There's a big difference between "I won't pay unless it's $1 or
less!" and "I'll pay the rate set by the court at the end of procedures, but if
the rate is set to $1 or less, I'll stop contesting it
You're right. One is an attempt at coercion. If Apple
were at all interested in paying what the court set as a FRAND rate they would
not have bothered to say such a thing. Good grief! They were the party that
brought this action. You'd think they'd have the guts to stick to their
argument without welching at the last minute. I'd say that with most companies
that are potentially going to lose $100m+ in royalties you could expect an
appeal anyway. Apple didn't have to express their refusal to be obligated to an
order of the court.
Apple to Judge: Please determine FRAND but we refuse to
pay if we think it's too high.
Doesn't sound like that is Fair or Reasonable
with respect to both parties. Doesn't sound Non-Discriminatory if other parties
are paying more.
It's like PJ's claim that Apple complaining
that Samsung's attempt to *add* more testimony 17 hours before the hearing (see
2 articles ago) was *actually* Apple complaining that Samsung was trying to fix
If you don't ask you definately don't get. If you ask,
there's a possibility... even if it's slim.
If there is (what you think to
be) compelling evidence which had the possibility of exhonerating your client
which you discovered just before a trial would you ignore it or would you at
least make an attempt to provide the court with that evidence before the trial?
Or would you do nothing and just sit there, embarressed at your mistake of not
bringing it up earlier?
Procedure is important. We do actually get that.
Our programs wouldn't work if we didn't understand that.
Quite funny seeing
Apple complain about Samsung circumventing page limits though.
amusing becuase it's basically what you did. You submitted opinion with no
evidence. You then provided a case with no explanation expecting the hundreds
of people to look things up so that they could understand your point. What a
collective waste of time that would have been if we'd all done that. Instead
you could have made your point and avoided a lot of frustration. Then you talk
about "Nimmer - you know, treatise". We don't know... we're not lawyers. We
are kinda like children - some are older and understand more - and often need
pointers (eg links) and reasoning. You've got to try to explain things to us
like we are children... little words that don't scare us or big words with
explanations. It's what PJ does wonderfully.
You said at one point that
Samsung's counterclaims were actually, legally offensive to counter someone
else's point that Samsung was using their FRAND patents defensively. I've heard
that the best defence is a good offence. Samsung are using their FRAND patents
defensively in their counterclaims whether you (or the legal system) define a
counterclaim as being offensive or not. They brought the counterclaims because
they had to do something to try to reduce Apple's winnings just in case Apple
were successful. Pedantism like that is what annoys people about some lawyers
who post on this site.
So, back to Posner since you agree with what he says,
would you agree that if
Apple refuse to negotiate and
refuse to pay
a FRAND royalty and
a court isn't the right venue for determining a FRAND
then it is only reasonable that non-monetary sanctions, such as an
injunction, should be made against Apple?
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