EU Antitrust Ruling Says Google Abusing Patent Position in German Lawsuit Against Apple

[botinhas]

It's about time to put the push notifications back on iCloud here in Germany!

 

[Oletros]

Android ripped IOS off. Apple was certain it had a good case, and took OEMs who were making money off Android devices to court. They have since scored several wins, and OEMs like HTC have entered licensing agreements with Apple.

And exactly what ripped off?

Using FRAND patents to obtain injunctions is as anti-trust and abusive as you can possibly get.

No, it isn't, and the EC text show it clear as th FTC settling made it clear

 

[Mr.damien]

Another slap in the face of Google. If they thought purchasing patents via Motorola was a good idea to bolster their patent portfolio then they are sorely mistaken. Motorola patents are worth jack ****.

Google is such a hypocritical company. On the one hand they talk to the press about openness and how they want peace with Apple. On the other hand they try to enforce FRAND patents against other companies.

And they push flash and Webm instead of h264 ...

 

[Saladinos]

And yet Apple are allowed to screw Samsung over a slab with rounded corners in the US? And allowed to bundle Safari and iTunes with OS X in Europe while Microsoft got screwed in an EU antitrust ruling over the same behaviour?

Let's face it. The whole world's legal system is f**ed. If such a thing were possible, I'd just like to see an outright ban on Apple vs Android OEM lawsuits and visa versa. This has got ridiculous now. I'm going to go and buy an Openmoko device just so I'm not supporting any of these idiots.

In a nutshell, yes they are allowed to do that.

Companies sign contracts that say they will give a license to certain (not all) of their patents to anybody who asks at a fair and non-discriminatory rate. Those companies cannot refuse a license to anybody. Motorola and Samsung have been arguing that they should be allowed to ignore those commitments they made with no reason. The idea is that if they somehow manage to get an injunction which legally bars Apple from making a telephone, Apple would have a gun to its head to pay whatever exorbitant rate they want. They basically want the courts to help them blackmail Apple.

What Motorola and Samsung are doing has enormous repercussions throughout the entire technology industry. What if Qualcomm was to act in that way? The way the Common Law system works is by precedent. If Moto or Samsung got their way, it would set a precedent that would cripple innovation all over the industry.

Bear in mind that the actual content of the patents is irrelevant in this context. Samsung and Motorola would still be outrageously abusing their standards-essential patents.

---

This isn't just a legal battle, though - it's also a PR battle. If a court finds that you ripped off the good ideas of your biggest competitor, it doesn't do much for your public image. If you're Samsung or Motorola, how do you protect your brand against that?

The answer is by muddying the waters. They mixed their standards-essential patents in to the picture (that's the outrageous, abusive act that the FTC and the EU have both ruled against). They started lots of suits against Apple in countries where they thought they could get a quick injunction to put that gun to Apple's head (basically, Germany).

Law is complex, and most people don't care about the details. I'm not surprised people such as yourself can't be bothered with the details and just say "oh, they're all as bad as each other". That's what Samsung and Moto want you to think so you don't look too closely at what they're actually doing.

Let's imagine we're neighbours. I break your window and refuse to pay; you sue me. Then I start suing you because the colour of your hair is offensive, and because your kid's ball landed in my garden, and all kinds of frivolous stuff. Obviously my suits are all total horsecrap, but to everybody else in the street who can't be bothered with the details, we're just at war over something and they can't be bothered with who's right or wrong.

If by some luck I do manage to prevail on any of them, I'll use it as leverage against you to drop your (valid) suit against me.

And that's what they did. As I said, Samsung and Moto have lost all of their attempts to get Apple's products banned with their SEPs. Apple, on the other hand, do have a legitimate case and are winning their cases.

 

[Oletros]

In a nutshell, yes they are allowed to do that.

