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| Authored by: Anonymous on Saturday, January 05 2013 @ 09:40 AM EST |
2.25% is where the negotiation start from (not up), I.e. I
licence you, you
licence me. [ Reply to This | Parent | # ]
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| Authored by: Ian Al on Saturday, January 05 2013 @ 09:45 AM EST |
More than that, the complexity of business interests on both sides
where both parties are negotiating a cross license are such that no one can
possibly know whether an opening offer is RAND or not, something the judge
himself said is the case, and Motorola says its opening offer was in good faith
and the same rate it has offered others and that others have
accepted....And as the Court has recognized, parties do not have
information when an initial offer is made to know what is and is not RAND. Dkt.
No. 335 at 23-25. That can only be determined through negotiations, which should
have occurred here. For these reasons, Motorola’s offer was not unreasonable or
a violation of its obligation of good faith and fair
dealing. ---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Saturday, January 05 2013 @ 10:03 AM EST |
As far as I can tell from the evidence I can see that seems
fairly standard.
I.e. company A says to company B "We'll license you our
patents for either 2.5% of the sale, or for a license for
your patents". Company B chooses to go with a cross-
licensing deal, and nobody ends up paying anything.
If that's morally right or not is basically a question of if
you think software should be patentable or not (as it
prevents new companies from entering the market)
The issue here is that Microsoft and Apple have (allegedly)
been refusing to license their own (non-FRAND) patents (and
suing instead), while not paying the other companies for
licenses to their patents.[ Reply to This | Parent | # ]
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| Authored by: myNym on Saturday, January 05 2013 @ 12:16 PM EST |
| . [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Saturday, January 05 2013 @ 03:31 PM EST |
There's nothing unFRAND about that. The parties are supposed to negotiate. If
you're going to make an opening offer, it better be one that you can live with,
as the other party can simply say "I accept your offer". So, you make
an opening offer on your patents, and the other party tries to negotiate it
down.
There were traditionally only a handful of companies in the mobile industry, and
they all held lots of relevant patents. They would all simply cross license to
each other and call it even. The companies which spent billions of dollars on
the R&D which makes mobile communications possible aren't operating
charities. They're businesses and they expect to get paid for their investments.
Microsoft and Apple have come into the market and have basically nothing to
offer other than "rounded corners on rectangles". They're no different
in that respect from the Chinese clone vendors, who have to license the patents
from the companies which actually invented mobile technology.
It's funny isn't it how Microsoft gets in a frenzy over people selling pirate
copies of their products, but when Microsoft does the exact same thing to other
companies, they go running to the government crying about how unfair it is when
they get told to stop. [ Reply to This | Parent | # ]
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| Authored by: OpenSourceFTW on Sunday, January 06 2013 @ 02:11 AM EST |
The correct response on Microsoft's part is to make a counteroffer.
They failed to do so, whining instead to the court that Moto is so unfair.
Try doing that at a car dealership, you'll be laughed out of court (if you get
in there at all).[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Sunday, January 06 2013 @ 05:25 AM EST |
Motorola assumes that the firms it negotiates with are not idiots.
If you really wanted to pay 2.25%, they _may_ take the money, but you'd
basically have to prove to Motorola that that was indeed a fair rate for you to
pay, before they accepted that offer.
[ Reply to This | Parent | # ]
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| Authored by: Gringo_ on Sunday, January 06 2013 @ 06:29 AM EST |
You need to read this. It is
all about you and your friends. As I have told
you
before, you should go post on Slashdot. You'll get the love
and attention
you seek there. You will get modded up there
for your love of Microsoft. [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Sunday, January 06 2013 @ 10:16 AM EST |
I go to buy a car. The salesman said $50,000.
What are my choices?
1) Accept the price.
2) Make a reasonable counter offer: $25000
3) Make an unreasonable counter offer: $0.50
4) Say no thanks, walk away and go somewhere else.
5) Whine, make noise, complain, and get nasty because
I don't want to have to pay anything.
6) Come back later and steal the car.
7) Get dirt on the salesman and use blackmail to get
a better price.
8) Threaten to sue the business for some bogus reason,
extorting them into selling me the car for an undisclosed
price.
Which choice do you think applies to M$'s actions?
Actually, #5 reminds me of the story of how Bill Gates got
IBM to use his OS on the original IBM PC. Some things
just do not change.
[ Reply to This | Parent | # ]
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| Authored by: tknarr on Sunday, January 06 2013 @ 03:26 PM EST |
It's non-discriminatory in that it's the same standard initial offer Motorola
makes to everyone who wants to license the patents in question.
As
for the fair and reasonable part, that couldn't be determined yet. As the courts
have noted, what's fair and reasonable depends in large part on what the
licensee is bringing to the table, which isn't and can't be known when the
initial offer's made. The licensee's supposed to respond with a counter-offer,
bringing up such things as what patents they're willing to cross-license as part
of the deal, limitations on field of use, licensing of only a subset of the
patents and so on. The two parties then haggle, until they either arrive at a
fair and reasonable price or it becomes apparent that there's too big a gulf
between then and they won't be able to reach a deal. In the latter case, the
licensee would then ask a third party (an arbitrator or a court) to set fair and
reasonable terms based on what came up during the negotiations.
The
problem here is that Microsoft skipped all of the negotiating part and went
straight to court without ever making a counter-offer to Motorola. To me that's
a breach of the FRAND commitment on Microsoft's part, they've failed to meet
their obligation to negotiate fair and reasonable license terms. Motorola hasn't
broken their side of the deal, because they never committed to licensing on
whatever terms a licensee wanted and they haven't refused to negotiate
(Microsoft never even began their half of negotiations).
And I suspect
the problem on Microsoft's side is that MS doesn't have much to bring to the
table except a cash payment. They don't own many patents that'd be attractive as
part of this deal. They can't restrict the field of use very much given what
they want to do. They need all the Motorola patents, so they can't offer to
license only a subset to reduce the costs. They're coming into the negotiations
in a weak position and they know it, and they're trying to use the courts and
the cost of litigation to give themselves leverage. And that's not what the
courts are for. [ Reply to This | Parent | # ]
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