying a few kilo dollars. The people they do this to tend to be poor people for whom even having to do that temporarily is problem. Around where I live the local asshole is a lawyer who represents himself and so really doesn't care. It seems he wins just often enough to cover his costs from all the other cases he does and anyway it provides entertainment for the junior members of his practice when they are low on other cases.

Re:Biased quoting much?

[jo_ham]

Excellent.

So, when is apple going to stop using everyone elses technology?
For example,all these radio technology patents?

And really people, why do idiots seem to think apple has a stronger case with 'slide to unlock', roundtangles, and touch-to-launch than massivly complex radio standards that took decades of indepth research in to wireless systems to develop?

APPLE are starting to play desperate here, as was inevitable when they decided they were going to 'own' an area of technology they had no positioning in..

They're not, because they paid to use it. They have licensed the radio technology they use in the iPhone, just like every other phone manufacturer.

There's a difference between that and ripping off ideas wholesale and not licensing them. Whether you agree or not if Google did that with Android (personally, I don't really think so) does not mean you can call Apple hypocritical for claiming it while they themselves used other technology they have actually licensed.

Re:Biased quoting much?

[Anonymous Coward]

If they had it licensed there could be no "FRAND abuse", Apple's lawyers would pull their license and tell them to go take a hike. Now unless you are implying that they are completely incompetent, please stop spreading rumors.

Re:Biased quoting much?

[jo_ham]

If they had it licensed there could be no "FRAND abuse", Apple's lawyers would pull their license and tell them to go take a hike. Now unless you are implying that they are completely incompetent, please stop spreading rumors.

That's exactly what I'm saying. Either Motorola sat on this for 5 years or they were incompetent. Or they simply went grasping for straws after Apple sued them.

I find it almost impossible to believe Motorola would let this go for half a decade (in the face of Apple's huge rise in the mobile space) unless they either didn't know what they'd licensed or they changed their mind about what was covered, or they deliberately held it back but didn't tell Apple so they'd have an ace up their sleeve to countersue them with in the event of a lawsuit battle.

Re:Biased quoting much?

[toriver]

You CANNOT steal ideas, only take part in their sharing. If I have an idea, and I tell it to you, and you do something with the idea, I still have the idea too.

Re:Biased quoting much?

[Rich0]

Yup, those were my thoughts. As long as you're not obvious about being a vexatious litigant you can make things pretty painful.

When you've filed your 5th nuisance lawsuit the courts might block you from filing more, and maybe then award costs. However, if you keep everything plausible on the surface you can cause somebody huge headaches even if it is dismissed with prejudice every time.

The fact that our legal system is broken in this way is a whole separate matter - it ought to be reformed. However, in my eyes that doesn't excuse those who abuse it.

Re:Biased quoting much?

[Branciforte]

Actually, he could come out ahead. He can file a counter-claim against you for "barristry". That's when you file against someone without a reasonable belief that you have a valid claim. He could collect damages.

Re:Biased quoting much?

[Rich0]

The burden of proof would be on him to prove that my intent is malicious.

I never said I'd sue him for being ugly. I just need to make a claim that is plausible, if not provable.

Re:Biased quoting much?

[Branciforte]

It doesn't matter what your intent was. You are free to file a claim with whatever intent you want, but if you have no evidence to back it up, you are subject to a counter-claim.

Re:Biased quoting much?

[Rich0]

Well, you can file a counter claim whether I have no evidence or not. The issue is that to prevail on your counter-claim YOU need evidence to back it up (the burden of proof shifts).

You can defeat by claims by pointing out a lack of evidence. However, that same lack of evidence is not sufficient on its own to prevail on a counterclaim of vexatious litigation. You need to demonstrate that my suit was somehow frivolous.

From what I've seen in the legal system judges are very reluctant to award costs to defendants - the case needs to be VERY obviously one of malice to get anything.

Patent portfolio not so great, aktsually...

