Apple Wins Long-Term Protection from Ban on Sales of 3G-Enabled Devices in Germany

[MacRumors]

Back in December, Motorola Mobility won a preliminary injunction against Apple in Germany that could have seen Apple barred from selling its 3G-enabled products such as the iPhone and cellular-capable iPad models in the country. Apple did indeed briefly pull all 3G devices with the exception of the iPhone 4S from its German online store earlier this month, only to put them back on sale a few hours later after a court temporarily suspended enforcement of the injunction.




But FOSS Patents now reports that Apple has won a much more significant decision in the ongoing case, as a court has now ruled that Motorola can not enforce the injunction for the duration of Apple's appeal in the case. With the appeals case perhaps taking as long as a year or more, Apple is no longer at risk of having its products removed from sale for the foreseeable future. The report notes that the ruling also calls into question whether Motorola will eventually prevail.

The Karlsruhe Higher Regional Court ("Oberlandesgericht Karlsruhe"), the appeals court within whose circuit the Mannheim Regional Court is based, decided today that Motorola Mobility is barred from further enforcement of its standard-essential patent injunction against Apple in Germany at least for the duration of the ongoing appeal (which I believe will take a year, if not more). And while today's decision is only a summary and preliminary decision that MMI could overturn during the course of the full-blown appellate proceedings, this indicates thatApple's appeal is highly likely to succeed -- and even if it didn't, Apple could realistically resolve the problem with limited additional concessions.

Much of the debate over the 3G patent case relates to the patents having been declared essential to standards for the technology, with Motorola having been required to license the intellectual property under fair, reasonable, and nondiscriminatory (FRAND) terms. Apple has now convinced the German courts that it has made sufficient good faith efforts at licensing the patent that any enforcement of the injunction by Motorola would be considered a breach of antitrust regulations.

Apple has been pushing for reform in the licensing and enforcement of FRAND patents, seeking to bring clarity to the complex landscape of patent lawsuits. That landscape involves both standards-essential FRAND patents that must be licensed in order to promote competition, as well as other feature and design patents that allow companies to protect certain other innovations and distinguish their products from those of their competitors.

These latest developments are separate from the current dispute that has seen Apple suspend iCloud push email functionality in Germany, as the patent at issue in that case has not been deemed subject to FRAND licensing and Motorola is thus free to pursue enforcement while Apple appeals the decision.

Article Link: Apple Wins Long-Term Protection from Ban on Sales of 3G-Enabled Devices in Germany

[jonnysods]

Big win for Apple.

[BobbyRond]

Can't we all just get along?

[dokujaryu]

Wirelessly posted (Mozilla/5.0 (iPhone; CPU iPhone OS 5_0_1 like Mac OS X) AppleWebKit/534.46 (KHTML, like Gecko) Version/5.1 Mobile/9A405 Safari/7534.48.3)

I want to be the first to say:

12.5 billion? LOLLOLLOLLOLLOLLOL

[Yujenisis]

I'm glad to see FRAND patent trolling not being tolerated.

I am wondering what Google/Motorola/Android's game plan is. They surely know they can't really get away with using FRAND patents as a weapon...

Is it an expensive war of attrition they are after?

I'm also left wondering if Tim Cook follow Steve's zeal to protect Apple's ideas?

Ah, delicious drama.

[Oletros]

In December, a court decided that Apple's offer was not FRAND and granted an injunction against the 3G products.

Now Apple has made another offer to Motorola and the court has decided that now it is FRAND so has lifted the injunction.

Where is the big win apart of the FUD that Mueller is spreading?

Originally Posted by Yujenisis

I'm glad to see FRAND patent trolling not being tolerated.

According to the judges, the troll here was Apple, not Motorola

[Konrad9]

I wish no one, Apple nor Motorola, was allowed to do crap like this with patents. The only people that are going to end up losing here are the us, the consumers.

[dokujaryu]

Originally Posted by Oletros

In December, a court decided that Apple's offer was not FRAND and granted an injunction against the 3G products.

Now Apple has made another offer to Motorola and the court has decided that now it is FRAND so has lifted the injunction.

