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| Authored by: JonCB on Wednesday, October 03 2012 @ 03:07 AM EDT |
The "negotiate" part of FRAND is necessary to hit the F and
R parts. If the license fee can't take circumstances into
account(e.g. the current economy, the value of the patent to
the item in question) then it will find it very difficult to
be both Fair and Reasonable.
You say "But if neither party is under any obligation to be
reasonable in negotiations" but both party's ARE under an
obligation to be reasonable. FRAND specifically talks about
negotiations _in good faith_. Constantly counter-offering
"1c per product" is not negotiating in good faith. But then
neither is trying to negotiate from the court rooms.
I think the system you're arguing for is effectively already
in place, at least in spirit. Even on the metaphorical eve
before the trial, Judge Alsup was looking for Oracle and
Google to settle their differences, and agreeing to a
license would
have been settling their differences almost by default. The
only difference I see is that a technical license during
negotiations would mean you might be limited on damages for
the period of the negotiations however before and after are
probably fair game.
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| Authored by: Anonymous on Wednesday, October 03 2012 @ 03:14 AM EDT |
At least by my understanding.
If you want to buy the right to use my hard work, then
reasonable is a lot of money. If I want to license your
technology for a tiny part of something I'm making, then
reasonable is very small.
It all depends on your opinion and point of view, which is
why negotiations are necessary to set the amount, and why
there can be no automatic license without payment.
I agree that it should work better than this, but it
currently doesn't, and won't unless standards bodies change
the way they work.
Trying to legislate that it does work like this is unfair to
rights holders who may never have pledged their IP under
those conditions.
Removing the right of holders to get injunctions makes sure
that potential licensees have no incentive to offer anything
or negotiate, as we are currently seeing by companies that
should know better given their own IP portfolios.
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| Authored by: Ian Al on Wednesday, October 03 2012 @ 03:48 AM EDT |
Many of the mobile communications standards that encompass patented inventions
and references to FRAND are published by the International Telecommunication
Union.
There is no contractual commitment between the patent holder and the ITU to
negotiate a patent licence with a potential standard user.
The ITU merely asks the patent holder to make a declaration of its own free will
that it is prepared to negotiate a patent licence on a FRAND basis with
potential standard users.
There is no contractual commitment to negotiate a licence for a patent. If a
company is refused a negotiated licence, then there is nothing they can do about
it unless the refusal is covered by legislation. If that company expends a lot
of development expenditure on the basis of a general declaration of the patent
holder, have they a legal right to redress?
Bear in mind that the declaration is made to everybody in the world and not
specifically to large companies based in the USA. Is the patent holder indulging
in trade restraint if he is not even informed by the developer that the
developer is going to need a patent licence?
Is the patent owner obliged to review every company in the world that is, or may
be in the future, producing products that compete with the patent owner's
products before making the international declaration?
Has the developer a legal right to a licence agreement contract? A general
declaration of preparedness to licence a patent under FRAND terms does not
constitute a contract between any two parties to make such a contract. It is not
even a proforma contract as it contains no specific contract terms and
conditions.
The rule is; before you use a patented invention, make sure you have a licence
to use the patent. If you cannot negotiate a licence, then you can look to the
law to see if that is because of illegality on the part of the patent owner.
---
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 Wednesday, October 03 2012 @ 04:05 PM EDT |
How about just change the rules... if you want your IP as part of the standard
there is no license fee. Basically you give the IP up to the standards body.
How does it even make sense to have a patent on something in a standard?[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, October 04 2012 @ 08:12 AM EDT |
Well, FRAND is complicated that usually the "inventors" tend to know
themselves and cross license their part of the invention, especially in the
mobile field.
I'd say, you cannot build a feature phone without licences from Nokia, Sony,
Samsung, Motorola, ...
Assuming that the iPhone related touch screen patents are valid (and many
probably are not, given that others have produced touch screen phones without a
pen before, hence prior art), Apple's licence might be relevant for current-time
smart phones.
The issue comes only, when an outsider like Apple (because in the mobile world
Apple is an outsider), comes, and instead of playing nicely, they just presume
because others don't pay (well they do, just via a cross license) they don't
need to license the stuff too. And from a technical point of view Apple has not
that many "real hard" patents to cross licence, hence, they've got a
problem.[ Reply to This | Parent | # ]
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