[Areyoukiddingme]

Isn't this bad news for all of those companies who think they've built a huge defensive portfolio of patents to use in countersuits? Even fairly legitimate patents at that. The disinterested observer doesn't have to work very hard to conclude that Motorola's patents are fundamental to cellular phones and are therefore very valuable, while Apple's software patents are worthless duplicates of other people's ideas that shouldn't even be eligible for patent protection in the first place. Despite this enormous disparity, Motorola's countersuit, intended to defend themselves against Apple's foray into legal brigandage, is also dismissed with prejudice. So the fundamental hardware patents they own are useless to them as a defensive mechanism.

Motorola has to be very unhappy right now. Even if their fundamental hardware patents are legitimate and valuable, one of the world's largest smartphone manufacturers has successfully avoided paying royalties for them, forever.

So giant patent portfolios are worth... what, exactly?

Re:Patent portfolio not so great, aktsually...

[Anonymous Coward]

Actually, they haven't avoided paying royalties forever. He specifically states in the ruling that Apple could be required to pay the 2.25% rate or in fact higher if the case was filed with the information required to make that judgement. But it wasn't, and Motorola kept dodging the requests for proof of damages (as did Apple), so he told them both to go home.

They can appeal, provide the correct information, and then they will carry on regardless.

Re:Patent portfolio not so great, aktsually...

[value_added]

Apple's foray into legal brigandage

Well done, sir!

For the kids following along at home, here's the etymology according Wikipedia :

The brigand is supposed to derive his name from the Old French brigan, which is a form of the Italian brigante, an irregular or partisan soldier. There can be no doubt as to the origin of the word bandit, which has the same meaning. In Italy, which is not unjustly considered the home of the most accomplished European brigands, a bandito was a man declared outlaw by proclamation, or bando, [3][4] called in Scotland "a decree of horning" because it was delivered by a blast of a horn at the town cross.

The brigand, therefore, is the outlaw who conducts warfare after the manner of an irregular or partisan soldier by skirmishes and surprises, who makes the war support itself by plunder, by extorting blackmail, by capturing prisoners and holding them to ransom, who enforces his demands by violence, and kills the prisoners who cannot pay.

Misjudged FRAND patents

[mikmach]

I feel that most people don't really understand idea behind FRAND patents. It had two objectives:

1) Prevent war between 'gorillas'. All of them were putting major resources into R&D in hardware and FRAND patents allow them to share knowledge without heavy fighting of negotiations which would only filled lawyers pockets

2) Lower barriers for small players. With FRAND they can license necessary technology without breaking budget and allow to concentrate on product.

Now we have third situation: gorilla enters the fray and want to use FRAND system without paying entry fee (resources put into R&D). It is Apple which abuses FRAND system, not Motorola, Nokia, etc. If it wants to not be treated with contempt it should put their 'design patents' into FRAND pool.

Re:Misjudged FRAND patents

[whisper_jeff]

It is Apple which abuses FRAND system, not Motorola, Nokia, etc.

Seriously, I don't care what you think about Apple - hate them all you want - but they are not abusing FRAND patents. They are refusing to pay excessive licensing fees on FRAND patents, which is entirely reasonable given that excessive licensing fees do not adhere to the requirements of FRAND patents. Motorola (and Samsung) are abusing FRAND patents by demanding excessive rates from one specific company, which is directly in opposition of the intent of FRAND patent requirements.

Seriously, please don't take my word for it - read Judge Posner's opinion and order and you will clearly see he feels that Motorola was asking for excessive (by a wide margin) licensing fees for their FRAND patents.

You don't have to like Apple if you don't want to but don't let that dislike of Apple delude you into thinking that they are being wronged by Motorola (and Samsung). Just because they have deep pockets doesn't mean they should pay a higher license rate - that would be discriminatory licensing which is counter to the Non-Discriminatory part of FRAND.

Go read Posner's opinion and order - don't take my word for it - take the judge's word for it.

Re:Misjudged FRAND patents

[Anonymous Coward]

You might be right about Apple and FRAND but don't forget Apple is suing everyone claiming they are in violation of their dubious patents...

