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What's interesting is that he appears to recognise that he can't create a contract between two c | 98 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
FOSS Patents is right on this case
Authored by: Anonymous on Thursday, October 11 2012 @ 02:23 PM EDT
I think FOSS Patents is analyzing this litigation correctly and Motorola is
going
to lose, even on appeal.

http://www.fosspatents.com/2012/10/microsoft-tells-german-court-it-
will.html

QUOTE:
Motorola's most powerful adversary in this isn't actually Microsoft. It's
common sense. Judge Robart and the Ninth Circuit agree that there must be a
way to enforce a FRAND licensing commitment, but if a standard-essential
patent holder can enforce injunctions before he has to honor his FRAND
promise, the FRAND pledge is meaningless because the threat of an
injunction, or the actual enforcement of one, would force the implementer of
a standard to agree to non-FRAND terms. It's as simple as that -- and it's
absolutely consistent with Judge Posner's take on FRAND. Today's ruling by
Judge Robart addresses important issues that weren't before Judge Posner
(Judge Posner's case was an infringement case while Judge Robart's case is a
contract case). The combination of the two decisions is dynamite. Not only do
both decisions address different aspects of FRAND disputes but the two
judges also have very distinct styles -- and in their unique ways they arrive at

complementary and consistent conclusions.

[ Reply to This | # ]

Corrections thread -- Summary in title may be nice . . . thnx -> thanks
Authored by: nsomos on Thursday, October 11 2012 @ 02:33 PM EDT

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Thursday, October 11 2012 @ 02:51 PM EDT
CAFC rules for Samsung.


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

newspicks thread
Authored by: designerfx on Thursday, October 11 2012 @ 02:57 PM EDT
newspicks discussion here

[ Reply to This | # ]

Why would anyone take a license?
Authored by: rsteinmetz70112 on Thursday, October 11 2012 @ 03:10 PM EDT
It seems that if you cannot get an injunction to stop someone practicing your
patents they then have little incentive to take a license. They can simply wait
to be sued and may many years down the road have to pay some money.

We see here that Microsoft has not taken a license and apparently failed to
negotiate in good faith. No court can force someone to negotiate in good faith
before going to court. Even if they did there may be no way to overcome
legitimate differences of opinion. Eventually a case like that would end up in
court. However as I understand the facts here Microsoft never even made a
counter offer, so there is no record of negotiation to judge whether Microsoft
was acting in good faith or not.

I'm also a little puzzled by the judges statement regarding continuing
negotiation and settlement talks between the parties, he says:

"Motorola represents in its brief that the parties continue to negotiate
with respect to a RAND license. The court finds that a return to the negotiation
table, without any adjudication as to what in fact constitutes a RAND royalty
rate, will accomplish nothing more than delay."

If they reach an agreement isn't that in everyone's best interest? Many courts
require settlement conferences or mediation prior to trial for just that
purpose.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Thursday, October 11 2012 @ 04:16 PM EDT
Per usual.

See details in the link above (Comes v. MS).

Very apropos thread for this article, don't you think?

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

Good Faith Standard
Authored by: Anonymous on Thursday, October 11 2012 @ 08:31 PM EDT
"With respect to Microsoft’s motion for summary judgment, the court
determined that although Motorola’s agreements with the ITU and IEEE required
initial offers for its standard essential patents to be made in good
faith"

Apparently it is the "law of the case." I will leave it to somebody
else to find out where this standard was introduced.

But given the recent Apple/Samsung ruling, can I get an "abuse of
discretion", lol

[ Reply to This | # ]

Solving the (F)RAND Mess
Authored by: calris74 on Thursday, October 11 2012 @ 08:44 PM EDT
Of course, getting rid of software patents and/or drafting
standards free of patent encumbrance would help, but here's
another approach...

What if the standards setting organisation was made
responsible for all licensing agreements. So if
Samsung/Apple/Microsoft/Google et. al. take part in the
standards setting process and have patents related to the
standards, they would be prevented from taking direct action
on patent infringement. Rather, a user of the standard would
apply to the standards setting body for a license and then
the standards setting organisation would pay proportions of
the license revenue to each patent holder.

[ Reply to This | # ]

I disagree about the toxic bit...
Authored by: Anonymous on Thursday, October 11 2012 @ 09:52 PM EDT
I respectfully disagree with PJ's comment that all these smartphone patent cases are toxic to the public's interest.

I think these cases are excellent for the public interest, and I hope they continue to file more of them and I hope they are extremely wasteful for the companies involved, and a big drain on the resources of the courts.

The system is hopelessly broken, and anything that will make governments and their large corporate sponsors take notice and start trying to fix the giant mess that is the patent system, can only be a good thing!

In addition, they are enriching entire armies of lawyers, and more importantly, providing lots of entertainment for us little guys.

[ Reply to This | # ]

This is going to be a problem for standards setting organizations
Authored by: Anonymous on Thursday, October 11 2012 @ 10:51 PM EDT

I'm really surprised that no one filed an Amicus on this. If Microsoft gets
away with this, it blows every standards setting organization out of the
water.

