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German court rules Apple's FRAND licensing proposal is fair enough, would be illegal for Motorola to refuse

A German appeals court has handed Apple, Inc. (AAPL) a major victory this week, at the expense of pending Google Inc. (GOOG) acquisition Motorola Mobility.  The Karlsruhe Higher Regional Court ("Oberlandesgericht Karlsruhe") elected to stay a preliminary injunction by the lower Mannheim Court, an injunction which could have -- at least online -- banned sales of iPhones and iPads in Germany.

I. iPad, iPhone Ban Would be Illegal Says Appeals Court

To understand the ruling you have to understand German patent law.  In the European Union, different member states have different patent court systems, despite sharing a single unified intellectual property registrar.

In Germany, lower federal courts launch cases along two separate tracks -- an infringement track, and a validity track.  The infringement track can ban (via preliminary injunction) a product or service, even if there's a modest prospect that a patent is invalid.  The infringement proceedings are typically only stayed by a lower court if there is a "high likelihood" (70-80 percent) of invalidity.

By contrast, German federal appeals courts can stay the infringement proceedings (and potential product bans) if there's a modest (think 50 percent or greater) chance of invalidity.

In this particular case, the infringement track was paused due to a special type of invalidity concern -- invalidity not based on the patent being invalid, but invalidity based on it being illegal to litigate with the patent under current licensing rules.

Apple store in Germany
German authorities have ruled that it would be illegal for Motorola to seek a sales ban on the iPhone and iPad, given Apple's relatively fair licensing proposal. (Pictured: Munich's Apple store) [Image Source: Apple Insider]

The Karlsruhe court ruled that Apple's latest licensing proposal was fair and reasonable enough that Motorola was legally obligated to license the patent to its rival.  The key point in the case was that the patents in the case (which Apple was found to infringe by lacking a license) were 3G standards patents governed by fair, reasonable, and non-discriminatory (FRAND) licensing terms.

Motorola made it clear it had a lot of issues with Apple's licensing proposal, and for a time the appeals court appeared to be on its side.  But via an "iterative approach", Apple crafted a licensing proposal, which was the appeals court felt was fair enough, according to FOSS Patents.  To refuse to license under the terms of that revised offer would be a clear antitrust violation, the German appeals court stated.

A translated ruling is available here.

II. Growing Headaches for Motorola, Google

Some experts (such as FOSS Patents blogger Florian Mueller) are saying that this loss is especially painful for Google/Motorola as the German court system is relatively friendly to FRAND patent holders using the standards patents to litigate against other FRAND standards holders.  

As Apple is also involved in some FRAND patents, the German court was more receptive to Motorola's claims that other international courts might be; a perspective originally praised by Google.

Cell tower
Motorola Mobility's efforts to litigate with 3G FRAND patents aren't working out very well.
[Image Source: Trak]

The loss adds to the cloud floating over Motorola and Google, as a European Union probe into potential FRAND patent abuse continues.  Motorola is fighting a two-front war against Apple and Microsoft Corp. (MSFT).  Last week Microsoft filed an EU complaint against Motorola, claiming it was committing antitrust violations by refusing to license certain FRAND patents.

III. Battle is Far From Over

While Motorola's litigious efforts against Apple are significantly weakened by the ruling, all is not lost for the phonemaker.  Motorola has a non-FRAND ban on the iCloud's push email in Germany, which is likely to be enforced for at least a year until the appeal is heard.  Unlike the iPhone/iPad ban, the appeal is unlikely to be expedited as the case does not share the same compelling FRAND questions.

Motorola's smartphones could be banned by April if it does not adopt a new unlock mechanism, following a German judge's decision that Motorola's lock graphic violated Apple's pair of patents [1][2] on a swipe unlock.  Motorola stands a good chance of getting this overturned at the appeals level, given the amount of prior art.  Such prior art was used to toss out similar claims in the Netherlands, where invalidity and infringement proceedings are lumped together into a single track.

Motorola unlock
Motorola's forbidden swipe to unlock gesture [Image Source: YouTube]

However, like Apple with the iCloud ban, Motorola must likely wait almost a year to get the decision tossed, as it is a non-FRAND issue.  Motorola will likely be forced to implement alternative unlock gestures.  Samsung Electronic Comp., Ltd. (KS:005930) -- threatened with a similar German ban -- has already done this, putting in place a circular slide to unlock motion.  

