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| Authored by: Anonymous on Thursday, October 04 2012 @ 04:49 AM EDT |
I think the idea that the courts are using here is that the FRAND
terms require the patent-holder to negotiate a license.
Why would
the patent-holder be required to negotiate a license rather than the
licensee? For standard-required patents, it is close to impossible to
notice that there is a patent-holder with rights.
Yet Apple thinks that it
is not required to notify the patent-holder of standard-required patents
when making use of them, but is asking for punitive damages for
non-standard-required patentscan sue a standard-required
patent holder for breach of contract without having entered into any contractual
obligations themselves.
Why would the patent-holder be required to
negotiate a license?[ Reply to This | Parent | # ]
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- Patent license - Authored by: tknarr on Thursday, October 04 2012 @ 11:24 AM EDT
- Patent license - Authored by: Anonymous on Thursday, October 04 2012 @ 02:10 PM EDT
- Patent license - Authored by: Anonymous on Thursday, October 04 2012 @ 02:26 PM EDT
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| Authored by: Ian Al on Thursday, October 04 2012 @ 06:16 AM EDT |
I think the idea that the courts are using here is that the FRAND
terms require the patent-holder to negotiate a license.
I don't
think so. Where did the court find the FRAND terms? How do they, as a matter of
law, require a patent-holder to negotiate a licence? In the case of
international standards relying on patented inventions, the patent-holder has to
declare their willingness to licence the patent on FRAND terms. What is the
legal effect of this declaration?
In English law (did I mention that
IANAL) a shopkeeper can put a 55" LED, 3D, flat-screen, smart television in his
window and display a package deal that includes ten pairs of active, 3D glasses
and a free, on-site, 3 Year warranty for the price of £224.99. Under the law, it
is considered an invitation to treat. The shopkeeper is not making a binding
offer and is not contractually bound to supply the package for the price
quoted.
Wikipedia says this:Invitation to treat (or
invitation to bargain in the United States) is a contract law term. It comes
from the Latin phrase invitatio ad offerendum and means "inviting an
offer". Or as Andrew Burrows writes, an invitation to treat is
"an
expression of willingness to negotiate. A person making an invitation to treat
does not intend to be bound as soon as it is accepted by the person to whom the
statement is addressed."
Contract lawyers distinguish this from a
binding offer, which can be accepted to form a contract (subject to other
conditions being met). The distinction between an offer and invitation to treat
is best understood through the categories that the courts create.
Invitations to treat include the display of goods; the advertisement
of a price or an auction; and an invitation for tenders (or competitive bids).
There may however be statutory or complementary obligations, so consumer
protection laws prohibit misleading advertising and at auctions without reserve
there is always a duty to sell to the highest bona fide
bidder.
So, does an offer to licence under undefined FRAND terms,
without a price quote, anywhere in the world, to anyone in the world, even reach
the standards of an invitation to treat? There are unlikely to be any breaches
of consumer protection laws in the US as a result of making the world-wide
declaration.
The FRAND declaration is not a contract offer because
nothing is even in the store-front with a price tag. The standard does not
contain a saleable product or the basis for a specific contract. Even if the
declaration was considered by an American court to be an Invitation to Bargain,
it is not binding on the patent-holder.
Of course, if the patent-holder
is also a foreigner... well, the Constitution and the Law only protects US
citizens. [Subject to International Treaties and Agreements to which the US
Government is a current signatory.]---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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