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Old Dec 28, 2012, 08:55 AM   #26
Brazuca
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Originally Posted by KnightWRX View Post
It does, except that Samsung stated that their licensing to Qualcomm was not transferable. Also, it doesn't make perfect sense in scenarios where you have chips that implement multiple standards.

Are you really going to pay a licensing fee for radio protocols you're not going to be using ? No, if it's disabled on the chip, your device doesn't infringe and you don't need a license. So instead of paying a flat "license everything in the chip", Qualcomm sells chips without patent licenses and you get only those you need for the hardware you'll be using.
So its just a matter of facts. The courts will read the agreements and will decide what is transferable or not. The principle of patent exhaustion is sound, as it should.

Apple probably believes that it has paid for the license when it bought the chip. Samsung probably believes that the license didn't transfer. What is the big judgement against Apple here? What is so "evil" about making an argument based on the law? They are either right or wrong, but they have a right to make their case to a court of law.

It is absurd to blame a company, or anyone, for simply defending what it sees are its rights. The courts exist exactly to sort this thing out.
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Old Dec 28, 2012, 09:40 AM   #27
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So its just a matter of facts. The courts will read the agreements and will decide what is transferable or not. The principle of patent exhaustion is sound, as it should.

Apple probably believes that it has paid for the license when it bought the chip. Samsung probably believes that the license didn't transfer. What is the big judgement against Apple here? What is so "evil" about making an argument based on the law? They are either right or wrong, but they have a right to make their case to a court of law.

It is absurd to blame a company, or anyone, for simply defending what it sees are its rights. The courts exist exactly to sort this thing out.
The point, the original point before you tried this, was that Apple is fighting tooth and nail not to pay FRAND rates. They fought Nokia, they fought Samsung and now they are fighting Motorola. It seems that every time Apple needs to pay up some FRAND rates for patent licenses, it will fight, use every trick in the book (of which patent exhaustion is one) and claim "unfair and unreasonable rates" to anything and everything.

A Judge even threw out an Apple lawsuit because of their inflexibility :

http://arstechnica.com/tech-policy/2...inst-motorola/

If anything, trying to paint Apple as a good citizen in these cases is absurd in light of what the trials/lawsuits revealed. Apple is simply trying to weasel themselves out of these licenses to keep their margins high. Other players invested a lot in building the infrastructures that enabled Apple to build the iPhone and have the success it has today, Apple apparently wants to profit from it without giving back or by giving back much less (how is that fair ?) than everyone else.
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Old Dec 28, 2012, 12:42 PM   #28
Brazuca
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The point, the original point before you tried this, was that Apple is fighting tooth and nail not to pay FRAND rates. They fought Nokia, they fought Samsung and now they are fighting Motorola. It seems that every time Apple needs to pay up some FRAND rates for patent licenses, it will fight, use every trick in the book (of which patent exhaustion is one) and claim "unfair and unreasonable rates" to anything and everything.

A Judge even threw out an Apple lawsuit because of their inflexibility :

http://arstechnica.com/tech-policy/2...inst-motorola/

If anything, trying to paint Apple as a good citizen in these cases is absurd in light of what the trials/lawsuits revealed. Apple is simply trying to weasel themselves out of these licenses to keep their margins high. Other players invested a lot in building the infrastructures that enabled Apple to build the iPhone and have the success it has today, Apple apparently wants to profit from it without giving back or by giving back much less (how is that fair ?) than everyone else.
From my reading of the case, Apple didn't want to avoid paying. It simply said that it wanted to keep their ability to appeal a decision under certain conditions. And remember that Google was demanding a whopping 2.25% of each iPhone as a FRAND rate. Apple wanted to make sure that if this was the decision of the judge, it would maintain the right to appeal.

Some detail here: http://www.fosspatents.com/2012/07/j...ework-its.html and here: http://www.fosspatents.com/2012/02/a...t-against.html

If you remember the details of Apple's "antilawsuit" lawsuit, Google told Qualcomm to not transfer licenses if the customer was Apple. Otherwise, their license transfer remained in effect. Those are standard essential patents (SEP). So this action is highly discriminatory by Google, not very FRAND. Apple is suing to stop them from doing this. Very different than not paying.