According to the judges, the troll here was Apple, not Motorola

I think this is a gross simplification of what actually transpired. What Apple offered was not considered acceptable and by all accounts what was being demanded was not acceptable. So Apple iteratively amended their offer, as they have been doing for a long time, until the Judges were satisfied.

Apple knew that MMI was always going to find something to grouse about, but it needed to find out at which point the appeals court would conclude that enough is enough and tell MMI that refusing to accept this proposal is, at least based on the court's preliminary finding, an antitrust violation.

This means Apple's approach paid off and worked. Just because they amended the offer doesn't mean they gave them 2.25%, that's ludicrous. If anything, the Judges are now more likely to side with Apple and Microsoft's complains that Motorola is violating anti-trust.

[jhende7]

Originally Posted by Oletros

In December, a court decided that Apple's offer was not FRAND and granted an injunction against the 3G products.

Now Apple has made another offer to Motorola and the court has decided that now it is FRAND so has lifted the injunction.

Where is the big win apart of the FUD that Mueller is spreading?






According to the judges, the troll here was Apple, not Motorola

Your reading comprehension has hit a a new time low.

[*LTD*]

All this for $12 billion.

[Dcuellar]

Originally Posted by Oletros

In December, a court decided that Apple's offer was not FRAND and granted an injunction against the 3G products.

Now Apple has made another offer to Motorola and the court has decided that now it is FRAND so has lifted the injunction. Am I missing something?

Where is the big win apart of the FUD that Mueller is spreading?






According to the judges, the troll here was Apple, not Motorola

What? How do you know that another offer was made after the injunction? How do you know the offers were not all made before the suit?

Apple is trying to sell it's product in Germany. How does that qualify them as being trolls?

[Oletros]

Originally Posted by dokujaryu

This means Apple's approach paid off and worked. Just because they amended the offer doesn't mean they gave them 2.4%, that's ludicrous

Can you point me where I have said that Apple offered 2.4% or have accepted what MM was asking?

I have just said that the new offer was accepted by the judges so the ban was lifted.

Offer not FRAND according to the judges => ban
Offer FRAND according to the judges => ban lifted

This has nothing to do with what Mueller is saying

[Macman45]

Originally Posted by BobbyRond

Can't we all just get along?

This is Apple we are talking about here.. Very protective, very litigious...It's become part of the Apple way of doing things. much is also at stake here too.

[Oletros]

Originally Posted by Dcuellar

What? How do you know that another offer was made after the injunction? How do you know the offers were not all made before the suit?

Perhaps you should read the Bloomberg news

[dokujaryu]

Originally Posted by Oletros

Can you point me where I have said that Apple offered 2.4% or have accepted what MM was asking?

I have just said that the new offer was accepted by the judges so the ban was lifted.

Offer not FRAND according to the judges => ban
Offer FRAND according to the judges => ban lifted

This has nothing to do with what Mueller is saying

I disagreed that Apple was "trolling". Patent trolling to me is extorting other companies with your patents (generally purchased rather than earned). The internet agrees with that definition. Apple had a strategy, to make Motorola, or I suppose Google (since they are the buyers rather than the innovators) look like patent trolls, and near as I can tell it worked. In order for Apple to find the line, they had to start BELOW the line and inch it up towards reasonability. You don't just hand your adversairy what they want cause a Judge says so.

Have you worked in business before?

[Mad-B-One]

The lawyer! By German regulations, the lawyers cash in at a rate determined by the value of what is faught over - unlike USA where it is a part of the settlement... Boy, I would like to get in on either side of these legal teams.

Enough trolling. They probably just hired lawyers and therefore they just get a sallery. But the courts are happy - for them the rule still appies: Moto says its $12Bn, the court tell them the percentage fee. I can see how Germany might lower income tax after this trial is over (yea I know, I troll again - my father is just paying his 56% tax rate out of the vazoo as an independent achitect).

[Consultant]

Originally Posted by Macman45

This is Apple we are talking about here.. Very protective, very litigious...It's become part of the Apple way of doing things. much is also at stake here too.

Apple had licensed FRAND technologies when it's offered at a FAIR rate.

This is about a company going under trying to extort unreasonable amount of license fee for FRAND patents.