Companies sign contracts that say they will give a license to certain (not all) of their patents to anybody who asks at a fair and non-discriminatory rate. Those companies cannot refuse a license to anybody. Motorola and Samsung have been arguing that they should be allowed to ignore those commitments they made with no reason. The idea is that if they somehow manage to get an injunction which legally bars Apple from making a telephone, Apple would have a gun to its head to pay whatever exorbitant rate they want. They basically want the courts to help them blackmail Apple.

What Motorola and Samsung are doing has enormous repercussions throughout the entire technology industry. What if Qualcomm was to act in that way? The way the Common Law system works is by precedent. If Moto or Samsung got their way, it would set a precedent that would cripple innovation all over the industry.

You know that have been injunctions for SEP patents, don't you?

First, those cases have nothing to do with common law and, second, they don't set any precedent

 

[Saladinos]

No, it isn't, and the EC text show it clear as th FTC settling made it clear

Yes it is, and the EC and FTC say that. (yes the EC statement is preliminary, but that doesn't mean it's a fairy tale)

Here you go (taken from the text of the EC ruling itself):

the acceptance of binding third party determination for the terms of a FRAND licence in the event that bilateral negotiations do not come to a fruitful conclusion is a clear indication that a potential licensee is willing to enter into a FRAND licence. This process allows for adequate remuneration of the SEP-holder so that seeking or enforcing injunctions is no longer justified once a potential licensee has accepted such a process.

So there you have it: it is unjustifiable to seek injunctions against a willing licensee over standards-essential patents. Obviously if somebody point-blank refuses to take a license over a valid SEP regardless of the rate, the SEP holder should have the right to do something about it.

The EC ruling also says that Apple was quite clearly a willing licensee.

The ruling is about a specific case, but it doesn't only apply to this case and nothing else. I'll let Florian Muller explain it to you:

National courts of EU member states such as Germany are required by European law, which trumps national law in antitrust and certain other fields, to avoid rulings that would be inconsistent with the Commission's interpretation of EU law. With the Q&A the Commission published today, it's still not 100% clear (it probably never will be) exactly where the Commission draws the line, but key elements of the Orange Book case law by German regional courts and higher regional courts have now been explicitly labeled as "potentially anti-competitive".

So this will have repercussions for future cases. Now that German courts have a better understanding of how the EC interprets EU law, their rulings are required to be consistent with it (i.e. precedent is being set).

----------

First, those cases have nothing to do with common law and, second, they don't set any precedent

Common law does not apply to the cases in Germany. It does apply to cases in the USA.

 

[apolloa]

Biased? How about we all just let the courts decide who are right and wrong, and who abuse the system? It is as simple as that. EU has hit Google, Samsung and today Motorola with abusing patents. Fact. Apple? Not a single time. Fact.

Let us just sit back and watch all the paid android scammers come here and flood the forum with "trying to patent rectangle" "apple are the real abusers" etc. Samsung might think its money well spent having these commenters spam all sites with this useless junk, but I find it nothing but hilarious.

See what I mean, you just had to reply with biased bogus opinion that is flawed. But you carry on believing in the saint that is Apple what ever makes you happy. Just don't quote me, especially if your the tin foil hat brigade believing paid android fans come on here to ruin your day

I'm pretty sure that people don't care how you see them but never mind

yeah you were saying???... My point proved by the above me thinks...

 

[Saladinos]

What you fail to notice is that this makes it more likely that corporations will not take part in standards, why offer their patents for a standard so they cannot use them defensively at all, better keep them to yourself and then sue for billions like apple.

What you fail to notice is that companies have never expected to be able to use SEPs offensively. The industry is outraged at this.

How did things like WiFi, h.264, GSM, UMTS, LTE, Bluetooth, RFID and the like come about then? Obviously there is still significant financial incentive in having everybody who uses a WiFi chip pay you royalties.

Here's a list of standards defined by ETSI. It's enormous. Covers everything from "Advanced Surface Movement Guidance and Control Systems" (Aeronautical) to Smart Grids for power transmission. Any patent that reads on any of those standards had been committed FRAND (that's ETSI's job - to ensure all of that happens).