While the new unlock is clunky, it is likely to prevent Apple from being able to ban the company's products from the market, and may have the added perk of encouraging customers to use Android's more secure built-in Grid Unlock (which was not found to be infringement in Germany to date).

In the long run it's anybody's guess what could happen in Germany.  An appeal could allow Motorola to (re)enforce its FRAND-based iPad/iPhone ban, if the first appeals court decision is overturned.  Motorola could even invalidate Apple's swipe-to-unlock IP.  Alternatively, Motorola could see its iCloud victory nullified and be forced to maintain painful user interface changes, should things go wholesale in Apple's favor.

Sources: FOSS Patents [1], [2]



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This article is over a month old, voting and posting comments is disabled

So...
By Motoman on 2/27/2012 7:33:09 PM , Rating: 3
...how much money is Apple paying the German government, anyway?




RE: So...
By quiksilvr on 2/27/2012 7:57:41 PM , Rating: 4
Alot. No joke. This is straight-up bribery.


RE: So...
By dgingerich on 2/27/2012 8:17:49 PM , Rating: 2
Partly what I was thinking, but I was thinking more along the lines of "how much is apple paying these judges behind the scenes?"


RE: So...
By Omega215D on 2/27/2012 11:44:01 PM , Rating: 2
Hmm... it seems florian mueller's position on things is suspect.

http://www.phonearena.com/news/Apple-wins-temporar...


RE: So...
By testerguy on 2/28/2012 3:19:18 AM , Rating: 1
quote:
...how much money is Apple paying the German government, anyway?


Motorola trying to seek injunctions based on FRAND patents was never going to be successful. When manufacturers voluntarily sign the FRAND contract - they commit to licensing the technology on fair, reasonable and non-discriminatory terms. Apple offered Motorola this, and Motorola refused, demanding what even they admitted was 'above-frand' rates.

No higher court of law would side with the anti-competitive act of seeking injunctions on products over FRAND disputes in which a reasonable offer has been made.

The bigger question is - why did it even need to go to the higher court. The lower court should have thrown out the FRAND case in the first place.


RE: So...
By AnnihilatorX on 2/28/2012 3:54:48 AM , Rating: 1
So I patent the wheel, and sign this FRAND thing, then I am immune to be sued for bogus patents where prior arts were present and all car makers are obliged to pay me?


RE: So...
By Tony Swash on 2/28/12, Rating: 0
RE: So...
By nafhan on 2/28/2012 8:18:40 AM , Rating: 3
I think what's upsetting people is that trivial stuff like "swipe to unlock" is the basis for potential product embargoes, but patents regarding technology essential for modern communications are swept aside in court. In a reasonable system, both would be thrown out.

While the FRAND thing is "voluntary" in the sense that a company could choose not place their patents under these terms, but those that don't will likely either:
A) Not get their standards adopted (i.e. "standardized") or
B) Get slapped with lawsuits for monopolistic practices.

Long term what matters is that the current system of handling intellectual property is messed up. Stockpiling patents for every possible scenario and combination of software and hardware interface conventions works out great for the small number of extremely large companies that can afford to do that, and it works out rather poorly for everyone else (including the consumer).
quote:
Motorola's pathetic use of FRAND patents in this way, doomed to failure, is an indicator of how weak their legal position is and how poorly they are managed. Hence their slow obliteration in the mobile market.
Motorola is not Apple, blah, blah. Your position is already pretty clear in this regard...


RE: So...
By testerguy on 2/28/12, Rating: 0
RE: So...
By JasonMick (blog) on 2/28/2012 1:10:13 PM , Rating: 2
quote:
As for the patent system in general, I think I agree with your first sentence - the trivial 'swipe to unlock' stuff is distorting yours (and others) perspective on this case which has nothing to do with 'swipe to unlock'. I think you are expressing your grievance over an unrelated case and confusing it as having any relation to this case. In my opinion the court did exactly the right thing here, and Motorola can have no complaints whatsoever.

Testerguy, first let me say we don't usually agree thus far in the comments you've left here. But I do agree with you about FRAND.

FRAND is a good concept in principal. And Germany is right not to let Samsung or Motorola abuse essential standards.

That said, your dismissal of the op's point is not valid, as Apple's gesture/UI driven lawsuits DO impact the court system. Motorola/Samsung/Google would never be trying to sue Apple/Microsoft if it weren't for the hyperlitigious atmosphere where companies either demand a king's ransom (Microsoft) or try to ban your products (Apple).