In the link above, you'll see that the courts agreed that Apple wanted to pay a license that the courts felt were good enough that Google could not reject without being guilty of antitrust using SEPs. Contradicts your assertion that Apple doesn't want to pay, doesn't it?

As I see it, Apple wants to minimize how much it pays (doesn't everyone). But the big issue is Google trying to use SEPs as weapons, when the FRAND principle exists to prevent exactly that. They just got hit hard in Europe for doing this and the ITC may well do the same in the US. No company in its right mind would agree to licensing terms that use SEPs in a discriminatory way, as Google has being doing specifically against Apple products:

Quote:
a Motorola letter sent in January 2011 to Qualcomm in an effort to terminate the Motorola-Qualcomm patent deal with respect to Apple as a third-party customer
Quote:
Also, MMI's termination with respect to Apple appears to a clear violation of the "ND" (non-discriminatory) in "FRAND", and that's a question of antitrust law. If the court finds that MMI's termination was illegal just based on one of the two possible grounds (the language of the contract or the FRAND issues involved), summary judgment in Apple's favor could be entered.
Quote:
As I mentioned before, a termination with respect to one particular third-party beneficiary raises serious issues under the "ND" part of FRAND. Samsung, which is represented against Apple by the same lawyers in the United States, also tried to terminate with respect to Apple, and courts in Paris, France and Milan, Italy have recently determined that such termination was neither allowed under the agreement nor acceptable from a FRAND point of view.
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Old Dec 28, 2012, 04:22 PM   #29
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I see why you're confused. Florian Mueller is a well known anti-Google troll, with very little knowledge of legal matters. His blog is a big source of FUD and misinformation in the legal/technology community.

I suggest you read less biased sources (Florian is on Oracle's payroll and has been spreading anti-Android/Google FUD since the trial with Oracle) and rethink the case toroughly. The Judge threw it out because Apple said they would pay what the Judge ordered, as long as it was no more than 1$ per device (so around less than 0.2% royalty, when everyone else was doing 2-3% royalties per devices).

Also, Apple's attack on companies trying to gain injunctions for FRAND patent infringment have mostly failed as a patent being FRAND doesn't mean it's free and thus as long as entities show good faith in licensing it, if the other party still doesn't pay, it is fair game to ask for injunctions (different EU courts ruled and I think also the US FTC).
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Old Dec 28, 2012, 04:41 PM   #30
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Originally Posted by KnightWRX View Post
when everyone else was doing 2-3% royalties per devices).
Source?

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Also, Apple's attack on companies trying to gain injunctions for FRAND patent infringment have mostly failed
Source? Can you list any successful injunctions against Apple for FRAND patent infringement?

http://blogs.computerworld.com/smart...t-apple-europe

"The biggest surprise is Samsung's decision to end European FRAND-related injunction attempts against Apple."

"The decision may have been taken in reaction to a European Commission decision to launch an antitrust probe to ensure the Korean firm is offering fair access to patents it offers under industry-agreed FRAND agreements."

http://www.theverge.com/2012/12/11/3...rand-antitrust

"Under such a settlement, Google would likely agree to license any standards-essential patents in the Motorola portfolio, as well as abstain from seeking sales bans on products it feels infringe said patents."
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Old Dec 31, 2012, 01:01 PM   #31
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Originally Posted by KnightWRX View Post
I see why you're confused. Florian Mueller is a well known anti-Google troll, with very little knowledge of legal matters. His blog is a big source of FUD and misinformation in the legal/technology community.

I suggest you read less biased sources (Florian is on Oracle's payroll and has been spreading anti-Android/Google FUD since the trial with Oracle) and rethink the case toroughly. The Judge threw it out because Apple said they would pay what the Judge ordered, as long as it was no more than 1$ per device (so around less than 0.2% royalty, when everyone else was doing 2-3% royalties per devices).
From what I read, Apple said it would like the right to appeal any decision that is greater that $1 per device. This was a deal the breaker.