Now consider that ETSI is just one (technically-oriented) standards-setting organisation. There are hundreds of others covering everything up to and including green building design.

Companies will still participate in standards. Some patents are more valuable as competitive differentiators (like rubber-banding when scrolling); other patents are more valuable as part of a broadly-adopted common standard (like those reading on WiFi).

 

[Oletros]

Yes it is, and the EC and FTC say that. (yes the EC statement is preliminary, but that doesn't mean it's a fairy tale)

Here you go (taken from the text of the EC ruling itself):

So there you have it: it is unjustifiable to seek injunctions against a willing licensee over standards-essential patents. Obviously if somebody point-blank refuses to take a license over a valid SEP regardless of the rate, the SEP holder should have the right to do something about it.

The EC ruling also says that Apple was quite clearly a willing licensee.

Thanks for proving my point, the EC (and the FTC last winter) clearly stated that injunctions can be made for SEP so "Using FRAND patents to obtain injunctions is as anti-trust and abusive as you can possibly get." id false as I have said

The ruling is about a specific case, but it doesn't only apply to this case and nothing else. I'll let Florian Muller explain it to you:

So this will have repercussions for future cases. Now that German courts have a better understanding of how the EC interprets EU law, their rulings are required to be consistent with it (i.e. precedent is being set).

Please, don't quote Florian Mueller opinions, apart that he has a poor track record, he is paid by Oracle and Microsoft, companies that has been or are involved in lawsuits against Google or Motorola.

Common law does not apply to the cases in Germany. It does apply to cases in the USA.

And the FTC clearly stated that injunctions can be made against SEP. And the Apple-Motorola and Microsoft-Motorola are good examples, Microsoft was willing to accept a binding third party determination, Apple was not.

----------

The industry is outraged at this.

Source?

 

[Saladinos]

Thanks for proving my point, the EC (and the FTC last winter) clearly stated that injunctions can be made for SEP so "Using FRAND patents to obtain injunctions is as anti-trust and abusive as you can possibly get." id false as I have said

No, you're wrong. The EC never says that injunctions are OK; it says that while the SEP holder stands to receive adequate remuneration, injunctive relief is not justifiable.

It doesn't say that companies are allowed to seek injunctions for SEPs; it could still be unjustifiable to seek injunctions even if the licensee were unwilling. The EC doesn't address what happens in that case.

Please, don't quote Florian Mueller opinions, apart that he has a poor track record, he is paid by Oracle and Microsoft, companies that has been or are involved in lawsuits against Google or Motorola.

Debate the facts, not the people. Even if he was secretly Tim Cook, he wasn't expressing an opinion - the passage I quoted was explaining something factual.

Courts of EU members states have to avoid rulings inconsistent with the EC's interpretation of EU law. Fact.

And the FTC clearly stated that injunctions can be made against SEP. And the Apple-Motorola and Microsoft-Motorola are good examples, Microsoft was willing to accept a binding third party determination, Apple was not.

That is not what the FTC said. Here is what they said:

The FTC alleged that this type of patent hold-up is what the standard setting organizations sought to prevent by instituting FRAND licensing requirements. According to the FTC, if left unchecked, this type of patent hold-up can lead to higher prices, as companies may pay higher royalties for the use of Google’s patents because of the threat of an injunction, and then pass those higher prices on to consumers. This may cause companies in technology industries to abandon the standard-setting process and limit or forgo investment in new technologies, according to the agency.

To remedy this concern, Google has agreed to a Consent Order that prohibits it from seeking injunctions against a willing licensee, either in federal court or at the ITC, to block the use of any standard-essential patents that the company has previously committed to license on FRAND terms.

The FTC doesn't write the law or set legal precedent, so they're careful not to make sweeping statements about what is or isn't allowed. Still, it's pretty clear that they don't want Google threatening injunctions over SEPs.