Re:Misjudged FRAND patents

[Anonymous Coward]

One feels that your position of "I'm not going to waste time explaining this to you" is somewhat nullified by the fact that you keep on posting it over and over again. You could probably have explained it by now and spent less time on this - which makes me think that you don't want to for some reason. Oh wait, this is why - you're being disingenuous, because it doesn't state any such thing in Posner's judgement. If you can point out exactly where this appears, feel free.

In essence, Posner is saying nothing other than that neither side can prove damages based off the infringements of these patents because in essence there probably aren't any, so he can't justify an injunction at all, and the court won't tolerate them trying again.

Re:Misjudged FRAND patents

[DeadCatX2]

Can you point me to the page number in the written opinion where the Judge says that Motorola's requested licensing rate was excessive?

For that matter, what licensing rate was Motorola asking for?

What's the min, max, mean, median, and standard deviation of licensing rates for a FRAND patent to a company which is not cross-licensing any of its own patents?

Re:Misjudged FRAND patents

[whisper_jeff]

Motorola wasn't entirely clear about the rate they were requesting though the number 2.25% was thrown about. Start reading at the bottom of page 15 and the next few pages will make it clear that Posner felt that Motorola's requested rates were a) wishy-washy and b) excessive.

Re:Misjudged FRAND patents

[Macthorpe]

Posner only said that they weren't being clear in what damages they were, not that they were excessive. In fact, he specifically points out that Apple are running the risk of being ordered to pay that amount or more by the court.

Re:Misjudged FRAND patents

[whisper_jeff]

...if Apple had wanted to license any of the patents in Motorolaâ(TM)s standards-essential portfolio, the license fee would have exceeded the product of the percentage of the portfolio represented by the patent and the value of the entire portfolio.

Re:Misjudged FRAND patents

[DeadCatX2]

Yeah, and if I were to buy Half-Life 2, Half-Life 2: Episode One, Portal, Half-Life 2: Episode Two, and Team Fortress 2 on Steam, it would also be more expensive than buying the Orange Box.

Price of Individual Games: $35.96
Price of Bundle: $19.99

Imagine that. The sum cost of the games exceeds the cost of the bundle. It's almost as if there's a discount on buying the whole package, and buying just an individual game would therefore be more expensive.

In fact, JUST HL2 is $9.99. This one game represents about 50% of the cost of the bundle of 5 games, which "exceeds the product of the percentage of the" bundle "and the value of the entire" bundle.

Hmmm....what did I just find in the Judge's ruling? From page 16 of the ruling...

But according to Donohoe’s declaration, the license fee for that single patent, if licensed on its own rather than as part of a package deal that comprised the entire portfolio, would be “up to” 40 to 50 percent of the royalty for the entire portfolio—that is, up to $350 million.

Re:Misjudged FRAND patents

[DeadCatX2]

Motorola wasn't entirely clear about the rate they were requesting though the number 2.25% was thrown about.

From the Judge's opinion, page 17.

Though it’s the only patent in the portfolio that remains in this suit, Motorola claims to be entitled to damages equal to (or “up to,” or “at least”—it seems not to have made up its mind) 40 to 50 percent of 2.25 percent, which would be 0.9 to 1.125 percent of sales of Apple devices that infringe the ‘898.

Re:Misjudged FRAND patents

[DeadCatX2]

This seems to be my reading of the ruling, as well. Motorola was unable to show the Judge why *any* rate was reasonable. So now the Judge has gone and said that Motorola is not entitled to any rate at all.

In a way this is actually quite troublesome. Motorola is entitled to SOMETHING for the R&D and time and effort that went into developing those patents. That's part of what FRAND means - "free" is not "fair". Now that the case has been dismissed with prejudice, it appears that Apple will have free reign to implement the '898 patent without paying Motorola anything, ever.

Now anyone can basically steal FRAND-patented technology, and as long as you don't infringe on the entire portfolio you can basically get away with it scot-free. I would expect that companies will now be less willing to let their patents become part of a standard because it essentially makes them worthless, and I'm afraid this will hinder innovation by making it more difficult for standards to emerge.