Quote:
Also, Apple's attack on companies trying to gain injunctions for FRAND patent infringment have mostly failed as a patent being FRAND doesn't mean it's free and thus as long as entities show good faith in licensing it, if the other party still doesn't pay, it is fair game to ask for injunctions (different EU courts ruled and I think also the US FTC).
From what I see, all FRAND based attacks against Apple are being received by regulators with disdain. EU is threatening a $15 billion fine on Samsung for just trying to do it. ITC is also proposing strong action. It is clear that there is no appetite for FRAND based attacks on a competitor, which is what Google and Samsung are doing. My posts about Google's clear Apple-specific attack using FRAND patents and Samsungs recent failures are on point.

Apple's position is clear, and I think everyone agrees: FRAND should not be used for injunctions. Companies who use FRAND licenses should pay a FRAND fee. Patent exhaustion should be respected.

Besides the fact that it is Apple who is making these arguments, what is your problem with these positions?
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Old Dec 31, 2012, 02:32 PM   #32
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Originally Posted by Brazuca View Post
From what I see, all FRAND based attacks against Apple are being received by regulators with disdain. EU is threatening a $15 billion fine on Samsung for just trying to do it.
The EU Commission is ONLY investigating whether or not injunctions can be used WHEN the licensee has already shown a true willingness to pay FRAND rates.

Otherwise, the EU Commission has specifically stated in their news release that injunctions are still an option:

"The preliminary view expressed in today's Statement of Objections does not question the availability of injunctive relief for SEP holders outside the specific circumstances present in this case, for example in the case of unwilling licensees."

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Originally Posted by Brazuca View Post
ITC is also proposing strong action.
On the contrary, the ITC has recently reaffirmed that it strongly believes in the use of injunctions for SEP cases. (It has to, because stopping imports is its primary purpose!)

In October an ITC administrative judge...

Quote:
"... ruled that injunctions are definitely available at the ITC for standards-essential patents, and that there is zero evidence of any wrong behavior by Samsung.

"Furthermore, the judge told Apple, which had claimed that the amount Samsung asked for licensing was too high to be a FRAND offer, that Apple can't unilaterally decide what is or is not a fair price.

"If it had objections, it could negotiate, which Apple failed to do, or there is a mediation process at ETSI it could have used, which it also apparently failed to do. Instead, the ruling says, the court battles are about negotiating a lower price."


- Groklaw

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Old Dec 31, 2012, 03:09 PM   #33
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From what I read, Apple said it would like the right to appeal any decision that is greater that $1 per device. This was a deal the breaker.
And you don't see any problems with that ? It's the same thing I said, except you put some Mueller spin on there to make it look like Apple wasn't being greedy. The Judge saw it clear as day. "Give us a price, no more than 1$ per device" was the request. If they felt the need to appeal anything else, it was because they weren't agreeing with more than 1$ now were they ? No need to spin it.

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Originally Posted by Brazuca View Post
Besides the fact that it is Apple who is making these arguments, what is your problem with these positions?
My problem, whoever is making these arguments, are they are they hypocritical when they come from an entity that claims full rights to defend its IP against "copiers/stealers", but then turns around and claims others trying to get revenues from their IPs are in the wrong *before* even attempting negotiations (see kdarling's post for further details).

In 3 cases now (Motorola, Samsung and Nokia), Apple has shown it is unwilling to pay fair prices. This is not an isolated incident, Apple seems to always choose litigation rather than negotiations. Any other entity that would do the same, and at the same time ferociously attack others over its own IP, would deserve the same from me.

I think it's highly hypocritical. And have you found other sources than Mueller ? You should, it would open up your eyes a bit more to the realities going on in the industry.
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Old Jan 2, 2013, 02:56 PM   #34
Brazuca
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Originally Posted by KnightWRX View Post
And you don't see any problems with that ? It's the same thing I said, except you put some Mueller spin on there to make it look like Apple wasn't being greedy. The Judge saw it clear as day. "Give us a price, no more than 1$ per device" was the request. If they felt the need to appeal anything else, it was because they weren't agreeing with more than 1$ now were they ? No need to spin it.