[dokujaryu]

Originally Posted by Dcuellar

What? How do you know that another offer was made after the injunction? How do you know the offers were not all made before the suit?

Apple is trying to sell it's product in Germany. How does that qualify them as being trolls?

Apple is cited to have amended the proposal. That doesn't necessarily mean more money, but it probably does.

The appeals court summarily held that Apple has made an amended proposal for taking a license to MMI's patents on FRAND terms that should be acceptable to MMI, turning any further attempts to ban Apple's iPhone and iPad products into a violation of applicable antitrust law.

[Oletros]

Originally Posted by jhende7

Your reading comprehension has hit a a new time low.

Perhaps the reading comprehension problems are not mine.

http://www.bloomberg.com/news/2012-0...-sales-1-.html

Apple made a first request to the appeals court in January over the issue. At that time, the judges said the terms Apple offered weren’t adequate, supporting the reasoning of the lower court in Mannheim, Germany, that had issued the December verdict. Apple then revised its offer.

Motorola Mobility, which forced Apple to remove some iPad and iPhone models from its German online store for a short period, can’t enforce the verdict during an appeal. The ruling was issued after the iPad maker revised license-agreement terms it offered Motorola Mobility, the court said in an e-mailed statement today.
“At the current state of the proceedings, it is to be assumed that Motorola Mobility would violate its duties under antitrust rules if it continues to ask Apple to stop the sales,” the court said in a statement.

[vrDrew]

Originally Posted by Oletros

According to the judges, the troll here was Apple, not Motorola

Er, no.

The Karlsruhe Court formally told MMI in its ruling its refusal to accept Apple's offer is potentially a violation of antitrust law.

“At the current state of the proceedings, it is to be assumed that Motorola Mobility would violate its duties under antitrust rules if it continues to ask Apple to stop the sales,” the court said in a statement.

This is a "big win" for Apple because it takes the Injunction tool out of MMI/Google's hand.

Google and Motorola aren't really interested in royalties from Apple. They want Apple to cross-license its non-FRAND patents, because without them, its Android phone user experience is going to be compromised.

Google/MMI's strategy was based on using German courts (which give rights holders greater power in patent disputes) to issue Injunctions that would prevent the iPhone being sold in Germany - one of Europe's biggest markets - until the case could be settled. All it needed to do was keep rejecting whatever offer Apple put forth - or make their own "offer" that nobody could accept.

The flaw in Google/Motorola's reasoning was relying on Standard-Essential Patents. They figured since Apple couldn't make a working phone without them, they'd have them over a barrel. But what is happening now is that courts and regulatory bodies are waking up to the dangers of what they are doing.

If Google/Motorola can't use the Injunction tool to get a ban in place, then they are simply going to have to wait for the court to rule on what a "Fair and Reasonable" royalty is. Its almost certainly not going to be 2.5% of the sales price of the device. But, even if it was, thats not what Google/Motorola wanted. They wanted to force Apple to have to cross-license.

I'll also note that this is also a huge win for Microsoft: Google/Motorola are trying the same thing with them. They are demanding a 2.5% royalty rate on PCs and other devices on their wi-fi and H264 video patents. If they could get an injunction preventing Microsoft from selling Windows in Germany it would be catastrophic - something MS couldn't accept. So they were hoping to use the threat of an injunction to force MS to cross-license its non-FRAND IP, for which a number of Android phone makers are already paying Microsoft per-handset royalties.

Read Microsoft's post on the subject.

Unfortunately, Motorola has refused to make its patents available at anything remotely close to a reasonable price. For a $1,000 laptop, Motorola is demanding that Microsoft pay a royalty of $22.50 for its 50 patents on the video standard, called H.264. As it turns out, there are at least 2,300 other patents needed to implement this standard. They are available from a group of 29 companies that came together to offer their H.264 patents to the industry on FRAND terms. Microsoft’s patent royalty to this group on that $1,000 laptop?

Two cents.

I think we all know who the Patent Troll in the Courtroom is.

[Oletros]

Originally Posted by dokujaryu

I disagreed that Apple was "trolling". Patent trolling to me is extorting other companies with your patents (generally purchased rather than earned).