Also, the EC seems pretty happy to conclude that Apple was a willing licensee. Why do you think otherwise?

Source?

How about all of the amicus briefs that have supported Microsoft and Apple against Moto/Google/Samsung? All the biggest players in the industry (except Qualcomm) came out against it.

Even Qualcomm only really said that hold-up wasn't a problem and that it didn't need sweeping new precedent. They didn't try and defend what Moto is doing.

 

[tongxinshe]

i would say a "rubber-banding animation" is a pretty standard or essential patent that should not require any license.

The so-called patents Apple was using against Samsung were the only ones it could get patents on for their devices’ look & feel, not really technology essential stuff. What Apple was trying to say is “I spent a lot of effort to establish the image of black turtle-neck + blue jeans into consumers’ heart, please don’t try to take a free ride”.

In another words, Apple’s lawsuit was for design, not technical patents. It makes sense to have antimonopoly policy about the technology patents. There is never a need to have any antimonopoly policy about design patents.

 

[tongxinshe]

And yet Apple are allowed to screw Samsung over a slab with rounded corners in the US? And allowed to bundle Safari and iTunes with OS X in Europe while Microsoft got screwed in an EU antitrust ruling over the same behaviour?

Let's face it. The whole world's legal system is f**ed. If such a thing were possible, I'd just like to see an outright ban on Apple vs Android OEM lawsuits and visa versa. This has got ridiculous now. I'm going to go and buy an Openmoko device just so I'm not supporting any of these idiots.

You never really understood any of these stuff you are talking about in your paragraph above.

Apple sued Samsung because Samsung not just copied Apple's genius packaging idea, but also cloned every details of Apple’s iPhone and iPad’s look & feel (until its GS3 and Note refresh). It is all about design, not really technology.

One good analogy would be like, say, imagine a world where shirts and skirts were always separate garments, and one company came up a great looking one-piece dress, with polished waist curve, stylish lace at certain places and shape. Consumers like it, so a lot of other companies start to produce similar one-piece dresses, and one of them is just so shameless to copy all possible details of the originator’s every previous design, to even the tiny shapes and exact locations of the lace. Won’t you think the latter company should be banned of doing this kind of shameless thing continuously? (Of course, in the reality, Samsung is not just shameless, but also extremely cunning. It achieved its first stage of establishing brand and gaining enough market by Cloning iPhone/iPad, then shifted away with the customer base and fame, with a very crafty timing.)

Microsoft’s bundling IE becomes anti-competitive because it had over 95% market share, thus effectively squeezing living space of other browsers. On the other hand, Mac OS isn’t of any real importance to the market, thus its bundling Safari causes no real harm to no one, and might even be harmful to itself instead.

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I don't think anybody has an issue with fair and reasonable use of essential patents like this... But what's so fair and reasonable about being able to patent a rectangle in the first place?!

You really bought Samsung’s deceitful advertising tricks without a grain of salt! What a naive person!!!

----------

What you fail to notice is that this makes it more likely that corporations will not take part in standards, why offer their patents for a standard so they cannot use them defensively at all, better keep them to yourself and then sue for billions like apple.

If you don’t make yours standard, others will make theirs, then your patent will be totally useless since the world (the network, the carriers, the parts, etc.) will be built around a totally different set of things.

 

[Oletros]

No, you're wrong. The EC never says that injunctions are OK; it says that while the SEP holder stands to receive adequate remuneration, injunctive relief is not justifiable.

It doesn't say that companies are allowed to seek injunctions for SEPs; it could still be unjustifiable to seek injunctions even if the licensee were unwilling. The EC doesn't address what happens in that case.

Wrong, the eC says that they don't question injunctive relief:

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.

Debate the facts, not the people. Even if he was secretly Tim Cook, he wasn't expressing an opinion - the passage I quoted was explaining something factual.

