Two new reports published on the web today indicate that things are looking good for Apple with regards to the standard essential patents (SEPS) claims made against them. The Cupertino company is in a patent war with most Androids vendors, with Samsung and Motorola Mobility included. While Apple is suing over non SEPs others are using their standard essential patents as a weapon in an attempt to get Apple’s products ban and extort high royalties. Mobile phone firms (Apple and Motorola was involved), regulators and others attended a meeting on Wednesday to resolve the issues around standards-essential patent licensing.
David Meyer of ZDNet writes, “In a meeting held on Wednesday under the auspices of the International Telecommunications Union (ITU), a UN agency, companies, regulators and academics took part in a patent roundtable in Geneva. No resolution came out of the meeting, but the convenors remained upbeat about future developments.”
According to the report, ITU Telecommunication Standardization Bureau chief – Malcolm Johnson said, “Today’s event has gone a long way to help clarify the positions of various stakeholders in determining the effectiveness of FRAND commitments and the impact of litigations surround standards-essential patents, after a heated debate”.
Meyer reports, “There are two key issues that remain unresolved: what ‘reasonable’ means; and whether it should be permissible for a company to use a FRAND-protected patent as a weapon for getting a ban on a rival’s product. Google’s Motorola subsidiary has tried to use standards-essential patents against Microsoft and Apple in injunction bids, and has argued that a reasonable rate for licensing those patents would be 2.25 percent of the sales price of the full product. Microsoft, Apple and Cisco have banded together in disagreement.”
In the report, Apple chief intellectual property counsel BJ Watrous argued that, “The average selling price [ASP] approach wrongly permits the patent holder to collect value unassociated with its contribution to the standard. He believe that, “Using the ASP of the end user product as the royalty base [is] discriminating against companies like Apple who sell high-value products.”
On the other hand, Motorola senior licensing counsel Ray Warren, felt that “For 20 years the [FRAND] licensing commitments made by innovators in the communications industry have been sufficient.” He continues by stating, “Past experience would indicate that [FRAND] has been effective… but that doesn’t mean there isn’t room for improvement to improve the present situation.”
In the second report, a U.S. court has denies Motorola motion for partial summary judgment and will set FRAND terms at Microsoft trial next month. The outcome here is expected to have an impact on future Apple vs Motorola cases.
Mueller of FossPatent writes, Judge Robart today denied a motion filed in mid-July with which Motorola Mobility was trying to narrow the scope of next month’s FRAND trial, hoping to keep the door open for a continued pursuit of injunctive relief. The judge wants to make sure that when his court is done with this, a standard-essential patent license agreement will be in place to take care of this for good (apart from any appeals, of course).”
According to Mueller report, “the court denies Motorola’s motion for partial summary judgment dismissing Microsoft’s claim that the court create a license agreement for Motorola’s standard essential patents. This matter will proceed to the November 13, 2012 trial under the schedule currently in place and to adjudicate issues in accord with this order.”
Mueller continues by stating that, “This judge means business. He doesn’t want more tactical gamesmanship. He wants a definitive solution for this issue. He told both parties at a hearing in the spring that he had them figured out: he basically said they are both pursuing their business interests and trying to use his court for their purposes.” According to Mueller, “He (Judge) has already determined in a previous summary judgment decision that Google’s Motorola has a contractual obligation to grant a FRAND license to Microsoft, and there’s no point in playing games with him in an effort to avoid this outcome”
This will end sure that companies like A[[le and Microsoft are not theatened with sales injunctions if there are prepared to pay royalties to Motorola Mobility on a FRAND basis.
Mueller had this to say in closing, “the course of action is clear: there will be a FRAND licensing agreement in the end, and Motorola can’t threaten with SEP-based sales bans anymore. This dispute is now only about money. That’s what all FRAND disputes should be exclusively about.”
Sources: ZDNet, FossPatent
