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No Legal Advice

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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Giving you the benefit of doubt - a few points | 264 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Giving you the benefit of doubt - a few points
Authored by: Anonymous on Thursday, December 13 2012 @ 11:27 AM EST
Since that was a reasonable response, I will violate my vow
(big surprise, I know!) and respond with general
observations.

The first is that it can be frustrating when someone is
talking to people who are not used to dealing with the same
issues. The most common issue with client/lawyer
communications is that clients have a story, while the
lawyer needs to hear the story and understand what the
issues are. That doesn't make either side right or wrong.
But (to use an example) a client might be interested in
telling the story of how their First Amendment rights were
abridged, while the attorney is just trying to find out if
there was state action.

So it is here. People thrown in all sorts of things- what
about software patents? What about rounded rectangles? What
about counterclaims? Well, this is interesting. But not
really germane. IP law is a minefield, starting with the
fact that IP law refers to (inter alia) trademarks/trade
dress, copyrights, and patents. Different standards apply to
different causes of action within those different areas. So
people will often conflate different IP claims and different
standards.

Then a further issue is normative vs. descriptive. A good
example of that is marijuana laws. As a normative matter, I
might say that marijuana should be legal. As a descriptive
matter, marijuana is illegal in my jurisdiction. As applied
to this issue, I might say that normatively, there are
severe problems with software patents (although I am
conflicted over the best ways to solve them, and I am not
sure that complete abolition is the best way to go), but
descriptively, the law is what it is right now.

So that's the basic problem here- law is complicated, and in
order to understand it, you have to start with a good faith
effort to get behind the complex issues. You start with the
descriptive (what the law is), then get to the normative
(what you want the law to be).

As an example:
"The only thing I accept with regards a standard essential
patent vs a patent on 'rectangle with rounded corners' is if
the patent is required for the device to function at all -
yes, it's more valuable then a patent not required for the
device to function."

This misunderstands the entire premise of the argument;
moreover, it attempts to minimize the problem by conflating
erroneous issues. The problem (to me and Posner) with SEPs
is that the monopoly granted *by virtue of being a SEP*, as
opposed to *by virtue of being a patent*, is what a
fortiorari, should deny them monopolistic pricing power. Put
more simply (and in real property terms), they have given up
part of their bundle of rights (the right to exclude) in
exchange for their implementation being designated as a
standard (and therefore precluding a workaround).

On the other hand, the infamous rounded rectangle patent is
a design patent, not a utility patent (very different).
Almost all companies seek design patents for their products.
This is similar (but not identical, with different
standards) to trade dress.

Again, this is just gloss on really complicated issues. But
I thought I'd throw this in here since you wrote a fairly
decent post.

As for the rest, I will again say that I have been mostly
lurking here for a while, and I haven't seen many (really,
any) actual attorneys posting. I think I know why now.

[ Reply to This | Parent | # ]

Giving you the benefit of doubt - a few points
Authored by: Anonymous on Thursday, December 13 2012 @ 12:04 PM EST
"So given you're a Lawyer - possibly a practicing attorney
that argues in Court - would you say Apple's litigation
theory that they could ask a Court to set what appropriate
FRAND terms are and then tell the Court that they would not
accept the Courts terms if they were not $1 or less per
device relatively novel?"

Got one more, since this keeps popping up. As a litigator, I
find this litigation fascinating for how I believe it played
out.

MotoMobility spent most of the litigation claiming that the
Court couldn't set the rates, and they were getting
hammered. Remember, it was Apple that wanted SEP rates set
(no injunctive relief). The brilliant tactic close to trial
by QE in this case was that they, a week prior to trail,
filed a motion to have Apple commit to the court-ordered
rates. Which was brilliant!

Apple responded by saying sure, but if they were "too high"
(over a $1 per unit), they they'd contest the rates. Oops.
Pissed off the judge, who they'd been rolling with. Then, in
the alternative, they wanted a ruling (or at least an
evidentiary basis) for their SEPs to MotoMobility, but the
trial was set to begin. Reasonable, but a little late for
that.

A lot of maneuvering, but the judge rightfully didn't see
the point in a trial for something that might just be an
advisory opinion. Dismissed with prejudice! Big win for QE.

Except that it was amended, and it was dismissed without
prejudice, so everyone is back to square one. Big win for
the attorneys (fees), big win for whomever delay helps
(arguable either way), but no biggie.

However, there is nothing in the record about Apple refusing
to pay a FRAND. They either wanted the right to contest a
rate they felt wasn't FRAND, or the ability to build a
record for their SEP licenses during the trial. So it isn't
how people are construing it. It is an example of some damn
fine litigation, though.

[ Reply to This | Parent | # ]

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