Re:Misjudged FRAND patents

[Macthorpe]

Yes. He's saying that providing an estimate of the license fee for one patent in and of itself does not prove the amount of damages Motorola requires, essentially because of the ambiguity between the price of a single patent and the price of the collective patents aren't exactly the same. FRAND makes no rule nor mention of how much individual patents should cost when licensed outside of the pool, which is essential as the other patents were dismissed from the case.

He made no value judgement as to whether he considered the higher price for a single patent was fair or not. He certainly didn't use the word excessive. To exceed something, and to be excessive, are two different things with different connotations.

Re:Misjudged FRAND patents

[Anonymous Coward]

Apple have no radio patents to add to the FRAND pool to buy-in, therefore they have to pay the full monetary amount. Apple having been stealing other companies' tech for years, using "too expensive licensing" excuses, and not cough up. No patents and no money given, but still expect to be able to use decades of real R&D made by others. Hmmm. Get your facts right, you sound like a typical blind Apple zealot.

Re:Misjudged FRAND patents

[Anonymous Coward]

Touché. (I'm not the GP)

Re:Misjudged FRAND patents

[Anonymous Coward]

No, Apple is not paying ANYTHING for these specific FRAND patents. They think everything goes one way. They patent trivial or obvious crap, like "rounded corner rectangles" but think they're exempt from paying for real technology that everyone pays for. They're greedy slime.

Re:Misjudged FRAND patents

[jo_ham]

I feel that most people don't really understand idea behind FRAND patents. It had two objectives:

1) Prevent war between 'gorillas'. All of them were putting major resources into R&D in hardware and FRAND patents allow them to share knowledge without heavy fighting of negotiations which would only filled lawyers pockets

2) Lower barriers for small players. With FRAND they can license necessary technology without breaking budget and allow to concentrate on product.

Now we have third situation: gorilla enters the fray and want to use FRAND system without paying entry fee (resources put into R&D). It is Apple which abuses FRAND system, not Motorola, Nokia, etc. If it wants to not be treated with contempt it should put their 'design patents' into FRAND pool.

All correct, except the part about Apple not wanting to pay. Apple is covered under point 2, except they are not a "small player" just one that has no patents in the pool. They have always maintained that they will pay the FRAND rates for the pools in question (and have done so), just not by cross licensing any patents of their own. They are not obligated to cross licence, merely to pay the FRAND rate. It's unusual to pay in cash, since most companies don't have large cash reserves, and it's often better to simply cross licence assets, but it is allowed. There was an argument over exactly what that cash rate should be (between Nokia and Apple) but there was never any indication at any time that Apple did not want to pay. It is obvious to anyone that they need to licence the patents that they are obligated to use to make a compatible cellular phone.

Why would they put their design patents into a FRAND pool? I don't think you really understand why such a pool exists. The design of an object is not something that requires everyone who wants to make an object has to use, unlike the 3G standard which is a vital part of a phone. If a standards body were to set up a FRAND pool for Apple's design patents then what they are effectively saying is "it is impossible to make a smartphone unless it looks exactly like an iPhone, so everyone must licence these patents". It would be similar to forcing all of the car companies to put all of their design patents over the body shape and design of their cars because they all have four wheels and an engine.

Re:Misjudged FRAND patents

[jo_ham]

Apple have no radio patents to add to the FRAND pool to buy-in, therefore they have to pay the full monetary amount. Apple having been stealing other companies' tech for years, using "too expensive licensing" excuses, and not cough up. No patents and no money given, but still expect to be able to use decades of real R&D made by others. Hmmm. Get your facts right, you sound like a typical blind Apple zealot.

You should also get your "facts straight" (and also log in).

Apple are willing to pay the FRAND rates. They're just not willing to pay considerably more than anyone else because they are turning out to be a strong competitor to those who hold patents in the pool (you know, the entire design of the FRAND system).