In reality there should be some element of value added to the patent system. For example, I have no real issue with Apple patenting UI gestures, but clearly their gestures are
a)based on a wealth on prior art
b)represent only a fraction of the combined value eqn. for Apple's products.

Given these factors, Apple should be allowed to sue and demand licensing, but the settlement should be maybe an order of magnitude higher than FRAND.

For example a collection of FRAND patents is oft licensed for $0.02 per device. This is very reasonable.

It would be also reasonable to allow Apple to sue and potentially win a mandatory licensing settlement of $0.20. (10x premium over FRAND)

What I don't see as fair is Apple suing over a relatively minor piece of intellectual property and potentially banning a $200 product.

This represents a 10,000x premium versus the FRAND licensing!!!!

This is clear evidence that the system is indeed broken, as the op stated.

UI gestures/speech inputs, etc. are ubiquitous and critical to the industry progressing. I can see possibly allowing this kind of IP to be filed as non-FRAND patents, but allowing such extreme abuses is just anti-technology.


RE: So...
By adiposity on 2/28/2012 3:24:58 PM , Rating: 2
quote:
For example a collection of FRAND patents is oft licensed for $0.02 per device. This is very reasonable. It would be also reasonable to allow Apple to sue and potentially win a mandatory licensing settlement of $0.20. (10x premium over FRAND) What I don't see as fair is Apple suing over a relatively minor piece of intellectual property and potentially banning a $200 product. This represents a 10,000x premium versus the FRAND licensing!!!!


Jason, while you make some good points, I really don't see how you can compare the cost of the licensing to the cost of the product. There is no direct comparison between the license cost and the retail price of a device, and banning a $200 device is not the same as requiring $200 is licensing fees. It is simply banning the device until it is not violating patents.

Now I don't agree with Apple's suing, but you are comparing two totally different numbers and then trying to calculate a ratio which is meaningless. There is no ratio known as "the retail price divided by the license cost of one patent" that can calculate your "10,000x premium."

If anything the cost of a phone vs. the price minus the cost minus the licensing might be compared. Then you could see what the total amount lost might be for getting banned vs. licensing. While it would be interesting, it would not be any kind of "premium," because the money doesn't go to Apple! It's just inability to sell the product.


RE: So...
By Tony Swash on 2/28/2012 11:04:17 AM , Rating: 1
I think that many people seem to be in a state of terminal confusion about FRAND and about why companies offer their IP up to be adopted as a FRAND standard.

In the past product differentiation through the consistent introduction of unique characteristics was not seen as central to the mobile phone business model. What was important was adoption by carriers who would then push your phone model through their channels (that's still important but it used to be the single most important factor in determining whether a particular model of phone was a success) and to a lesser extent old fashioned 'specs' (i.e. more megapixels in the camera, more ticks in the feature list, again such things are still important but much less so).

This meant that the phone companies were less bothered about retaining unique features in their phones but were interested in licensing their IP to other companies in order to supplement, often by substantial amounts, their revenues. The best way to ensure a high take up of your IP by your competitors and the best way to ensure that your IP was widely used and thus that your license income was the highest possible was by offering your IP in the FRAND framework. The reason is obvious, other companies would only adopt and possibly become dependent on another companies IP if they were guaranteed that the owner of the IP couldn't screw them at later date. The great benefit of the FRAND system was that it allowed the adoption of industry wide standards using IP that was owned by a single company.

The iPhone disrupted this set up which was Apple's intention. Apple only enters markets if it thinks it can disrupt them. Apple's approach was to focus great effort on packing their product with as many finely crafted and integrated features as possible all protected by their strong IP portfolio and designed and implemented in such a way as to ensure huge pull demand from consumers and a very strong brand profile. If you stopped a hundred people on the street and asked them to name a handset I am sure that the iPhone would beat all others hands down. It's this consumer pull, the high demand from customers for the iPhone specifically, that gives Apple the mechanism by which it can shape the best possible deal with carriers (no crapware, total control of software and OS updates, hardware and branding, very large carrier subsidies, etc).

Given it's approach Apple has no interest in offering it's IP as a FRAND standard, it is not interested in earning license fee peanuts. What Apple does have is a strong and relevant portfolio of IP, unlike many of the hand set makers that have a weak portfolio of modern, relevant and FRAND free IP. Hence Apple's attritional legal campaign to protect what it sees as it's innovation, and also hence the desperate full back by Samsung and in particular Motorola in to FRAND abuse in a futile attempt to counter Apple.

It's worth bearing mind that Motorola sued Apple first. I bet they wished they hadn't.


