Isn't the whole point of FRAND licensing so that companies can't ask for exorbitant amount of fees in licensing for technologies that are required for standards defined by various standard bodies.
This reminds me of the Apple v. Motorola lawsuit in which Motorola was attempting to charge more than FRAND for a patent that is related to UMTS networks and is part of the standard. That case got dismissed with prejudice (no re-filing). Samsung seems to be doing the same thing and I wonder if this judge will throw that part out.
Actually, all of this talk of unscrupulous companies poisoning the standards-bodies wells reminds me of the Rambus case with JEDEC.
Rambus applied for a bunch of DRAM patents and then simultaneously kept mum when asked by their JEDEC co-members for a list of relevant patents (which they were required to provide as JEDEC members). JEDEC finalized their standard, everyone started making and selling products, and then Rambus' submarine patents surfaced and everyone was stuck having to pay Rambus license fees. Rambus betrayed JEDEC, their JEDEC co-members, and everyone involved in DRAM standardization and cleverly steered them all right into an iceberg.
Somehow what Motorola and Samsung are doing here is morally above this. I guess it's because they're working with Google.
This is the second time Google has supported a partner who is asking absurd percentages on FRAND patents.
Of all the IP litigation that is happening, why is Google seemingly supporting the least defensible and moral claims?
Maybe Google feels that the world is indifferent about their behavior here, but outside of strong supporters of open source code I feel like Google is losing the PR war about their integrity.
High fees are the "least" defensible? Apple just asked for and got a full-on import ban on the Galaxy Nexus...
None of this serves to justify the nonsense out there. But if you're willing to look the other way when one side plays hardball, don't be shocked when their opponent hits back. Patents are a huge mess, but this is hardly a one-sided issue about "Google", and to try to make it so is plain disingenuous.
(I suppose the counter argument is that Apple's patents were never termed FRAND, so that makes a technical difference. Might be so. But that's certainly not a "moral" difference, which seems to be the terrain you're standing on in your argument. Edit: and multiple folks posted just that. Let's just say I find that argument nonsense, "FRAND" is a technical distinction, not a moral one; try explaining it to your non-industry friends for an existence proof of that.)
> But that's certainly not a "moral" difference, which seems to be the terrain you're standing on in your argument.
No, it's a moral difference. The whole point of the FRAND designation is to protect organizations from lawsuits.
It's not all fair game and equal. Suing someone over a regular patent is like shooting someone on your property after putting up an explicit "No Trespassing" sign. You might not agree with it or think it was fair but (in some places) the owner is protected.
Suing someone over a FRAND patent is like shooting someone that comes onto your property after you put up a giant "Visitors Welcome" sign. The terms were clear & public knowledge and you went back on them. Both can still be considered awful even though more people would agree the second one is unquestionably morally wrong.
That's an absolutely ridiculous analogy, given that Apple shot first. You're point only makes sense if you're talking about unrelated cases. It's hardball. I said this elsewhere, but if you insist on taking sides here you are part of the problem.
Complete nonsense. Samsung and Motorola are betraying the TIA/ITU process that they participated in in good faith by citing these patents in the dispute. They're setting fire to the whole system that they themselves helped to build.
Why would Qualcomm et. al. want anything to do with these clowns in the next round of 4G standardization negotiations? Bearing in mind that Qualcomm has invented more of the actually useful patents in 3GPP technologies than Samsung and Motorola put together, and that Samsung and Motorola are now claiming that Qualcomm's customers effectively don't have a license to those same 3GPP technologies?
Somehow everyone agreed just how gross and mendacious this was back when Rambus stabbed everyone in JEDEC in the back. Now that Samsung and Motorola are doing it, it's ... better?
Your response here is beyond ridiculous. I think you should try to separate your emotions from the discussion.
If Apple has a "no trespassing" sign one would expect them to shoot first. That doesn't give others who have a "visitors welcome" sign the right to shoot people on their property.
The moral difference is FRAND. If these weren't I'd say that morally they could block shipment or ask such fees (there is another moral argument to be made against the patent system, but the one about FRAND is even more fundamental).
Companies know that they may have to pay the piper on patents, but there's a belief that on FRAND patents they will be very reasonable rates. Google is basically saying that you can't trust us or our partners.