And I disagree too, thay was a sarcastic answer to

I'm glad to see FRAND patent trolling not being tolerated.

Apple was not trolling, evidently

----------

Originally Posted by vrDrew

This is a "big win" for Apple because it takes the Injunction tool out of MMI/Google's hand.

It takes out when there is a FRAND offer, as the judges had said

Originally Posted by vrDrew

because without them, its Android phone user experience is going to be compromised.

And you know that because...

Originally Posted by vrDrew

All it needed to do was keep rejecting whatever offer Apple put forth - or make their own "offer" that nobody could accept.

No, because that is the courts are for, to rule what is FRAND or not.

Originally Posted by vrDrew

If Google/Motorola can't use the Injunction tool to get a ban in place, then they are simply going to have to wait for the court to rule on what a "Fair and Reasonable" royalty is. Its almost certainly not going to be 2.5% of the sales price of the device. But, even if it was, thats not what Google/Motorola wanted. They wanted to force Apple to have to cross-license.

And this is what has happened, UNTIL the offer was ruled as FRAND there has been an injunction. The moment the offer was FRAND the injunction was lifted

[dokujaryu]

Originally Posted by vrDrew

Er, no.

The Karlsruhe Court formally told MMI in its ruling its refusal to accept Apple's offer is potentially a violation of antitrust law.



This is a "big win" for Apple because it takes the Injunction tool out of MMI/Google's hand.

Google and Motorola aren't really interested in royalties from Apple. They want Apple to cross-license its non-FRAND patents, because without them, its Android phone user experience is going to be compromised.

Google/MMI's strategy was based on using German courts (which give rights holders greater power in patent disputes) to issue Injunctions that would prevent the iPhone being sold in Germany - one of Europe's biggest markets - until the case could be settled. All it needed to do was keep rejecting whatever offer Apple put forth - or make their own "offer" that nobody could accept.

The flaw in Google/Motorola's reasoning was relying on Standard-Essential Patents. They figured since Apple couldn't make a working phone without them, they'd have them over a barrel. But what is happening now is that courts and regulatory bodies are waking up to the dangers of what they are doing.

If Google/Motorola can't use the Injunction tool to get a ban in place, then they are simply going to have to wait for the court to rule on what a "Fair and Reasonable" royalty is. Its almost certainly not going to be 2.5% of the sales price of the device. But, even if it was, thats not what Google/Motorola wanted. They wanted to force Apple to have to cross-license.

I'll also note that this is also a huge win for Microsoft: Google/Motorola are trying the same thing with them. They are demanding a 2.5% royalty rate on PCs and other devices on their wi-fi and H264 video patents. If they could get an injunction preventing Microsoft from selling Windows in Germany it would be catastrophic - something MS couldn't accept. So they were hoping to use the threat of an injunction to force MS to cross-license its non-FRAND IP, for which a number of Android phone makers are already paying Microsoft per-handset royalties.

Read Microsoft's post on the subject.

I think we all know who the Patent Troll in the Courtroom is.

This is an excellent analysis of the larger game being played here between all four companies and I wish Mac Rumors had more commentary like this.

----------

Originally Posted by Oletros

And this is what has happened, UNTIL the offer was ruled as FRAND there has been an injunction. The moment the offer was FRAND the injunction was lifted

Oletros, clearly you understand what occured here, but I'm failing to understand the point of your posts.

The obvious winnner here is Apple becuase thier strategy to find the lowest possible agreeable deal to German courts was a success. By starting low and iteratively increasing their offer until Motorola was forced to accept it by the courts is a win.

Apple is also the clear winner here becuase the talk of anti-trust is now on the table in the courts. There can be no question as to the ramifications of continuing to extort Apple and Microsoft with these patents beyond the point of reasonability. How do you establish the point of reasonability? See Apple's strategy in my previous paragraph.

It's also a win for Apple because injunction is now completely off the table. Off the table for so long that Apple can easilly move on to new technologies before the trial is even complete.

Win, Win, Win for Apple. The end.

I think it's great that you can read and repeat what you read. However, that has no bearing what what I, vrDrew, and others are saying.