It needn't be one of the organizations involved in setting the standards
Microsoft and Motorola are fighting over. Any organization that uses RAND
or FRAND has an interest in this case.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Neither Microsoft nor Motorola are members of the IEEE
Authored by: Ian Al on Friday, October 12 2012 @ 07:04 AM EDT
From the IEEE website:
About IEEE

IEEE is the world’s largest professional association dedicated to advancing technological innovation and excellence for the benefit of humanity. IEEE and its members inspire a global community through IEEE's highly cited publications, conferences, technology standards, and professional and educational activities.

IEEE, pronounced "Eye-triple-E", stands for the Institute of Electrical and Electronics Engineers. The association is chartered under this name and it is the full legal name. To learn more about association's name, please read the History of IEEE.
and, Mission statement IEEE's core purpose is to foster technological innovation and excellence for the benefit of humanity.
Getting involved in IEEE standards provides you with opportunities to network with industry peers and broaden your understanding of your industry and technology, as well as gain familiarity with the content of standards in which you are involved—facilitating early compliance and anticipating market requirements.
and,
About the program

The IEEE-SA Industry Connections (IC) program helps incubate new standards and related services by helping like-minded organizations come together in a quick and cost-effective manner to hone and refine their thinking on rapidly changing technologies, and determine appropriate next steps. This program offers an efficient, economical, safe harbor environment for building consensus and producing shared results.

Industry Connections empowers groups with a customizable menu of IEEE and IEEE-SA resources to produce "fast-track" materials, such as, proposals for standards, white papers, peer-reviewed specifications, guides and position papers. Results may also include online databases, data feeds, video services and other specialized tools.
and,
Industry Connections activities often occur in the earliest stages of standards development, at a time when additional information and insight is required. Activities are entity based and are normally initiated when a group of corporations recognizes a need for collaboration and consensus within a technical area, but before they fully understand what form that collaboration should take.

The creation of an Industry Connections group begins when a group of interested companies submits an Industry Connections Activity Initiation Document (ICAID)(.doc). Industry Connections activities are authorized upon approval of the ICAID by the IEEE-SA Board of Governors (BOG), where oversight resides until the group is dissolved. For the first year, the IEEE-SA provides a basic level of Support Services at no charge to participants. Following the first year, IEEE-SA Advanced Corporate Membership is required for continued participation.

Industry Connections groups typically focus on collaborative work in a technical area and transition into something more permanent (or dissolve) within a few years of initiation. Possible transition paths for an Industry Connections group include:

  • Dissolving after completing its work
  • Remaining in the IEEE-SA as a new sponsor for the development of standards
  • Being absorbed into an existing IEEE Society or Council
  • Becoming a new IEEE Society or Council
  • Becoming a new IEEE-ISTO Industry Program
  • The members of the IEEE are professional engineers and the IEEE is a not-for-profit organisation. No company can be a member of the IEEE.

    As a not-for-profit, 'for-the-benefit-of-humanity' organisation, the IEEE cannot create commercial contract relations between for-profit companies. A Letter of Assurance to a not-for-profit organisation cannot be an open-ended, legally binding contract with a for-profit third party. A for-profit company may officially nominate professional engineers to represent their technology views by joining a standards group, but the company has no legal control over the workings of the group.

    A standards group is created 'when a group of corporations recognizes a need for collaboration and consensus within a technical area'. The groups' stated objectives do not include the setting of legal or commercial relationships.

    The IEEE standards are used world-wide by governments and companies for procurement contracts. However, they are not a United Nations specialized agency for the promulgation of standards. Governments tend towards using standards set by the standards agencies of the United Nations. These can often be based on earlier standards set by national bodies like the IEEE.

    The ITU
    (International Telecommunication Union) is the United Nations specialized agency for information and communication technologies – ICTs.
    It is officially recognised by governments as the international standards setting organisation for information and communications. As a not-for-profit, international, non-government organisation it can no more determine the contractual relationships within individual government legal jurisdictions than can the IEEE. The representatives on the standards groups are both from private companies and official government standards groups.
    An organization based on public-private partnership since its inception, ITU currently has a membership of 193 countries and over 700 private-sector entities and academic institutions. ITU is headquartered in Geneva, Switzerland, and has twelve regional and area offices around the world.
    Looking at this courts prior rulings:
    In a February 27, 2012 order, the court ruled that Motorola’s Letters of Assurance to the IEEE and Motorola’s declarations to the ITU create enforceable contracts between Motorola and the respective standard setting organization to license its essential patents on RAND terms.

    Additionally, the court found that as a member of the IEEE and the ITU and a prospective user of both the H.264 Standard and the 802.11 Standard, Microsoft is a third-party beneficiary of the contract.
    In summary, the judge is wrong to conclude that a declaration to an agency of the United Nations based in Geneva, Switzerland forms a binding contract between two US companies.

    The judge is also wrong to claim that Microsoft and Motorola are members of the IEEE.