It seems to me that, at worst, Google is saying you can't trust us or our partners... if you sue us. That doesn't seem at all surprising or unexpected.
Apple just asked for and got a full-on import ban on the Galaxy Nexus
Samsung has requested injunction on Apple's products in the past too. IIRC they were all denied. Motorola requested, and was briefly granted, an injunction on Apple products in Germany also.
when one side plays hardball, don't be shocked when their opponent hits back
Absolutely. More power to them. That's how the game works. Nothing will change until the rules of the game change. This brings me to the whole 'X sued Y first' issue which is kind of silly too. We know when lawsuits were filed. We have no clue what happened privately or what legal considerations were made behind closed doors. The second Nokia sued Apple the race was on industry wide to start legally testing patents. The best way to do that is to sue someone. A good offense is a good defense right? Everyone is going to end up suing and eventually licensing to everyone. That's about the only way this can play out. At some point down the road, if it hasn't already happened, you're going to have Android OEMs suing other Android OEMs too. It's kind of pointless to paint anyone as good guys or bad guys. There is no option here to be a conscientious objector. Google seems to have tried that for a while until they wised up.
Apple asked for, and the Judge agreed that Apple may indeed be irreparably harmed if an injunction on the import of the Galaxy Nexus wasn't made.
This is part of how the legal system plays out. There is nothing wrong with it, morally or otherwise.
What is wrong is to have your patents be a part of an now industry standard and no longer license the patents under FRAND when you have made a promise to do so. In the future how is a standards body supposed to accept your IP to be used as part of a standard when clearly you will renege on an agreement you made by contributing your IP to that standard.
I sure as hell wouldn't want to use any of Samsung's IP in the next gen wireless standard for fear of Samsung reneging on its agreement to license said IP under FRAND terms.
How does "standards essential" sound? The point is that there is an industry standard, and the "FRAND" patents are (probably) necessary to implement the standard. There's a substantial difference between that type of patent and one for proprietary, single-vendor tech.
The moral difference is that they're not keeping their promise to the standard bodies which would've tried to work around the patents otherwise.
Lets say a company abuses a FRAND patent related to Wifi or GPS (that it previously deemed FRAND due to which their technology was included) and demands 20% of the price, that is much worse than Slide2Unlock, since Slide2Unlock can be worked around much easier than making a new Wifi or GPS standard and shipping hundreds of millions of devices, routers, GPS chips and launching satellites again.
Don't get me wrong, I hate the stupid Slide to Unlock patent as much as you, but there is certainly a moral difference between abusing a regular patent and a FRAND patent.
With Nokia getting into losses, this is a worrying trend since they own so many FRAND patents. If all these cases set a bad precedent on FRAND patents, we'll be doubly screwed.
I don't see it that way at all, sorry. Both have the effect of eliminating valid competition from the market. Both are bad. Condemning one and not the other makes you, personally, part of the problem and not the solution, because you're fighting only on one side. Your utopia, apparently, has Apple squeezing everyone else from the market. You'll forgive me if I question the moral basis for your argument.
One way might be ethically bad, but the other puts the squeeze on everyone. What Google is involved in here is unquestionalby worse than what Apple is doing (attacking one company for a perceived copy job).
I think the issue is that you're an Apple hater/Android Fanboy and you're letting this clod your logic.
Getting kicked in the shin by a stranger is bad, as is getting shot point blank in the belly by a sawed off shotgun. Two things being bad doesn't mean one isn't worse.
No. Just no. Google (really Samsung, but whatever -- let's leave Google as the proxy here for simplicity) isn't squeezing "everyone." They're squeezing exactly one party, who happens to have already sued them. This is a defensive move in a larger battle, and viewing it as one-sided while cheering for an at-best-equally-at-fault party is just perpetuating the absurd status quo. Either you think patents suits are bad, or you are part of the problem.
Nonsense. If Samsung gets away with this it will have implicates for all agreements of this kind. Your hate for Apple is completely clogging your logic here.
What implications will it have, exactly? Let's just say what you seem to be implying: that FRAND agreements are worthless once you sue someone. Is that so bad? The patent covenants in the open source world almost always include this kind of term already.
So explain to me why the world will fall apart if everyone gets to ignore FRAND terms when used against parties that are already suing them over patent licenses? That sounds like a good thing to me.