RE: So...
By testerguy on 2/28/2012 11:49:57 AM , Rating: 1
quote:
It's worth bearing mind that Motorola sued Apple first. I bet they wished they hadn't.


This is very interesting.

A lot of people in previous articles have described Apple as the 'antagonist'. I feel this is an irrelevant argument anyway - the equivalent of the playground 'he started it'. It is, however, good to know that Apple weren't the antagonist so that such an accusation is also factually incorrect.


RE: So...
By nafhan on 2/28/2012 12:16:47 PM , Rating: 2
OK, let's say country A attacks country S and H, which are allied with country M. Country M then attacks country A. Who is the antagonist here, the one who started the war or the one who started the battle?

That's not the important thing anyway, if Googarola was the primary antagonist taking advantage of the current problematic situation with IP law, it could be just as bad. Billions are being wasted on litigation, and consumers are may lose useful services and functions like iCloud.


RE: So...
By nafhan on 2/28/2012 12:02:04 PM , Rating: 2
I'm coming at this from a totally different perspective than you. It seems like your perspective is basically just using any excuse possible to praise Apple and explain how they can do no wrong. I find that strange, but whatever... My perspective is that current IP law has MAJOR MAJOR issues that is seriously harming the marketplace and the consumer. Anything negative I say about your chosen brand/label/company is from that perspective and not a personal attack on you...

Companies release their IP under FRAND terms because standards will generally not be adopted unless they're licensed in such a way. For complicated technology that underlays national telecomm infrastructures, standards are important. For stuff like UI conventions, standards really don't matter as much. At the same time, stuff that is very obvious (such as a many of Apple's "strong" patents, like swipe to unlock), shouldn't be patentable in the first place. That's where my issue lies.

Apple's does undoubtedly have some strong IP, but the stuff they're litigating over is, more often than not, trivial. This brings things back around to the point of IP law in the first place: to promote innovation. Current IP law is absolutely not doing this. It's largely promoting massive court battles and artificially high valuations of shell companies that have nothing BUT IP.


RE: So...
By Tony Swash on 2/28/2012 2:24:39 PM , Rating: 1
quote:
At the same time, stuff that is very obvious (such as a many of Apple's "strong" patents, like swipe to unlock), shouldn't be patentable in the first place. That's where my issue lies.


Stuff always looks obvious once someone has done it and done it successfully. Take the rubber banding animation that is pervasive in iOS to denote you have scrolled to the end of a list. It seems obvious because it is a very good visual metaphor that truly helps people react to and understand what is happening in the touch interface. Without something like that people tend to think a scroll that comes to sudden halt has hit a glitch so they often try to scroll harder by pressing harder. The bounce is clever and very useful. And it belongs to Apple who developed it, patented it and deployed it in their first version of iOS. So why should other companies be allowed to copy it without permission? I can see no justification in that.

As I have said before the mobile patent wars will rumble on for a few more years but they will fade. There is much hysteria and anxiety about stuff that barely impacts the consumer who still has many different offerings to choose from freely in the market place. More innovation and less copying is what is needed.


RE: So...
By nafhan on 2/28/2012 3:56:02 PM , Rating: 2
quote:
Stuff always looks obvious once someone has done it and done it successfully
That's not true at all. Here's a link to a Motorola patent regarding QAM (first result googling "patent qam") from 1994: http://www.google.com/patents/US5343499 The stuff described in there is not going to be obvious to very many people. I've done a little work with microwave radio in the past, so I understand what's going on in the patent at a very high level, but obvious? Not to most.
quote:
blah, blah, So why should other companies be allowed to copy it without permission?
Because this is how everything has worked in software and science and technology for all of history; it's what Apple DOES, and it's how progress happens. The real question is why shouldn't copying be allowed? And the answer to that is simple: that's how the legal system is set up right now. The moral and ethical quandary you're presenting doesn't really exist.
quote:
the mobile patent wars will rumble on for a few more years but they will fade
Agreed, but the outcome will have far reaching implications in technology and IP law for decades (essentially all aspects of you and your hypothetical children's lives). So, that outcome is very important, to me, at least.


RE: So...
By Tony Swash on 2/28/12, Rating: 0
RE: So...
By nafhan on 2/29/2012 10:36:27 AM , Rating: 2
Where do you come up with this stuff? The first step in "building on" something is to copy it. Otherwise, you're not building on anything...