What Motorola did was a dangerous thing for anyone else, even if you hate Apple with the passion of a thousand burning suns, if Motorola had managed to successfully sue them using a FRAND patent that they had already paid for as part of a deal, and get them to pay 2.5% (!!) of their revenue from "infringing" products then anyone who is licensing a FRAND patent on any technology would find themselves in a seriously vulnerable position; upset those who have patents in the pool and they'll simply ignore the legal contract that protects you from lawsuits and sue you.

Hate Apple as much as you like. Froth and wail and scream about boycotting them. Gnash your teeth about they're the worst thing to happen to the world since religion, but be careful what you wish for when one of their competitors attempts to "punish" them by abusing a FRAND patent because it could change the legal landscape for a company or organisation you *do* give a shit about.

Re:Misjudged FRAND patents

[DeadCatX2]

if Motorola had managed to successfully sue them using a FRAND patent that they had already paid for as part of a deal

Do you have any proof that Apple has already paid for any license for Motorola's FRAND patents? I was under the impression that Apple has not licensed any of Moto's FRAND patents.

Do you have any proof that Motorola was asking for "considerably more than anyone else"? I believe I've seen a figure somewhere that said Apple pays Nokia a royalty of 1.5%, which is actually less than the 1.125% "upper bound" that Moto was asking for.

Re:Misjudged FRAND patents

[jo_ham]

if Motorola had managed to successfully sue them using a FRAND patent that they had already paid for as part of a deal

Do you have any proof that Apple has already paid for any license for Motorola's FRAND patents? I was under the impression that Apple has not licensed any of Moto's FRAND patents.

Do you have any proof that Motorola was asking for "considerably more than anyone else"? I believe I've seen a figure somewhere that said Apple pays Nokia a royalty of 1.5%, which is actually less than the 1.125% "upper bound" that Moto was asking for.

Not direct proof, no; no one is privy to the actual deals except Apple and Motorola themselves, but it sure did take Motorola a long time to come along with this supposed "unlicensed" patent, and it arrived at a highly convenient time. Apple have been using the 3G patent pool since around 2008 (possibly earlier, depending on the specific radio chipsets they used in the original first gen iPhone) and they use a common radio platform. If they weren't all squared away with the licensing for 5 years then either Motorola were incompetent about keeping up with it, or they decided to turn one of their FRAND patents into a submarine patent because Apple decided to be difficult and sue them over something else.

The 3G pool is mature and well established, and used and licensed by an enormous number of manufacturers. To claim that *only Apple* was missing a license deal on a single patent, discovered after five years just doesn't really stand up. All sides have teams of lawyers that pore over the details of something as large as licensing a standard like 3G for the release of a product with such a serious investment going into it. Either Apple's lawyers believed that the patent in question was covered as part of their deal (there is no way they'd simply "let is slide" if they had any doubt at all over whether it was licensed properly) or Motorola sat on it for 5 years until they could use it strategically. Or Motorola simply decided recently to use it to sue Apple.

With the attention to detail that goes into these sorts of things from all sides I simply can't see it being simply overlooked by both sides for so long. The other alternative is that they've been negotiating the fee for five years with no success, but Apple did not mention anything like that in their defence - they believe that they were already covered.

Honestly, I have no idea who is at fault - it could be Apple, it could be Motorola, or it could be six of one and half a dozen of the other. What I do know is that the patent is in the FRAND pool by Motorola's own admission - it was key to their proof that Apple was infringing - and that demanding excessive royalties (in the words of the presiding judge) is simply not ok. It breaks the entire FRAND system if one of the pool owners can decide at any time to demand an "infringing" party pay over the odds for its use.

Even if we assume that Apple were infringing (and again, I have no idea but I suspect they believed they were not and had already paid the correct fee), then they need to licence it for the same rate as everyone else, and Motorola were clearly asking for far more than that.

Re:Misjudged FRAND patents

[DeadCatX2]

Not direct proof, no; no one is privy to the actual deals except Apple and Motorola themselves, but it sure did take Motorola a long time to come along with this supposed "unlicensed" patent

How on earth could Apple infringe on a patent that they have a license to? Do you realize how nonsensical this sounds? We may not be privy to the details of licensing but knowing whether there is a license or not is something we should be able to discover.