Think about it some more. Suppose one smartphone company invests its money in R&D related to wireless communications that's fundamental to any smartphone, and as a result gets FRAND patents on those technologies. Now suppose their competitor instead invests its money in patenting things like swipe-to-unlock, creating a thicket of non-FRAND patents that allow them to attack any competing phone. The company that did the fundamental R&D that made smartphones possible loses to the company that patented a bunch of trivial things, because they have to license their patents to their competitors on the cheap, but their competitor doesn't have to license their thicket of non-FRAND patents and can sue to stop them actually selling any phones.
The way Apple is approaching FRAND patents disincentivises the kind of R&D required to make things like the iPhone possible in the first place. It didn't matter before because all the major phone manufacturers were doing some share of the R&D work, and this gave them a leg up on making their products work well - but that doesn't help if they can't actually sell those products because of Apple.
You really feel OK supposing that all Apple did for smartphones was swipe to unlock? Really?
Like there was no difference in smartphones before iPhone and after?
You are implying that all of Apples R&D was to patent swipe-to-unlock, and presto, iPhone is ready, because everything else was done by other companies?
One may hate Apple if he wants but this kind of twisting is just stupid.
All of the claims Apple is getting injunctions and import bans based on are nonsense like slide-to-unlock.
You know the patent that is bedeviling HTC? It goes back to the Power Macintosh help system (and was anticipated by Netscape Navigator 2.0b1, among other things, most likely). You may be able to convince yourself that that was important R&D that went into the iPhone. I'd say Apple went rummaging through the files to find garbage to throw against the legal system, hoping some might stick. So far, it looks like their bet has paid off.
They only promised to make the patents FRAND. The fact that it turns out there was no actual solid legal definition of FRAND is why they are in court. That was a disaster in the making anyway and left intentionaly vague so these same large companies could bully smaller ones.
As I recall, Nokia started the war by demanding either an exorbitant price for their FRAND patents from Apple or the right to cross-license Apple's UI patents.
I don't see Apple in any way morally superior here. It is as if a country came to a summit and said "I see you have a nice arms control treaty. I want to join - except I won't be including this weapon, with which I'm going to immediately attack you".
Because FRAND was a way to avoid mutually assured destruction. With Apple finding away to start an attack separately, one can hardly say "hey, they were taking the high ground here".
FRAND was a way to ensure that a standard had the ability to become popular without patents getting in the way. Cross licensing is about avoid mutually assured destruction.
The idea that Apple got an injunction for a patent dispute is hardly unique. It happens all the time.
It certainly doesn't happen "all the time". You have other examples of the import of mainstream tech gadgets being enjoined outside the current patent mess? Has it ever happened to a PC?
No-one who shoots first is a victim in a Patent war.
Apple's granted injunctions on the Galaxy Tab and Galaxy Nexus in the largest market in the world will tie up more capital and do more damage than a few percentage point royalties. It is absolutely the worst time to have sales bans on your flagship product now that the iPad is infiltrating the market at this very early stage.
I'm expecting litigation to go thermonuclear until a patent covenant is reached or all legal avenues to be exhausted.
Firstly, I have little to no experience in this field so all my arguments may mostly be gibberish. But,
1. Microsoft had initially asked for $15 per Android device sold [1]. For some devices, this was as much as 7%. I am not sure how related these cases are. It seems as if it is hard to find if the involved patents [2] are FRAND.
2. The definition of fair is relative. I see less absurdity in 2.25% than you do, probably because of my biases. Given that some of these patents are primary to connectivity (wireless patents), their licencing to competitors (especially when competitors have charged upto 7% on your phones) is going to be high. In fact, it seems that Apple and Microsoft have an upper hand here.
3. And yes, Apple has asked for a ban on sales based on "Universal interface for retrieval of information in a computer system". In other threads, it was pointed out that not only was it obvious but prior art might be available. Now, I am not commenting on the validity of the patent, I am trying to see how such a feature about search interface becomes so paramount to the success of Samsung Galaxy Nexus device? And how will it cause irreparable damage to Apple, for that is what they have claimed? I don't see it at all. To me it is the least defensible argument of all.