RE: So...
By JPForums on 2/28/2012 9:23:57 AM , Rating: 2
quote:
So I patent the wheel, and sign this FRAND thing, then I am immune to be sued for bogus patents where prior arts were present and all car makers are obliged to pay me?


I'm not really sure what you are getting at here. To make things clear, Apple has the patent with prior art present. Motorola has the FRAND baseband IP (without prior art).

Standards boards tend to like to create standards incorporating FRAND patents, because it's supposed to guarantee that IP required to be standards compliant is available to everyone in the industry.

Companies may make a patent FRAND because they can license the IP to more companies. Ideally they sell more volume with less margin for an overall higher return on investment.

Note: an invalid patent would still be considered invalid regardless of FRAND status.


RE: So...
By ShieTar on 2/28/2012 7:13:06 AM , Rating: 2
The german government has no control over german courts.

You see, as in most republics, we have a little thing called "separation of powers".

While this is in principle supposed to exist in most democracies, it is more of a reality in germany than it is in many other nations. A lot of government decisions a regularly overturned by the supreme court as the judges think and act completely independant of political considerations.


RE: So...
By hexxthalion on 2/28/2012 9:09:00 AM , Rating: 1
you don't seem to be very bright person - just saying


How is Samung's unlock 'clunky'?
By Johnmcl7 on 2/27/2012 7:40:43 PM , Rating: 2
I don't see how swiping a different direction across the screen is 'clunky' as I find it more convenient.

John




RE: How is Samung's unlock 'clunky'?
By JasonMick (blog) on 2/28/2012 12:18:30 AM , Rating: 2
quote:
I don't see how swiping a different direction across the screen is 'clunky' as I find it more convenient.

John

The article is not referring to the traditonal swipe unlock, it's referring to the spiral-based unlock that Samsung replaced it with exclusively in Germany, due to the lawsuit concerns.

Many people have commented that the spiral unlock is clunky. It's not one direction, you have to drag your finger in a circle, and it's rather sensitive according to some users, hence it creates some headaches/inconvenience vs. a straight swipe.


RE: How is Samung's unlock 'clunky'?
By Ticholo on 2/28/2012 2:23:59 AM , Rating: 3
That swipe thing is completely idiotic.
Next thing you know you'll only be able to unlock your phone by swiping your finger in an exact 264º arc. Then the next company that comes along will have a 265º arc and so on.

I'll buy an iPhone if apple makes it unlock by showing it my middle finger. How about that?


RE: How is Samung's unlock 'clunky'?
By testerguy on 2/28/2012 3:33:48 AM , Rating: 2
While I agree with you that perhaps slide-to-unlock being patentable is a little far - I think you should wait until the court judges the validity of said patent.

If the patent is found to have 'prior art' or to be 'obvious' - it will be invalidated and your scenario wont exist.

If the patent is found to be valid - then your scenario will exist, but I would suggest that your argument should be with the patent and legal system, rather than Apple.

All companies will try to protect whatever they can, to whatever extent they can. It's up to the courts and legal system to draw the line in the sand. If the line is drawn on the wrong side of the slide-to-unlock debate, in your eyes, it's the fault of the system, not Apple.


RE: How is Samung's unlock 'clunky'?
By JPForums on 2/28/2012 9:08:29 AM , Rating: 2
quote:
If the patent is found to be valid - then your scenario will exist, but I would suggest that your argument should be with the patent and legal system, rather than Apple.

I would indeed have a disagreement with the German legal system if the patent is ruled valid.

However, regardless of ruling I still take issue with Apple submitting patent proposals on something that someone else came up with, and furthermore, already has patents on it. Such actions are costly to the court system and the companies under attack.

quote:
All companies will try to protect whatever they can, to whatever extent they can.

I've never found the "Everyone does it" argument to be particularly compelling, even if it is true. Though, I find it entirely unlikely that Apples legal counsel didn't know about the prior art. As such, the patent in question seems more like a way to inflict short term damage on competitors through injunctions and legal costs. Apple has far more cash on hand for these court cases than their competitors.

That said, I find this articles topic, FRAND abuse, a far more grievous concern , so let's evaluate that for a moment. Motorola offers licenses to everyone, including Apple, so the point of contention is "fair" and "non-discriminatory".

As I understand it, Motorola is licensing its IP at the same rate (2.25%) as it does for everyone else. So not discriminatory.