My problem, whoever is making these arguments, are they are they hypocritical when they come from an entity that claims full rights to defend its IP against "copiers/stealers", but then turns around and claims others trying to get revenues from their IPs are in the wrong *before* even attempting negotiations (see kdarling's post for further details).

In 3 cases now (Motorola, Samsung and Nokia), Apple has shown it is unwilling to pay fair prices. This is not an isolated incident, Apple seems to always choose litigation rather than negotiations. Any other entity that would do the same, and at the same time ferociously attack others over its own IP, would deserve the same from me.

I think it's highly hypocritical. And have you found other sources than Mueller ? You should, it would open up your eyes a bit more to the realities going on in the industry.
No spin there. This is about settling on a price. There is no evidence anywhere that Apple has ever said it wasn't willing to pay a license where required.

But I guess because it is Apple, they should pay extra to everyone....

----------

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The EU Commission is ONLY investigating whether or not injunctions can be used WHEN the licensee has already shown a true willingness to pay FRAND rates.

Otherwise, the EU Commission has specifically stated in their news release that injunctions are still an option:

"The preliminary view expressed in today's Statement of Objections does not question the availability of injunctive relief for SEP holders outside the specific circumstances present in this case, for example in the case of unwilling licensees."
Let me quote the first sentence of the same document:
Quote:
The European Commission has informed Samsung of its preliminary view that Samsung's seeking of injunctions against Apple in various Member States on the basis of its mobile phone standard-essential patents ("SEPs") amounts to an abuse of a dominant position prohibited by EU antitrust rules.
Quote:
On the contrary, the ITC has recently reaffirmed that it strongly believes in the use of injunctions for SEP cases. (It has to, because stopping imports is its primary purpose!)

In October an ITC administrative judge...
Of course, if there is violation of FRAND terms. But Samsung and Google are trying to ignore FRAND when it comes to Apple so they can beat the competition.

Plus, you quoted the most Fandroid publication on the planet: groklaw. They have been rabidly anti-Apple during the entire trial. They were so outraged at the juror that they forgot about the law.

I guess you only read what confirms your viewpoints, eh?
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Old Jan 2, 2013, 03:57 PM   #35
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No spin there. This is about settling on a price. There is no evidence anywhere that Apple has ever said it wasn't willing to pay a license where required.
Actually, several judges in several cases have lambasted Apple for running to the courts rather than attempting good faith negotiations or using arbitration before attempting litigation :

Quote:
At the November 5 hearing, Motorola suggested that the parties engage in binding arbitration to resolve their dispute. If the parties really wish to resolve this licensing dispute, this is the obvious solution. It would have many advantages to the parties. It would be conducted in private; the parties would not be bound by their pleadings; they would be able to negotiate any and all of the many aspects of their licensing agreement on which they disagree; and they would finish the process with an agreement that would determine once and for all what amount of licensing fees Apple is required to pay Motorola. In the end, this seems to be the best way, if not the only way, for the parties to negotiate a rate that takes into account the many elements of a licensing fee that are not part of this case but are critical to the determination of a fair, reasonable and non-discriminatory rate.
After Judge Crabb used this suggestion from Motorola in her order dismissing Apple's case, suddenly Apple decided to have a sit down with Google for Arbitration.

Funny uh ?

So yes, to all casual observers, it does seem Apple doesn't want to pay licensing. They always go for litigation, argue patent exhaustion, argue against injunctions for SEP/FRAND patents and generally just don't seem willing to sit down and negotiate until a judge makes it clear that the court won't rule in their favor.

Any player acting like Apple would deserve the same contempt from me. It has nothing to do with the fact that this is Apple. I never said they should pay extra, just that they should pay period. Apple is arguing that it doesn't have to pay or should pay less if anything than others.

----------

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Plus, you quoted the most Fandroid publication on the planet: groklaw.
Sorry, Groklaw is not a Fandroid site and he did not quote Groklaw at all, he quoted the order from the court. Groklaw republishes integral postings of court documents. They don't "magically" become "Fandroidish" because they were posted on Groklaw.

I assume you have no idea what Groklaw was built on and why if you think it's an Android fansite.
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