    Further, the judge is wrong to conclude that a Letter of Assurance to a US non-profit organisation for professional engineers for the benefit of humanity creates a legally binding contract between US for-profit organisations.

    br

    ---
    Regards
    Ian Al
    Software Patents: It's the disclosed functions in the patent, stupid!

    [ Reply to This | # ]

    Judge Robart Accepts German Jurisdiction
    Authored by: Anonymous on Friday, October 12 2012 @ 02:27 PM EDT
    I haven't seen the "Orange Book" referred in previous documents.
    It's the German procedural manual which allows, after the parties
    fail to reach a negotiated price, for the court to set the price.
    I'm sure Judge Robart didn't consciously adopt that procedure,
    but there's no telling where commonsense will strike...

    [ Reply to This | # ]

    Judges are not supposed to create, just follow it and make sure others do.
    Authored by: Anonymous on Friday, October 12 2012 @ 03:10 PM EDT
    "I just don't see how that can stand up on appeal, unless there are cases I
    haven't read yet. The biggie is that the judge has stepped outside of FRAND
    procedure, as I read it, and come up with something all his own, as far as I can
    tell. That doesn't usually work out in the law over the long term. Judges are
    not supposed to create law, just follow it and make sure others do. That's not
    what I'm seeing in this picture. "

    And yet you seem happy as a claim when Judges create law in the area of
    patentable subject matter. In that area, this is the law:

    35 U.S.C. § 101 35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine,
    manufacture, or composition of matter, or any new and useful improvement
    thereof, may obtain a patent therefor, subject to the conditions and
    requirements of this title.

    The law says noting of exceptions for "natural laws", algorithms, math
    or mental steps. Those were all created by Judges reading things into 35 U.S.C.
    § 101 things that are simply not there.

    Judges from past postings, you are perfectly happy with those Judicially created
    laws.

    Why the concern here?

    [ Reply to This | # ]

    'He, with the jury, will negotiate for them'
    Authored by: Ian Al on Saturday, October 13 2012 @ 03:52 AM EDT
    Oh! That has been going around in my mind for a while.

    Take a look around you and try and find anything that is not made to patent
    essential standards, both national and international. The electrical plugs and
    sockets, the faucets in the kitchen and bathroom, your broadband equipment and
    that of the service providers, the telephone, the television, the computer, the
    gas supply, gasoline stations, mobile masts, roofs all use some patent essential
    standards, although some patents will have expired.

    If the judge gets to establish that the courts are the final arbiters of what we
    must all pay to use the patent essential standards in the US, what will be the
    attitude of the national and international standards organisations to licence
    fees for the use of such patents in the US?

    Will they say FRAND anywhere else, but not in the US? If patent owners of such
    patent know that they will have to go to court to establish the patent fees,
    will they agree to FRAND declarations or a Letter of Assurance, at all?

    At this point, I would remind you that, according to the U.S. Patent Act,
    "whoever without authority makes, uses, offers to sell, or sells any
    patented invention, within the United States, or imports into the United States
    any patented invention during the term of the patent therefor, infringes the
    patent."

    So, a tourist visiting the US with an mp3 player must have licences to use any
    of the standards essential US patents used in the player because they are
    importing it and possibly using it.

    If the device is licensed to use the Fraunhofer mp3 patent in Europe, that does
    not cover the mp3 patent in the US. Is the hapless tourist to be dragged before
    a judge and jury to establish what his US patent tariff for the mp3 player is to
    be? What about his use of the aeroplane in which he landed in the US. Is every
    US patent used in the plane licensed?

    I know what you are thinking. All governments ignore the law when it suits them.
    They will not stop tourism by enforcing their nationals' patent rights. At what
    point do they stop ignoring the letter of the law if this judge gets his way?

    ---
    Regards
    Ian Al
    Software Patents: It's the disclosed functions in the patent, stupid!

    [ Reply to This | # ]

    Of course it's still possible that he will set a rate higher than moto are asking for
    Authored by: Anonymous on Saturday, October 13 2012 @ 08:10 AM EDT
    Just because he's decided that moto must provide a license
    rather than injunction, doesn't mean he agrees with MS
    approach of refusing to negotiate. If he decades that MS
    have not acted in good faith (there seems ample evidence of
    this), he might even resolve the
    situation with a 2.x% frand rate set (as a random example,
    or even a higher rate than moto originally requested.)

    That would send a message that negotiations are better than
    court cases whilst still enforcing his opinion that
    injunctions are not good on frand patents.

    I'm not saying it's likely, but possible, and maybe even
    consistent unless I'm missing something.

    Stevos
    Ianal

    [ Reply to This | # ]

    What's interesting is that he appears to recognise that he can't create a contract between two c
    Authored by: Anonymous on Saturday, October 13 2012 @ 08:34 AM EDT
    But he seems to be of the opinion he CAN set the terms for
    such a contract, and CAN enforce them to agree to them.

    This seems like rather peculiar chicanery.

    "I can't do something, but I can define exactly what it is,
    and compel others to do it."

    Very odd.

    [ Reply to This | # ]

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