Apple already pays Qualcomm. Why does Apple have to pay twice?
Obviously they should not have to, but there's a couple of details that most people aren't aware of:
1) Qualcomm does not sublicense Moto IP to its users. Instead, Motorola has an agreement to not sue Qualcomm customers... EXCEPT in the so-called
War Clause, which states that if a customer sues Motorola, all bets are off. The legality of this is still in question, I think, but if it is legal, Apple is no longer protected.
2) The ITC noted that Apple's claim of protection in the US due to patent exhaustion, ONLY EXISTS IF you buy the parts in the USA. However, most of Apple's purchases are made outside in order to avoid paying US taxes. In other words, if
Apple doesn't pay US taxes on a part, they do not earn US specific protections.
To the EUC, Apple was willing and the injunction was thrown out. It was up to Motorola to prove that their SEPs rates were under FRAND terms. It's now up to the German courts to decide the rate.
Yep, and German courts favor the license holders. They're the ones who said that injunctions were always okay even with SEPs.
Basically, what we have here is a typical power struggle between new EU officials, and old national courts. It'll be interesting to see what happens.
Just because Motorola wasn't fined doesn't mean they weren't found guilty abusing their SEPs.
It wasn't a court, so there's no guilt involved. Moreover, the idea that injunctions is abusive, was not clearly set in the law. Therefore nobody broke any existing laws. Just opinions.
As the EUC noted, "T
he Commission decided not to impose a fine on Motorola in view of the fact that there is no case-law by the European Union Courts dealing with the legality under Article 102 TFEU of SEP-based injunctions and that national courts have so far reached diverging conclusions on this question."
The same goes for the US. In both situations, the prohibition against asking for injunctions was a NEW thing, taking place AFTER the requests were filed. Obviously if it was illegal, the filing could never have taken place. It's retroactive enforcement. It's like getting a ticket when the speed limit changed a week
after you drove through. And it likely would not have come up at all if Apple wasn't involved.
All that said, I personally agree that injunctions should not be allowed right away, but only after a time limit has passed and a licensee still refuses to pay an arbitrated rate.