As far as why they waited so long, that's because Moto was trying to get Apple to license their patents and Apple was dragging their feet for years. Just like they did with Nokia. Moto's been trying to get Apple to license their patents for quite some time. I'm sure had Moto gone straight for the lawsuit, you'd be here decrying how they should try to get a licensing deal before going to court.

Can you point me to anywhere that Apple says they believed they were covered? Because I'm not seeing any of it in the ruling.

It breaks the entire FRAND system if one of the pool owners can decide at any time to demand an "infringing" party pay over the odds for its use.

It breaks the entire FRAND system if anyone can use the patents from the pool without licensing them. If you have a license to the pool, then there's no way you can be sued.

demanding excessive royalties (in the words of the presiding judge)

I keep seeing people say that, but I haven't found it anywhere in the Judge's opinion that Moto was asking for "excessive royalties". Can you tell me what page of the opinion you read that on?

The argument I saw was that Moto was suing for damages, but they couldn't convince the Judge on how they would use the licensing fees to determine reasonable damages. Nothing I read in the opinion said that Moto's rate was excessive or unfair; the Judge's argument is only in reference to calculating damages.

You could try page 20 of the Ruling...

But Apple’s refusal to negotiate for a license (if it did refuse—the parties offer competing accounts, unnecessary for me to resolve, of why negotiations broke down) was not a defense to a claim by Motorola for a FRAND royalty. If Apple said no to 2.25 percent, it ran the risk of being ordered by a court to pay an equal or even higher royalty rate

The bolded part implies that Moto's 2.25% rate is reasonable for licensing fees.

Re:Misjudged FRAND patents

[jo_ham]

Your first point is the crux of the whole thing. Apple believes they had a licence to the patent (it was included as a vital component of the 3G pool they paid to use) - they've been using it for five years. Now all of a sudden we are told by Motorola that they aren't covered, and thus can be sued for it?

It's either incompetence on Motorola's part that they let it go for 5 years without noticing it (and thus, hardly Apple's fault to the point that they should pay punitive damages), or Moto simply decided to change what was covered. As a vital part of the 3G standard there's no way Apple simply missed it - for exactly this sort of reason. Nor, does it seem, that Motorola missed it with any of the other manufacturers using the 3G pool. They seem to have conveniently only missed it in Apple's case, and discovered the fact right at the same time that Apple were suing them.

If they really have been in negotiation for 5 years on the value of the patent then again, they can't claim Apple have been using it for all that time without willing to pay for it, since negotiations would be ongoing. You can't stall out the talks for years and then claim your opponent is not paying for your tech and sue them for bad sportsmanship and damages for the years they've been "infringing" because you're still trying to settle on the price.

Re:Misjudged FRAND patents

[toriver]

Envious - or just hateful? Design patents and technology patents are different beasts. But you haters keep ignoring Apple's technology patents as if they do not exist.

Apple are paying for FRAND patents (e.g. to Nokia), and you are lying because you like to.

Re:Misjudged FRAND patents

[Anonymous Coward]

I feel that most people don't really understand idea behind FRAND patents. It had two objectives:

1) Prevent war between 'gorillas'. All of them were putting major resources into R&D in hardware and FRAND patents allow them to share knowledge without heavy fighting of negotiations which would only filled lawyers pockets

2) Lower barriers for small players. With FRAND they can license necessary technology without breaking budget and allow to concentrate on product.

Fine so far...

Now we have third situation: gorilla enters the fray and want to use FRAND system without paying entry fee (resources put into R&D). It is Apple which abuses FRAND system, not Motorola, Nokia, etc. If it wants to not be treated with contempt it should put their 'design patents' into FRAND pool.

Bull.

Fucking.

Shit.

The practice of licensing standards-essential patents under FRAND terms is about ensuring that interoperability actually works in practice. If anyone is allowed to charge arbitrary amounts for a patent essential to implementing a standard, it's no longer useful as a standard because the biggest bully can prevent anybody else from using it, for any reason they see fit. So, when standards committees meet, all the participants sign agreements to license their contributions under FRAND terms.