"Fair" is harder to be concrete about. However, I'd imagine that if they were being unfair, more that one company would find it as such. I can think of two (in addition to Apple) right off the bat. Of all companies, Microsoft agrees with Apple on this and have filed their own complaint against Motorola regarding FRAND patent abuse. Qualcomm, while letting Apple do most the talking, has license contracts with Motorola in place that protects its clients from litigation while using its baseband chips covered under the license. It would be hugely damaging to Qualcomm's business if their baseband customers had to enter into licensing agreements with Motorola to use their chips. Motorola's case smells more foul than "Fair" to me.


RE: How is Samung's unlock 'clunky'?
By testerguy on 2/28/2012 11:27:19 AM , Rating: 2
Thanks for the logical, reasoned approach.

quote:
However, regardless of ruling I still take issue with Apple submitting patent proposals on something that someone else came up with, and furthermore, already has patents on it. Such actions are costly to the court system and the companies under attack.


I think this is a little disingenuous. You state 'someone else came up with' as if that is a matter of fact. Even if that is what you believe, it isn't necessarily what Apple believes. Their patent is technically different in a number of ways, and while I agree that the Neonode raises the question of prior art - it doesn't provide a conclusive answer. If Apple honestly believed their patent was no different, they would not believe it would ever stand up in court - so there would be no point. They obviously believed it was different enough to be patented. To put it into perspective, the 'swipe' on the Neonode in the patent itself wasn't even for 'unlocking' - it was for going forward OR back.

quote:
I've never found the "Everyone does it" argument to be particularly compelling, even if it is true. Though, I find it entirely unlikely that Apples legal counsel didn't know about the prior art. As such, the patent in question seems more like a way to inflict short term damage on competitors through injunctions and legal costs. Apple has far more cash on hand for these court cases than their competitors.


I think 'Every company does it' is a compelling argument. You have to bear in mind that companies are not human entities - they do not necessarily adhere to 'morals' except where doing so increases profit. It is almost their duty to maximise the income from their intellectual property such as patents, and they have to work off the assumption that their competitors will do the same - legally, of course. Indeed, 'legally' is the company equivalent of human 'morals'. Your claim of a 'short term' aim when referring to a patent filed 7 years ago with no knowledge of what would happen in subsequent years would appear contradictory (and in your post you clearly object to the patent itself). They wouldn't file a patent if they never believed they would or could need to protect it - and that it would mean something. Since no devices are yet banned, and since this 'swipe to unlock' patent war has caused a bit of PR damage for Apple, I don't think they are doing it just for the sake of legal costs or 'short term damage' - all the companies in question can handle the legal costs since they have in-house legal teams anyway, and no actual damage has been done yet. What Apple is doing, arguably, is allowing their own patent every chance to realise its full value. It's down to the legal system to define what that value is.

I think you have to understand that since the iPhone from 2007 was basically the genesis behind every smartphone you see today, Apple feel a little aggrieved that everyone else duplicated what they believed was a protected idea. In the launch speech in Jan 2007, Steve Jobs even said they had filed over 200 patents during the development of the device - they were so happy with it they basically tried to make sure nobody could copy it. What we see today is just them following through with that (clearly unsuccessfully). I don't mind them doing that - and I don't care whether they are successful or not - Motorola and Samsung can handle it, and the law gets to decide on things like 'prior art' (rather than me or you).

quote:
That said, I find this articles topic, FRAND abuse, a far more grievous concern , so let's evaluate that for a moment. Motorola offers licenses to everyone, including Apple, so the point of contention is "fair" and "non-discriminatory". As I understand it, Motorola is licensing its IP at the same rate (2.25%) as it does for everyone else. So not discriminatory.


I agree, FRAND abuse is far worse. The key in the FRAND case here is that the licensing has to go back historically as well as forwards. Apple offered Motorola FRAND rates for both, but Motorola refused. They claimed that because the licensing was historical, they should be entitled to what even they admit are above FRAND rates - as a kind of penalty for being late. This, I can see and actually agree with (provided the penalties are also reasonable). However, they went a step further, and refused to license at what everybody agreed was FRAND rates going forward - because the issue of historical payment had not been resolved (due to their ridiculous demands). This is where the FRAND abuse kicks in. What Apple did was make sure that they offered enough that it was clearly reasonable, but not anywhere near the penalties Motorola wanted. The court has decided that the offer Apple made going backwards and forward is indeed Fair and Reasonable, and therefore Motorola can't refuse to license the technology and consequently have the devices banned.

The correct decision all round, IMO.


By JPForums on 2/28/2012 1:42:23 PM , Rating: 2
quote:
I think this is a little disingenuous. You state 'someone else came up with' as if that is a matter of fact. Even if that is what you believe, it isn't necessarily what Apple believes.

