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| Authored by: Ian Al on Monday, October 01 2012 @ 02:33 AM EDT |
I am not a lawyer; not even an English lawyer, but I have personal experience of
covenants. My house was sold by the original developers under covenants that,
for instance, prohibited the erection of short-wave aerials (antennae). The
covenants continued to apply within the terms and conditions of sale for each
subsequent sale.
The covenant attached to the property and not to the
original participants in the sale contract.
I don't see a parallel in
the case of the FRAND agreement. There is no original sale contract terms and
conditions for the covenant to be associated. I think the FRAND agreement is
just that; an agreement between parties to an association. I don't think it is
binding on the parties except that failure to abide by the association terms and
conditions puts membership of the association at risk.
I found this on
the ITU website:FRAND licensing declaration
FRAND = Fair,
Reasonable and Non-Discriminatory
ETSI requesting IPR owner to give
undertaking to grant licences under fair
reasonable and non-dicriminatory
(FRAND) terms and conditions
Importance:
avoiding blocking
of standard following a refusal to license after creation
of
standard
ensuring access to standard
But: IPR owner has
the free choice to give or to refuse FRAND
licensing
declaration
inclusion of IPR in a standard requires the
explicit consent of the IPR owner
ETSI disposes of a procedure in case
of a refusal
Distinguishes between situations pre and post publication of a
standard,
between members and third parties + is taking into account the
availability of
alternative technologies
Dr. Michael Fröhlich
ITU
Workshop on “ICT Standards and Intellectual Property Rights”
ETSI Legal
Affairs Director
Geneva, 01 July 2008
World Class
Standards
FRAND licensing declaration
Terms and conditions of
the licenses to be determined bilaterally by the
parties of the agreement +
enforcement based on existing legal system
Then: subsequent
licensing negotiations were largely unproblematic
Now: increase of
cases where licensing parties have a different understanding
of the meanings of
FRAND (e.g. unreasonable licensors asking for excessive
royalties,
discriminatory licensing practice of IPR owner), resulting in an
increase of
litigation
Note that the IPR owner gives a declaration giving an
undertaking to grant a licence and that is a free choice. If the owner
does not want to give the declaration then the IPR is not encompassed by the
standard. The [contract] Terms and Conditions of the licenses are to be
determined bilaterally by the parties of the agreement, with enforcement based
on the existing legal system. That constitutes the 'negotiation' to which PJ
refers.
In summary, the ITU FRAND Declaration is not a third party
contractual agreement. There is no contract until the patent owner and the
potential licensee agree one after bilateral negotiation between the two
parties. The legal jurisdiction is that with jurisdiction over the patent
agreement. Apple are wrong in claiming that the ITU FRAND Declaration
constitutes a legal licence agreement.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Monday, October 01 2012 @ 09:49 AM EDT |
After all... MicroSoft has - to date - refused to enter negotiations to even
start to discuss the license rate.
RAS[ Reply to This | Parent | # ]
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