Not sure what their justification is for that statement - seems very
unlikely to stick.
I'd contend that Microsoft have given up the
right to negotiate from the initial offer for all past infringements and should
also be paying triple damages for willful infringement. I'd only let them
negotiate for future royalties.
If you know there's rules before playing in
a league (let's say for American Football) you make sure you read them and
adhere to them.
1) Microsoft knew that there were rules (ie SEPs) before
playing a game (ie entering the markets and selling their products).
2) They
should have read the rules and adhered to them by informing the other team and
ref and league officials before starting the game that they were fielding an
ineligible player (begun negotiations as soon as they started selling, if not
before) rather than waiting for the other players (Motorola, etc) to challenge
them over breaking the rules after the game.
3) Motorola complain to the
league officials (the German court) which then says that Microsoft should have
it's ineligible player excluded from the league for a short while so that they
have time to re-read the rules again.
4) Microsoft then went to the sports
governing body complaining that the the league rules are too strict.
The
followup to this should, in my mind, be:
5) Microsoft lose all their points
from any games played with the ineligible player (lose any negotiating of the
initial offer) and have their ineligible player excluded from the league until
he is made eligible by paying a fine (damages set at the initial offer). Pay a
further fine because Microsoft were aware that they were fielding an ineligible
player (triple damages for willful infringement). Suffer a further fine for
wasting the governing body's time.
Hope that makes it clear for ya.
j
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