Standards-essential FRAND is not, and never has been, about design patents. To connect to a cell phone network, you do not need to make something deliberately designed to look as much like an iPhone as possible.

You're also full of shit about "resources put into R&D" being an entry fee which must be paid. If that were so, nobody could ever use a standard who wasn't involved in developing it, because once it's defined there's not really a lot more to do. The only "entry fee" anybody is morally or legally obliged to pay is dollars and cents paid as license fees to the owners of standards-essential patents. That's why they patent such IP in the first place -- so they can get rewarded in cold hard cash for helping develop the standard. IIRC, the "fair" part is that the fees are intended to be enough money to compensate the developers of the standard for their work. "Reasonable" means fees shouldn't be priced excessively. "Non-discriminatory" means everyone pays roughly the same fees, so that patent holders can't play favorites to punish competitors they don't like.

And sorry, douchebag, that includes Apple. Like it or not, the same FRAND principles which protect small, new players must also protect giant new players. Or did you not notice that under your fuckhead vision of how FRAND is supposed to work, any small player must be regarded as an evil abuser of FRAND because they're never going to have patent IP of equal worth to contribute? Double standards FTW.

Successful defense

[Anonymous Coward]

A stalemate can be considered a successful defense, unless you're a patent troll who wants to earn money simply for sitting on your patents.

Re:Patent portfolio not so great

[Fjandr]

Motorola came out much better than Apple. They only had one patent in contest, and couldn't come up with a rational figure for damages that would warrant an injunction of Apple's product line.

It was less about Motorola's hardware patent (again, they only had one left to assert in this particular case) being worthless and more about the requested remedy not fitting the scale of infringement they could reasonably prove.

People who use "much"

[Anonymous Coward]

People who take a word or phrase then add "much" at the end are usually asshats.

They heard it once, thought it clever and now use it instead of coming up with a phrase or sentence that communicates something intelligible.

What makes this doubly ironic is the additional information in no way calls into question the truth of the original quote.

You just don't like it.

Apple Won

[Anonymous Coward]

Apple won this by a mile. It really is that simple.

Re:Apple Won

[Anonymous Coward]

In that case I how Apple keep winning by miles (that's losing, right governor?)

The problem is 2.5% of WHAT?

[Rob Y.]

How on earth does anybody justify a 2.5% (or any other percentage for that matter) royalty on an entire computer system based on a patent on some minor (or even major) feature of that system?

You could argue that GSM patents are inherent to the functionality of a mobile phone, and so justify royalties based on a significant portion of the device price. But even there, the 'making phone calls' part of today's smartphones is not their only (or even, for some people, their most important) feature. And besides, those patent royalties should apply to the cost of the chip that implements them - not the device that contains the chip.

The idea that Microsoft is collecting even $5 in royalties based on silly FAT32 patents or progress bar patents (even if they weren't silly) when they license the full WP7 OS for not much more than that is perverse beyond belief. And that Apple can prevent the sale of competing devices based on as minor a component as 'slide to unlock' is criminal. Go to court. Come up with a reasonable royalty. Charge it retrospectively if you must. But don't make it impossible to compete. The utter hypocrisy of the 'free market true believers' that write US law is mind boggling.

So will Apple now pay for their FRAND patents?

[Anonymous Coward]

So it's wrong to use FRAND patents to obtain an injunction. How does Motorola go about getting Apple to pay for patents they've been using for free for years? Should patent battles only go one way? Or is Apple exempt for some odd reason? I guess the company that can patent "rectangles with rounded corners" doesn't have to pay for FRAND patents.

Do you know what abuse Motorola were undertaking?

[Anonymous Coward]

" I am happier to hear that Motorola has been prevented from abusing FRAND patents"

Do you know what abuse Motorola were undertaking?

Because FRAND doesn't say that you can't include requirements other than money in your FRAND license, right? It IS allowed to be "if you can't or won't put in to the patent pool, then you pay a different price from someone who is putting in to the patent pool".