4. Morality - it is a strange concept. Apple going all guns blazing over Android, was immoral to me. Worse was the case when Microsoft did so to much smaller OEMs. Apple is considered to be a pioneer in technology, and they have argued that Android is nothing but a copy of their designs. What it has also done is to patent the hell out of every design - moral or not (deliberately not seeing the obviousness of some of the patents also seem immoral to me). They used this against Android and they have every legal right to do so. And while they do so, they have copied some features from Android, Notification System is often given as the only example. I don't own an iPhone so I cannot comment on this. They could copy it because it was not patented. It makes it legal but not moral according to their own standards. Having double standards, is least moral to me.
Everybody is saying that these are all FRAND patents but that is simply not true. Yes some of the patents in question are related to UTMS. However, Samsung also has other patent claims including:
-"A method for dialing a phone number in a smart phone having both PDA (Personal Digital Assistant) and mobile phone functions"[1] - The ability to click a number and call it
-"A method and device for reproducing digital audio data in a mobile station is disclosed."[2] - MP3 playback
-" The system code can process an input byte stream that is representative of contents to be displayed on the touch sensitive display and can generate a content document file representative of an internal representation of the content."[3] - Seems like view panning essentially
These are the exact same type of patents that Apple alleges infringement by Samsung.
-"A computer-implemented method for use in conjunction with a computing device with a touch screen display comprises: detecting one or more finger contacts with the touch screen display, applying one or more heuristics to the one or more finger contacts to determine a command for the device, and processing the command." [4] - the touch screen patent
-"Plug detection mechanisms can be provided for detecting when a plug of an accessory component is present within a jack of an electronic device."[5] - Headphone detection
These is by no means all of them, just an example of how both sides are basically doing the same to each other.
None of these patents are extraordinary features, they are the technologies we take for granted in modern smartphones. At best, these patent wars don't help anybody but the lawyers involved. At the worst, either of these companies could crush a startup using what are pretty ubiquitous technologies just because they have a loosely worded patent.
It's not about one side looking worse than the other, this is an all out war and these companies will do whatever is necessary to keep their hard worked on products on the market.
Perhaps Apple fans do a better job of spreading smut about who is suing who for what, so you say "Google is losing the PR war about their integrity"
But really we are all losing when it comes to innovation and competition. FRAND policies are useless. It's time to reform software and hardware patents and expand fair use.
The reason Apple hasn't used FRAND patents against Android OEMs is because it doesn't have any FRAND patents it could use. The reason it doesn't have them is because, unlike its competitors, Apple didn't fund the fundamental R&D on which modern mobile phone networks are based. Apple basically wants to be able to take the fruits of its competitors R&D that made smartphones possible for cents whilst locking those competitors out of making money from selling their own phones via patents on trivial things like slide-to-unlock and detecting phone numbers in messages.
This is untrue, Apple does have FRAND patents. The ZeroConf patents (4,661,902 and 4,689,786) are just two examples. However Apple has always made those patents available under FRAND terms. For instance this was its statement with regards to its intellectual property rights contained within one of the draft IETF networking standards:
In the event that the technology discussed in the Document becomes an IETF
standard (the "Standard") which is not materially different from the Document,
Apple agrees, upon written request from a Party to negotiate outside of IETF
to make available a non-exclusive license under reasonable and non-discriminatory
("RAND") terms and conditions under such claims of the Patents that are essential
to implement a product compliant with the Standard (a "Compliant Product").
These RAND terms and conditions may be conditional upon a reciprocal grant or
defense use.
[1]
While I am unimpressed by the current patent war, the unnecessary injunctions and Apple's suits, I believe that the abuse of FRAND patents by Motorola Mobility, Samsung and, by proxy, Google are threatening to undermine the entire basis of FRAND patents which could have severe consequences in future.
1) My point was not that Apple used FRAND patents against Android OEMs but that not all patents used by Android OEMs against Apple are FRAND patents.
2) Not sure how this is related but they probably should be
Samsung is asking for a few more percentage points on royalties, Apple has sought (and succeeded) to outright ban the import and sale of Samsung products in multiple countries. Which one of those sounds more disgraceful and anti-competitive to you?
I'm mystified why you think 1) matters in this argument. Obviously this is a very different discussion if they dropped the FRAND patent suits and only sued on non-FRAND patents.
And, since you ask, I think threatening the entire industry standard (which affects every single company that implements the standards) is much, much worse than any action between two companies. They have enough money to sort it out themselves.