Sorry I wasn't more clear with that. Let me correct that: I still take issue with Apple submitting patent proposals on something that in my opinion someone else came up with, and furthermore, already has patents on it. Though to be fair, the existing patents are fact and the technical differences weren't enough win them a previous case. So I'm not entirely alone in that opinion.

quote:
I think 'Every company does it' is a compelling argument. You have to bear in mind that companies are not human entities - they do not necessarily adhere to 'morals' except where doing so increases profit. It is almost their duty to maximise the income from their intellectual property such as patents, and they have to work off the assumption that their competitors will do the same - legally, of course.

I hadn't really though of it that way, so I'll have to think it over some. Though, I'm guessing avoiding (too much) bad PR would be a reason to adhere to 'morals'.

quote:
Your claim of a 'short term' aim when referring to a patent filed 7 years ago with no knowledge of what would happen in subsequent years would appear contradictory

In this context I (apparently incorrectly) thought it would be clear that I was talking about the current usage of said patent. Also, the only thing I said was short term was the damages. Even if Apple's legal department and I disagree on the validity of the patent, I don't think they'd disagree that this patent is not as strong than many of their other patents. They know better than me their chances of winning and that the competition will work around it if they do win. Hence, my usage of the term "short term damage".

quote:
all the companies in question can handle the legal costs since they have in-house legal teams anyway, and no actual damage has been done yet.

Injunctions are damaging. Even if compensated monetarily, mind/market share loss is still a concern. Whether Apple's injunctions are successful or not has no bearing on their intent to get them. Of course, they are well within their legal rights to do so.

quote:
What Apple is doing, arguably, is allowing their own patent every chance to realize its full value.

Absolutely. They probably wouldn't litigate if there was no chance at winning. The question is at what point does Apple decide the chances are too low to justify the cost. My guess is that their ability to get injunctions has some bearing on this.

quote:
Apple feel a little aggrieved that everyone else duplicated what they believed was a protected idea.

Good point.

Regarding the Motorola FRAND issues, I believe we're mostly on the same page.

Thanks for the logical discussion.


By CBeck113 on 2/28/2012 7:27:35 AM , Rating: 2
It's not clunky in any way. Basically there's no specific starting point. Where ever you touch the screen is the middle of a circle (and start point), and you have to slide your finger past a second, concentric circle. If clunky means "I don't know where to start", then OK, but that happens once - the first time you use it.
On the same note, they were forced to change the pick up and reject call functions as well, because they also used a predetermined linear path to activate. Now these are circular as well.

Servus, Charlie


RE: How is Samung's unlock 'clunky'?
By Gondor on 2/28/2012 4:13:38 AM , Rating: 3
As I suggested in a previous thread, they should have gonee with "two finger tap", first index then middlemiddle finger at two adjacent spots (~2 centimeters apart from each other), not very much unlike "grid unlock", but far easier to do (unless you're suffering from arthritis ?) and remember, plus it can be done with thumb alone if you only have one hand avaliable to hold and manipulate the phone.

Somebody should also patent this before some Appletroll does.


Who won?
By ShieTar on 2/28/2012 7:19:35 AM , Rating: 2
I find it rather strange that this chain of events is sold as a victory for Apple. Correct me if I miss something here, but to me it looks like:

1. Motorola is not happy with the FRAND-fees offered by Apple.
2. German court supports Motorola.
3. Apple hands in a new, better offer.
4. German court says "Our work here is done".

So, to me it looks like Motorola got what they wanted in the first place, which was a fair payment by Apple. How is that victory for Apple?




RE: Who won?
By testerguy on 2/28/2012 11:32:48 AM , Rating: 2
The victory is that the new offer from Apple was not acceptable to Motorola, since it was much less than they had demanded. The court overruled Motorola's refusal of Apple's offer.

You're right to some extent though in that Motorola does still get it's fair licensing - and so they should. The only reason it even came to be a legal case was because Motorola wanted more than it's fair licensing.

Legal system has done its job in ensuring that the license was fair.


FRAND Abuse
By testerguy on 2/28/2012 3:06:43 AM , Rating: 2
That the courts would reach this decision is exactly what I've been telling you all on various articles.

'Slide-to-unlock' may be a contentious patent, but at least it's not a FRAND patent.