Courts of EU members states have to avoid rulings inconsistent with the EC's interpretation of EU law. Fact.

No, he is making an opinion, not stating facts, because EC has not said that injunctive relief can't be asked. And Mueller is trying to bend the facts to serve his FUD, as usual.

That is not what the FTC said. Here is what they said:


The FTC doesn't write the law or set legal precedent, so they're careful not to make sweeping statements about what is or isn't allowed. Still, it's pretty clear that they don't want Google threatening injunctions over SEPs.

Wrong, the FTC clearly stated that they don't want threatening injunctions over SEP against a willing licensee. they don't stop asking injunctions against non willing licensees

Also, the EC seems pretty happy to conclude that Apple was a willing licensee. Why do you think otherwise?

Can you point where I have think otherwise?

How about all of the amicus briefs that have supported Microsoft and Apple against Moto/Google/Samsung? All the biggest players in the industry (except Qualcomm) came out against it.

Even Qualcomm only really said that hold-up wasn't a problem and that it didn't need sweeping new precedent. They didn't try and defend what Moto is doing.

Amicus briefs from Apple and Intel is ALL the industry? Really?

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In another words, Apple’s lawsuit was for design, not technical patents.

Wrong, it was for some design patents and some functional patents.

By the way, Samsung copied so shamefully the iPad that the jury concluded that they didn't infringed any design patent

 

[gnasher729]

And yet Apple are allowed to screw Samsung over a slab with rounded corners in the US? And allowed to bundle Safari and iTunes with OS X in Europe while Microsoft got screwed in an EU antitrust ruling over the same behaviour?

Not over a "slab with rounded corners". You probably haven't heard it, but Samsung actually has at least one design patent for a phone with a rectangular shape with rounded corners. Just like Apple. The problem was that instead of making a phone that looked like Samsung's design patent, Samsung made one that looked like Apple's design patent.

And you are completely missing the point comparing Apple and Microsoft. Microsoft had a huge monopoly in the desktop / laptop operating system market when that ruling against them was made. Even today, they still have a monopoly even though the alternatives have become stronger. Apple's market share is comparatively tiny.

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I don't think anybody has an issue with fair and reasonable use of essential patents like this... But what's so fair and reasonable about being able to patent a rectangle in the first place?!

That must be the most stupid post ever. Nobody has ever received a patent for a rectangle. But Samsung actually received a design patent for a phone with rectangular shape and rounded corners (and some other details, because nobody would ever get a design patent for a rectangular shape and rounded corners at all), if that is what you actually mean.

----------

To be fair, this is MacRumors - you weren't expecting an anti-Apple slant, were you?

From you, anytime, anywhere.

 

[blahblah100]

They most certainly don't meet the definition of a patent troll. A patent troll wants money for use of a patent (or more often than not, wants money in order to stop suing you, because being sued is expensive, even if you win in the end). Google on the other hand wants to restrict competition.

I've come up with the 'MacRumors Test' (based on observation of this site) to determine if they are a patent troll. If the answer is yes to the following question, they are a patent troll.

1) Are they litigating against Apple?

So, according to my research, they most certainly DO meet the definition of a patent troll.


Most of this research is from reading all the legal experts on this site, so I know it's fool proof.

 

[JAT]

But you posted to the article so obviously you do.

I'm sorry, but I just have to point out this is an incorrect proof.

 

[MacinDoc]

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.

In other words, by the "specific circumstances present in this case" (i.e, the investigation of Moto/Google's use of injunctive measures against Apple over their dispute regarding the licensing of these SEPs), Apple was not an unwilling licensee, as you previously argued.

And if Apple was a willing licensee, then this explains why Moto/Google could be considered to be abusing SEPs by seeking injunctive relief for a dispute over FRAND licensing for those SEPs.

