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| Authored by: Anonymous on Monday, March 18 2013 @ 12:47 PM EDT |
Perhaps the flaw in your response is that there are not an infinite number of
cell phone buyers.
Each time Apple sells a phone this precludes Motorola, or an other licensed
maker, from that sale. There IS an opportunity cost. The playing field is not
infinite.[ Reply to This | Parent | # ]
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| Authored by: kuroshima on Monday, March 18 2013 @ 01:07 PM EDT |
While I partly agree with you, in that "intellectual
property" is an oximoron (it's not property, and most of it
- see most patents used by trolls - isn't even terribly
intelectal), there must be a way to distinguish between "Oh,
I didn't realize there was a patent on that, let's negotiate
a reasonable fee" and "No, I'm not paying, go to the courts
if you want to see a penny, and that will happen in many
years and after you bankrupt yourself in legal fees".
I would rather have all patents declared null and void, or
at least all software and math patents (video compression,
encryption,...) but until that happens, the Fair, Reasonable
and Non-Discriminatory is to have the same rules apply to
everyone.[ Reply to This | Parent | # ]
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| Authored by: tknarr on Monday, March 18 2013 @ 02:15 PM EDT |
The thing is, if this is about the FRAND commitment itself then there's
another factor: Apple's breach of the terms. Motorola committed to
negotiating FRAND licenses, true, but if Apple wants to take advantage of that
then Apple commits to negotiating a license. Apple failed to even start to
negotiate one. So if Apple isn't willing to work under the terms of the FRAND
commitment, why should Motorola be forced to abide by it anymore? In my book,
when Apple refused to even enter into negotiations that ended the whole question
of the FRAND commitment right there, Apple rejected it, and now it's back to the
standard ways of enforcing a patent-holder's rights. And since Apple rejected
the FRAND commitment, they can't turn around and now demand to be covered by
it. [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Monday, March 18 2013 @ 04:17 PM EDT |
The house doesn't exist until Apple moves into
it.
It may be better to consider the house here as really an
apartment block, condo building or even a hotel/motel than a
standard alone
house. The critical flaw in your argument is
that the house already
existed prior to Apple moving
in. That is exactly why these are called standard
essential
patents otherwise you would not be able to fully
enter into
the house/apartment block without access to all
SEPs
involved.
What would prevent
companies holding standards
essential patents from refusing
to license (even if they're nominally FRAND) if
they have
the right to exclude? What would prevent them from
manufacturing
business disputes with potential competetors
and using that are grounds to
exercise such a right (if such
pretext were even
necessary?)
Nothing and that is whole point about patents.
Patents are a limited time monopoly granted by your
Government! So, yes,
companies exclude and block competitors
as those are the monopoly rights given
to them
by the Government. It also results in FRAND terms for those
SEPs so
that the companies can get
access to each other patent portfolios or money in
exchange.
That is, access rights to that house and maybe other
houses as well.[ Reply to This | Parent | # ]
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| Authored by: PJ on Monday, March 18 2013 @ 04:18 PM EDT |
You can't refuse to license a FRAND patent, so
you are worrying about something that can't happen.
In this case, Motorola ended up for sale while
Apple was refusing to pay. If enough potential
licensees do what Apple did, companies can go
out of business. That's the problem, that
delay can make a significant difference. It's
a fiction that there's no harm done since a
company can still license to others.
But the real issue, under the waves, is that lots
of times, companies only pay if there is the threat of
an injunction. Otherwise, they just don't or they
pay a lot less than true value. So if
you take away injunctive relief, you've in effect
devalued the patent below its actual worth, and
so Motorola does lose money if it enters into a
license rather than endure the pain of litigation,
which is what would mostly happen if the value is
now so low, it's not worth litigating. And that
changes the battlefield of the smartphone wars,
because Apple and Microsoft have few if any
FRAND patents, but they are patenting anything
that moves (or buying up patents, like from
Novell, etc.) and firms selling Android, who
have a lot of FRAND patents but not as many
utility patents that are not FRAND, end up
without the ability to cross license or do
real defense against this incredible patent
assault from those two companies sincerely
trying to destroy Android.
Destroy, not pay less. That is the goal. Jobs
said so. So devaluing FRAND patents is to
make Android defenseless.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Tuesday, March 19 2013 @ 08:01 AM EDT |
A patent holder is entitled to a legal monopoly over her
invention, and “the heart of the patentee’s legal monopoly is
the right to invoke the State’s power to prevent others from
utilizing [her] discovery without consent.” Zenith Radio
Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 135 (1969)[ Reply to This | Parent | # ]
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| Authored by: ukjaybrat on Wednesday, March 20 2013 @ 09:47 AM EDT |
without getting too detailed... let's approach some of your
fallacies one point
at a time shall we:
House example is flawed
That's
why it's called an analogy and not a metaphor... you
are nitpicking the analogy
in an attempt to argue the point.
the point is valid. Apple is freeloading on
Motorola
technology and is refusing to pay. The Judge is trying to
say Moto
can not get an injunction (which is the ONLY RELIEF
Moto can get for someone
refusing to pay for their
patents... this is not hard to
understand)
Money will completely make Motorola whole in this
case.
then pay up and quit wasting everyone's time... that's the
point.
And (as argued in Samsung v. Apple) you generally don't
grant injunctions in cases where money will make the harmed
party
whole."
Yes, but in order for money to make them whole, Apple has
to
Pay and they aren't paying... it's been SIX YEARS !!!!! they
aren't paying.
The threat of an injunction is the only
incentive Apple has to agreeing to any
license terms other
than free.
What would prevent
companies
holding standards essential patents from refusing
to license (even if they're
nominally FRAND) if they have
the right to exclude? What would prevent them
from
manufacturing business disputes with potential competetors
and using that
are grounds to exercise such a right (if such
pretext were even
necessary?)
... the FRAND contract, Moto can't just say, "no i
don't
like you im not licensing to you" ... you are imagining this
hypothetical world where Moto has all the muscle and can get
away with
murder. Right now we are in a world where Apple can use
Moto tech for SIX
years and haven't paid a penny. How is
the hypothetical possibility that you
suggest any better
than the factual reality? In your hypothetical possibliity,
you ignore the fact that Moto is still bound by the FRAND
agreement that says
they must negotiate licensing terms with
anyone that wishes to use the patents.
They can't just
selectively exclude whoever they want.---
IANAL [ Reply to This | Parent | # ]
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