  (any of you poker players? What happens if you don't 'ante up' and put money into the pool? that's right: you don't get to play)

Apple are not covered under 2

[Anonymous Coward]

Apple are not covered under 2. Apple didn't buy a redistribution license.

You may not agree with it (neither do I, but I want the law that allows this to be taken down, not merely one specific use of it), but you can't, for example, sell off unused Windows licenses if your company goes under.

Why? Because you need a different license to redistribute.

If 2.25 percent is reasonable...

[gnasher719]

Let's say I have a product that sells at retail for $600. I have an idea to improve the product by adding a $5 chip and a bit of clever software. The chip is covered by a patent available under an FRAND license. How much will the price rise if I do this?

If I raise the price to $630 (increase of $30 for end user), the retail chain probably takes something like 30 percent, that's $9. The "reasonable" 2.25 percent is $14.17, the chip is $5, total $28.17, leaving $1.83 for me. Well, that's great. Do you think I'm going to add this feature? Don't think so.

Now if I was mad enough to add this feature, say there is another feature to add with identical cost. Again a price increase of $30. But this time, the first patent holder gets another 2.25 percent of the added $30, that's $0.67. So now I make only $1.16. So does 2.25 percent of the final price seem reasonable?

What about a product like a current high end phone, which is a phone, a photo camera, a film camera, a games computer, an ebook reader, a music player, and two dozen other things that I forgot. That could easily covered by 30 patents available under an FRAND license. That's 67.5 percent. For the remaining 32.5 percent I have to develop, build, pay for the parts, and the sellers want to make some money as well. How is that supposed to work?

Re:If 2.25 percent is reasonable...

[Anonymous Coward]

Please re-do your math. $30 * 0.0225 cannot be both $14.17 and $0.67.

Re:I'll snap my ass whenever I please!

[BronsCon]

I don't think you're supposed to paste them all... You're probably not gonna get paid for that one.

Posner is prejudiced alright...

[Anonymous Coward]

Prejudiced against using his brain.

Re:Snappy man!

[Anonymous Coward]

If you must use MyCleanPC here's a much better solution. Go find a cliff or a bridge somewhere then take your entire fucktarded family. Have all of them jump off to their deaths and after that jump to yours as you are obviously too fucking stupid to even exist let alone use a computer.

Re:Stop right there, I'll give ya a quick dickin'!

[Anonymous Coward]

If you must use MyCleanPC here's a much better solution. Go find a cliff or a bridge somewhere then take your entire fucktarded family. Have all of them jump off to their deaths and after that jump to yours as you are obviously too fucking stupid to even exist let alone use a computer.

Totally false

[SuperKendall]

that they then turn around and try to prevent others from doing the same

WRONG.

Note that APple has sued hardly any other Android device makers, just Samsung - and only for a few models. They don't care about the Note for example.

Apple doesn't care when other companies ACTUALLY innovate. But when a company exactly copies the look of an Apple product, that is not :taking a good idea and then improving on it". It's juts taking a good idea and calling it your own - the difference between plagiarism and homage..

Re:Totally false

[Anonymous Coward]

you forgot, HTC, and Motorola (you know what this article is about...)

Apple wants to pay FRAND fees

[SuperKendall]

Apple *tried* to pay FRAND fees. Motorola would not sell to Apple at the agreed FRAND levels, instead Motorola jacked up the fees (10x or more I believe).

That was totally against the whole idea of FRAND, that someones patent would be used in a standard because in turn it was understood everyone would pay the same low fee for access. If Motorola announced up-front that they would be jacking around prices on a whine, they would not have been included in the standard.

What you are all missing is how badly this screws Motorola inventions from ever being used in a standard again. If Motorola was willing to break a license agreement with Apple, why not anyone? They are a poisoned asset.

good for Posner

[Anonymous Coward]

Not to condone potential patent infringement on the part of Motorola or any other company, but my response is: good for Posner. The mobile patent wars are out of control. Most of these disputes belong in the marketplace, and should be resolved there, rather than wasting scarce court resources by using them as a proxy for market competition.