Personally, I think that disputes like this involving SEPs should be subject to binding third party arbitration regarding the terms of FRAND licensing, rather than wasting courts' time and resources. Otherwise, nobody will want to use the standards due to exorbitant and/or unpredictable costs, and potential production delays, and standard protocols will slowly disappear, to be replaced by proprietary solutions.

 

[Oletros]

In other words, by the "specific circumstances present in this case" (i.e, the investigation of Moto/Google's use of injunctive measures against Apple over their dispute regarding the licensing of these SEPs), Apple was not an unwilling licensee, as you previously argued.

Can you point where I have said that Apple was not a willing licensee in this case?

 

[ad1815]

-

One of the most insightful analysis of the patent war

In a nutshell, yes they are allowed to do that.

Companies sign contracts that say they will give a license to certain (not all) of their patents to anybody who asks at a fair and non-discriminatory rate. Those companies cannot refuse a license to anybody. Motorola and Samsung have been arguing that they should be allowed to ignore those commitments they made with no reason. The idea is that if they somehow manage to get an injunction which legally bars Apple from making a telephone, Apple would have a gun to its head to pay whatever exorbitant rate they want. They basically want the courts to help them blackmail Apple.

What Motorola and Samsung are doing has enormous repercussions throughout the entire technology industry. What if Qualcomm was to act in that way? The way the Common Law system works is by precedent. If Moto or Samsung got their way, it would set a precedent that would cripple innovation all over the industry.

Bear in mind that the actual content of the patents is irrelevant in this context. Samsung and Motorola would still be outrageously abusing their standards-essential patents.

---

This isn't just a legal battle, though - it's also a PR battle. If a court finds that you ripped off the good ideas of your biggest competitor, it doesn't do much for your public image. If you're Samsung or Motorola, how do you protect your brand against that?

The answer is by muddying the waters. They mixed their standards-essential patents in to the picture (that's the outrageous, abusive act that the FTC and the EU have both ruled against). They started lots of suits against Apple in countries where they thought they could get a quick injunction to put that gun to Apple's head (basically, Germany).

Law is complex, and most people don't care about the details. I'm not surprised people such as yourself can't be bothered with the details and just say "oh, they're all as bad as each other". That's what Samsung and Moto want you to think so you don't look too closely at what they're actually doing.

Let's imagine we're neighbours. I break your window and refuse to pay; you sue me. Then I start suing you because the colour of your hair is offensive, and because your kid's ball landed in my garden, and all kinds of frivolous stuff. Obviously my suits are all total horsecrap, but to everybody else in the street who can't be bothered with the details, we're just at war over something and they can't be bothered with who's right or wrong.

If by some luck I do manage to prevail on any of them, I'll use it as leverage against you to drop your (valid) suit against me.

And that's what they did. As I said, Samsung and Moto have lost all of their attempts to get Apple's products banned with their SEPs. Apple, on the other hand, do have a legitimate case and are winning their cases.

 

[Kaibelf]

i would say a "rubber-banding animation" is a pretty standard or essential patent that should not require any license.

Obviously you don't know what this is about then. De facto things like that don't matter. It's about submitting your patent for world standards. Think of radio. Or television. Or radar.

 

[Oletros]

i would say a "rubber-banding animation" is a pretty standard or essential patent that should not require any license.

standard or essential? No way, no smartphone needs it to work

 

[TMay]

Have you actually read the EC text?

Apart that it is not a final thing he clearly states that it only applies to this single case so no, it is not a fundamental case and it doesn't forbides injunctions with FRAND patents and before calling others ignorants you have to read the text

The bulk of the preliminary ruling is not specific to Apple, and I have bolded those passages.

"In the case at hand, the Commission is of the preliminary view that Apple's willingness to enter into a FRAND licence manifested itself in particular by its acceptance to be bound by a German court's determination of a FRAND royalty rate. The Commission's preliminary view is that the acceptance of binding third party determination for the terms of a FRAND licence in the event that bilateral negotiations do not come to a fruitful conclusion is a clear indication that a potential licensee is willing to enter into a FRAND licence. This process allows for adequate remuneration of the SEP-holder so that seeking or enforcing injunctions is no longer justified once a potential licensee has accepted such a process.