Personally, I think promoting and legitimizing (from a technology company, not a non-practicing entity) the use of garbage software patents as a legal tool (and, even worse, an injunction-producing legal tool) has the potential to do far worse damage to the software industry in the long run.
I think this is all just lawyer bullshit and has nothing to do with Google's intentions or integrity. It is just how the public (via the government) has layed out the playing field. Companies who want to do business simply have to pay the lawyer's tax.
A patent owner can accept FRAND conditions and the patent becomes part of the standard. They then earn a steady stream of licensing money off the ensuing trillion dollar industry.
A patent owner can reject FRAND and their technology does not get included in the standard.
There is no third option.
You can't decide after the trillion dollar industry establishes, to renege on FRAND, because your patent was only made part of the standard -- and therefore only has value -- because of that commitment to FRAND.
There is no third option. You can't decide after the trillion dollar industry establishes, to renege on FRAND
To play devils advocate though: What you consider "fair" licensing terms might change.
Maybe Samsung finds it absolutely fair that their patents should be valued higher, when Apple has 60% profit margins selling essentially the same product they do, made by parts they make, yet they only have 20% margins themselves. That hardly seems fair, does it?
And if you disagree about that, how would you argue that it is technically unfair? There is no doubt about Apple making a shitload right now. "Fair" is really a pretty shitty legal term, open for lots of wish-washy interpretation, instead of some simple black and white.
Note that FRAND is fair, reasonable and non-discriminatory. That last part is an explicit promise to treat all users the same, irrespective of their profit margins or anything else.
I'm not arguing that. I'm just arguing that the "no third option" is overly simplistic.
Samsung can decide to change their licensing terms if they deem them no longer "fair", as you note, as long as it is done in a non-discriminatory fashion.
Edit: Oh well. That's what playing devil's advocate gets me :)
If it were simple why aren't these lawsuits being thrown out the front door? Why isn't FRAND turning out to be the watertight defence it ought to be? (serious question I would love to know the answer to, as these FRAND related lawsuits seem to keep coming up over and over again).
I've seen some hyperbolic statements on Google/Motorola/Samsung vs. Apple FRAND patent litigation recently, as if such tactics were unprecedented, and the amounts asked scandalous. I would suggest every person who is getting emotional in the Apple-Android dispute to have a look at this document on 4G FRAND patents:
It gives some context: Audiences can expect to see the same licensing challenges that first appeared in GSM (2G) and which re-appeared in UMTS (3G) starring again in LTE (4G). The plot is essentially the same: lots of essential patents and many different patent holders.
And an interesting quote from Motorola (undated, accessed in 2009):
Motorola expects that its essential patent royalty rate for LTE systems and equipment will be approximately 2.25 percent.
I'll leave to the courts to decide if this is an appopriate royalty rate for an iPhone. Note that there is a trend of declining rates: Qualcomm used to collect between 4% and 5% of the sales price for FRAND patent royalties[1]. This has since declined to about 3% [2]. As for court actions, Nokia settled with Apple in 2011[3] over FRAND patents[4] for €800m. Apple would also pay Nokia €8 per device, equivalent to 1.75% of the sales price.
That being said, I agree that injunctions should not be granted on FRAND patents. I can't imagine a case where it makes sense.
Software patents are intrinsically a mutually assured destruction scenario. The button has been pushed, it's too late to complain about the unfairness of overly brutal retaliation.
This farce should never have been started, now that it has, the entire racket needs to be ended, the ball is in the court of the legal system. I'm not holding my breath on the expectation that they'll fix everything anytime soon, so now the market suffers.
There's plenty of blame to hand out, but as in all mutually assured destruction scenarios the lion's share has to go to the guy that pushed the big red button.
I suppose it's too much to hope that this patent war keeps on escalating until the destructiveness of patents is evident to everyone, for at some point these big companies will declare a truce and turn their attention to smaller victims, at which point the patent war won't garner as much attention and it'll be back to business as usual: keeping the smaller companies from challenging the bigger ones.
This reminds me of the Apple v. Motorola lawsuit in which Motorola was attempting to charge more than FRAND for a patent that is related to UMTS networks and is part of the standard. That case got dismissed with prejudice (no re-filing). Samsung seems to be doing the same thing and I wonder if this judge will throw that part out.