[Oletros]

Originally Posted by dokujaryu

The obvious winnner here is Apple becuase thier strategy to find the lowest possible agreeable deal to German courts was a success. By starting low and iteratively increasing their offer until Motorola was forced to accept it by the courts is a win.

Really? Both of them have been forced to accept what the courts say or face the consequences. Or do you think that Apple could iterate for so many times?

You seem to say that Apple has been making a lot of offers when there has been only two, so no, they were not iterating nothing.

Originally Posted by dokujaryu

Apple is also the clear winner here becuase the talk of anti-trust is now on the table in the courts. There can be no question as to the ramifications of continuing to extort Apple and Microsoft with these patents beyond the point of reasonability. How do you establish the point of reasonability? See Apple's strategy in my previous paragraph.

Anti-trust has been in the table since the beginning, it hasn't changed

Originally Posted by dokujaryu

It's also a win for Apple because injunction is now completely off the table. Off the table for so long that Apple can easilly move on to new technologies before the trial is even complete.

No, is not out of the table, is out of the table for THIS case in concrete and Mueller is totally wrong when he says that the appeal can last a year, they have been very fast in Germany.

Originally Posted by dokujaryu

I think it's great that you can read and repeat what you read. However, that has no bearing what what I, vrDrew, and others are saying.

Perhaps that we don't agrre doesn't mean that I can't understand. Or you would like to hear that you can read but not understand.

[Peace]

A. We know Google wanted 2.5 %
B. We know Apple offered less and the Lower court ruled against Apple
C. We know Google didn't accept Apple's initial offer and demanded 2.5 %
D. We know Apple offered more but still less than 2.5 %
E. We know Google declined
F. We know the higher court said Apple's new offer was good enough to lift any ban
G. We know Google hasn't ended the lawsuit
F. We know the higher court has delayed the ban because it believes Apple's offer was good enough for FRAND
G. We know Google disagrees.

Who is the real troll here ?

Google.

I say Google now because their purchase of Motorola has been approved.

[psonice]

I think it's important to understand why the battleground for this is germany. Under german law in particular, a holder of a FRAND patent can ask for more or less what they want (which is generally against the stipulations of the FRAND agreement), and the would-be licensee can reject the offer and take it to court. Normally an injunction can't happen, because it's a FRAND patent - they're supposed to make the company (in this case apple) pay instead. However, apple must honour the rejected agreement despite rejecting it, while they appeal, or motorola can get an injunction - in other words, apple would potentially pay motorola billions or risk an injunction. They chose to risk the injunction, because the alternative is clearly pretty crazy (I think the case law is even patent-holder friendly to the point where apple couldn't get the money back if they win the appeal!)

Then there's the appeal, and the current ban on injunctions. The injunction is only stopped if the court considers it "highly likely" that apple will win the appeal, that's why it's so significant. The judges are basically telling motorola they think apple's current offer (whatever it may be) is valid, they'll win the appeal, and any further action on motorola's part is seriously unwise because they'll likely be guilty of antitrust (if they're not already of course).

We won't know the full outcome for ages - this is a full appeal, not a fast-track preliminary injunction court (where things do happen in a couple of months). I suspect though that the court will have set a reasonably low figure for the patent royalties, and it probably won't be based on the retail cost of the device. That's reasonable, and it's in line with what everyone else charges for FRAND patents.

It's bad for motorola because they've lost a massive weapon in the patent war. If they can't get apple devices banned on this, they have to rely on non-essential patents - which are the ones apple can work around (like they're doing with iCloud in germany now). Motorola's patents are *very* weak compared to apple's, once you strip out the FRAND stuff. That puts them in a very weak position at the bargaining table (which is what this is all about).

Put simply: Motorola want access to all of apple's patented inventions. Apple don't want to give it to them, but need access to some of motorola's. If motorola is strong enough, they'll get access to everything. If Apple is strong, motorola get nothing and apple pay them some money for the important stuff. This is the battle. If apple win, android will be crippled, with lots of features and functionality limited or replaced by inferior versions (like the "slide out of circle" instead of "slide to unlock", or the bouncy-scroll). Likely neither will win outright, but apple will get to cripple android more than it has already.