By contrast, a potential licensee which remains passive and unresponsive to a request to enter into licensing negotiations or is found to employ clear delaying tactics cannot be generally considered as 'willing'.

In addition, in the Commission's preliminary view, the fact that the potential licensee challenges the validity, essentiality or infringement of the SEP does not make it unwilling where it otherwise agrees to be bound by the determination of FRAND terms by a third party. In the case at hand, Motorola required clauses that prohibited such challenges by Apple, even after Apple had agreed to be bound by a third party determination of the FRAND terms. The Commission's preliminary view is that it is in the public interest that licensees should be able to challenge the validity, essentiality or infringement of SEPs."

Specifically, Apple was a willing licensee, and Apple has the right to challenge the validity, essentiality, or infringement of the SEP without threat of injunctive relief.

 

[Oletros]

The bulk of the preliminary ruling is not specific to Apple, and I have bolded those passages.

Specifically, Apple was a willing licensee, and Apple has the right to challenge the validity, essentiality, or infringement of the SEP without threat of injunctive relief.

Thanks for proving my point. Can you point where the hell I have said that Apple is not a willing licensee or where I have said that you can ask an injunction against a willing licensee?

Can you point how the text you have quoted contradicts anything I have said?

 

[samcraig]

Some of this comes down to defining "willing."

IE - If Apple (an example only) tries to negotiate in bad faith (IE - they want something ridiculous - whether factual or perceived) in exchange for the patents - then are they REALLY willing? And if Google doesn't concede to Apple's terms - are they unwilling?

Case in point and bad analogy warning: I have a computer I want to sell online that is literally brand new. Got it as a gift - never used. Retails for 1K. I state my price is $750. Realistically I might even go down to 600 if really pressed. I get someone who wants to buy it - they offer me 200. We go back and forth and they won't go higher than 400.

Yes - that party was willing. Technically. But I wouldn't say they were willing in good faith based on what we both know is the value of the product.

I know there are "holes" in the analogy - but the point is - when we read that one party was willing - we don't necessarily know exactly what terms and/or how many negotiations took place before talks broke down.

 

[TMay]

Thanks for proving my point. Can you point where the hell I have said that Apple is not a willing licensee or where I have said that you can ask an injunction against a willing licensee?

Can you point how the text you have quoted contradicts anything I have said?

Noting that this is much more than an EC response to the specifics of the Apple/Motorola instance, which is what I believe that I read your position to be.

I see this as EC stating its position that any willing licensee will not be subject to injunctive relief.

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Some of this comes down to defining "willing."

IE - If Apple (an example only) tries to negotiate in bad faith (IE - they want something ridiculous - whether factual or perceived) in exchange for the patents - then are they REALLY willing? And if Google doesn't concede to Apple's terms - are they unwilling?

Case in point and bad analogy warning: I have a computer I want to sell online that is literally brand new. Got it as a gift - never used. Retails for 1K. I state my price is $750. Realistically I might even go down to 600 if really pressed. I get someone who wants to buy it - they offer me 200. We go back and forth and they won't go higher than 400.

Yes - that party was willing. Technically. But I wouldn't say they were willing in good faith based on what we both know is the value of the product.

I know there are "holes" in the analogy - but the point is - when we read that one party was willing - we don't necessarily know exactly what terms and/or how many negotiations took place before talks broke down.

Merely that the court will intervene and set rates if both a negotiated settlement and arbitration fail, but no injunctive relief will be allowed against a willing licensee.

Of course, the definition of "unwilling" is fuzzy, but the court noted:

"By contrast, a potential licensee which remains passive and unresponsive to a request to enter into licensing negotiations or is found to employ clear delaying tactics cannot be generally considered as 'willing'.