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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Standards Essential and FRAND

Authored by: Anonymous on Monday, October 22 2012 @ 09:34 PM EDT

Contractually this all seems a little vague.

"Licence to all comers" and "Negotiate" are not necessarily
mutually inclusive terms.

Apple (and M$) seem to have taken that as an automatic licence, but an automatic
licence would not require negotiation, and would (to a reasonable person) have a
prescribed rate. (or table of rates)

Seems to me that a court should apply a "reasonableness" test to the
negotiation in good faith on the part of the patent holder.

This should be specifically easy to do in the case of a late market entrant like
Apple, as there should be plenty of existing deals to guide the courts as to
whether Samsung is trying to gouge Apple.

Furthermore it appears that Apple et al are being rewarded for not negotiating
in good faith, and I don't see why Samsung should be obligated to licence
anything without negotiation.

[ Reply to This | Parent | # ]

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