Companies have obligations which come with FRAND patents which mean they have to be more reasonable with those than non-FRAND patents, such as 'slide-to-unlock'. This is because FRAND patents are necessary to meet standards and to ensure interoperability, whereas non-FRAND patents aren't. Motorola was always going to get into trouble over this.




=D
By rburnham on 2/28/2012 9:44:22 AM , Rating: 2
Over-turned? A picture of a car flipped over? Oh I get it! Ha ha! I get jokes.




Putting the cart before the cart horse
By Tony Swash on 2/28/12, Rating: -1
By hexxthalion on 2/28/2012 9:10:58 AM , Rating: 2
"It's the tweaks and redesigns that Apple is seeking."

- exactly, Apple wants others to design their own stuff not copy them


Apple knows what they're doing
By Thomaselite14 on 2/27/12, Rating: -1
RE: Apple knows what they're doing
By anactoraaron on 2/27/2012 9:21:15 PM , Rating: 2
No they (Apple) abused (and continue to abuse) the rules in place using invalid patents that have prior art to prevent competitors from selling a competing product. All Moto/Google needs to do is prove the prior art and invalidate the Apple patent in the appeals court and then sue Apple for X amount of dollars from lost sales from their patent trolling and then add in court costs and legal fees for their trouble. Apple will end up losing a lot of money with this narrow minded, short sided patent war.


By C'DaleRider on 2/28/2012 3:02:59 AM , Rating: 1
quote:
with this narrow minded, short sided patent war.


You meant short-sighted patent war. What you wrote makes absolutely no sense and isn't correct.


RE: Apple knows what they're doing
By testerguy on 2/28/2012 3:14:49 AM , Rating: 2
quote:
No they (Apple) abused (and continue to abuse) the rules in place using invalid patents that have prior art to prevent competitors from selling a competing product. All Moto/Google needs to do is prove the prior art and invalidate the Apple patent in the appeals court and then sue Apple for X amount of dollars from lost sales from their patent trolling and then add in court costs and legal fees for their trouble. Apple will end up losing a lot of money with this narrow minded, short sided patent war.


Companies who own non-FRAND patents are entitled to refuse to license it to their competitors, and are entitled to enforce said patents in a court of law. If prior art is demonstrated and proven, then yes, Apple will have to take the cost. For me, this is perfectly fine. If they have caused another company to lose money without a legitimate reason, the system is working if they get charged for it.

However, it may be that the court cases do not prove that there was prior art, in which case no Android phone will be able to use slide-to-unlock. Which could potentially cost Android and Android manufacturers a lot of money.

Either way, Apple is entitled to try and protect their own non-FRAND patents. Motorola, on the other hand, is NOT entitled to refuse to license Apple a FRAND patent - this is far more severe moral and legal failing.


RE: Apple knows what they're doing
By JPForums on 2/28/2012 10:39:17 AM , Rating: 2
quote:
Companies who own non-FRAND patents are entitled to refuse to license it to their competitors, and are entitled to enforce said patents in a court of law.

I don't think this was in question in the previous statement.

quote:
If prior art is demonstrated and proven, then yes, Apple will have to take the cost...

I agree with this sentiment. Some people forget that this is non-trivial and therefore a big IF.

quote:
However, it may be that the court cases do not prove that there was prior art, in which case no Android phone will be able to use slide-to-unlock. Which could potentially cost Android and Android manufacturers a lot of money.

If the potential rewards weren't great, Apple wouldn't have committed to said litigation whether they felt they were correct or not.

quote:
Motorola, on the other hand, is NOT entitled to refuse to license Apple a FRAND patent - this is far more severe moral and legal failing.

As I stated above, this would be a far more grievous concern. Though a technical difference, it should be stated that Motorola is in fact offering to license its FRAND IP in a non-discriminatory manner. The contention is on the "Fairness" of the licensing terms. Nonetheless, your point still stands. However, it is up to the courts, not me, to decide Motorola's fate.


By testerguy on 2/28/2012 11:41:20 AM , Rating: 2
quote:
I don't think this was in question in the previous statement.


The suggestion that using the patent laws to try and prevent competitors from selling a competing product is 'abuse', does suggest that for some reason Apple isn't entitled to attempt to enforce their patents in a court of law. Even if the patents turn out to be invalid - they still have a right to try and enforce them, which is why I stand by my original reply.

The original quote:
quote:
No they (Apple) abused (and continue to abuse) the rules in place using invalid patents that have prior art to prevent competitors from selling a competing product


I think you largely agree with the rest of what I said. It's refreshing to see a logical person on here.


"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes














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