decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


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.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Off Topic Thread | 128 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections Thread
Authored by: DannyB on Monday, March 18 2013 @ 09:22 AM EDT
Please post corrections here.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

Off Topic Thread
Authored by: DannyB on Monday, March 18 2013 @ 09:23 AM EDT
Post off topic comments here. Please be sure to use clickable links.

---
The price of freedom is eternal litigation.

[ Reply to This | # ]

For every complex problem...
Authored by: hardmath on Monday, March 18 2013 @ 09:55 AM EDT
For every complex problem there is an answer that is clear, simple, and wrong.

H. L. Mencken

---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

News picks
Authored by: feldegast on Monday, March 18 2013 @ 10:31 AM EDT
Please make links clickable

---
IANAL
My posts are ©2004-2013 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes transcribing
Authored by: feldegast on Monday, March 18 2013 @ 10:32 AM EDT
Thank you for your support

---
IANAL
My posts are ©2004-2013 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

House example is flawed
Authored by: Anonymous on Monday, March 18 2013 @ 11:21 AM EDT
<i>What would happen if you rented a home and failed to pay
rent for six years, ran to court instead claiming you were
willing eventually to pay but not at the exorbitant rent the
landlord was charging and asked the judge to set a price?
And you didn't pay a dime, year after year, while the court
took its time to decide if your claim that the rent was too
high played out? And meanwhile, the landlord was forbidden
to try to evict you? In what alternate universe does *that*
happen? In USPatentWorld, where crazy is normal, and
everybody loses something no matter what they do.</i>

This is the problem with analogizing Intellectual Property
to physical property.

The house doesn't exist until Apple moves into it. The fact
that Apple is occupying it has no opportunity cost to the
landlord - the fact that they're there doesn't mean they
can't rent the house to other people - each additional
potential tenant builds their own house on the magical plane
that infinitely many houses can be built on. It's NOT like
a real property dispute in very important ways.

Unless Motorola is arguing that they would have breached
their FRAND obligations and NOT have granted Apple a license
in 2007 if they'd reached a reasonable royalty, this dispute
is purely about how much money Apple should have paid/be
paying Motorola. That's it. Not that Apple is denying
someone else an opportunity, or distorting a market. Money
will completely make Motorola whole in this case.

And (as argued in Samsung v. Apple) you generally don't
grant injunctions in cases where money will make the harmed
party whole.

Motorola wants to swing the "right to exclude" hammer on a
FRAND patent as a punitive measure because Apple refuses to
make them whole financially.

That's a seriously dangerous precedent. 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?)

Don't mistake Apple being a scumbag (which is the case here)
for a grave injustice of law. The cure you argue for is IMO
far worse than the disease you're fighting.

[ Reply to This | # ]

Motorola Challenges Judge Posner's Implied "No Injunctions for FRAND" Ruling ~pj
Authored by: kuroshima on Monday, March 18 2013 @ 12:52 PM EDT
What would happen if you rented a home and failed to pay rent for six years, ran to court instead claiming you were willing eventually to pay but not at the exorbitant rent the landlord was charging and asked the judge to set a price? And you didn't pay a dime, year after year, while the court took its time to decide if your claim that the rent was too high played out? And meanwhile, the landlord was forbidden to try to evict you? In what alternate universe does *that* happen? In USPatentWorld, where crazy is normal, and everybody loses something no matter what they do.
This is hearsay from what I used to hear in the local media, but I believe that there have been cases here, where someone had his residence taken up by squatters after going on holidays, who changed the locks and all, and could not even tell the water, electricity and gas companies to cut supply, hile waiting for the trial (that would happen in 3-5 years), and obviously could not resort to other more direct ways (and no, the police/authorities could do nothing until the wheels of law turned)...

[ Reply to This | # ]

I have a few issues and questions, and story ;)
Authored by: Anonymous on Tuesday, March 19 2013 @ 01:59 AM EDT
I'm not sure if one of the California cases was included in this one but
here's the premise of that one. In story form ;)

Qualcomm: Hey Moto, you know since we're old pals and we hang out at
ETSI and participate in SEP parties and all, can I pay you for a license to
include your patents in my new cell chip, bc I need a license from you so
my chip will conform to all cell current standards.

Moto: well how much do your chips cost?

Qualcomm: $10

Moto: cool can I get $2 per chip.

Qualcomm: Whoops, I meant I sell the chip for $10, but it cost me $5 to
make. Sorry for the mix up but no way I can pay you $2 out of the $5 I earn
by actually making the chip. BTW, are you still even making chips? I guess
not bc I have more cellular SEPs than you, and you'd lose money paying
me alone, before paying all the other celluar SEP patent owners.

Moto: Hmmm

Qualcomm: Out of that $5 I earn, I also have to pay SEP license fees to
Samsung, Nokia, Ericsonn, Sony, Siemens, Alcatel, Orange, BT, etc..
Damn I miss all of those SEP parties we throw at ETSI.

Next time, I know we can't uninvited them, but can we put Interdigital and
the other patent trolls at the uncool table, bc I hate paying those guys,
they're such a buzzkill. They don't actually make anything.

Qualcomm: Hey Moto, how about I pay you $0.10 per chip. Obviously if
everyone wants $2, I won't bother making chips, it'll cost me more than my
competitors. Hmm you could charge my competitors the same, but
someone will avoid paying and dominating the market and you won't get
paid at all.

Moto: Sounds good to me.

Qualcomm: So we'll do business as it has always been done, everyone I
sell my chips to, has a 3rd part beneficiary license. (Patent exhaustion)

Moto: Of course, that's the we've always done business, since the 1990s.

Narrator comment: All was fine for a few years then evil Apple came along.

Moto: damn Qualcomm, with all that Apple money we want some because
our phone division is losing money every single quarter.

Moto: We're revoking our 3rd part beneficiary license in regards to Apple,
but not anyone else though.

Qualcomm: You can't do that, it's part of your FRAND pledge by submitting
your patent to the SEP bodies. You can't discriminate if we sell the same
chip to Samsung or Apple.

Moto: FRAND smand, we want money and we'll sue Google and Android
as a threat too.

Qualcomm: damn, you lost your mind if you're willing to sue Google and
Android, your only possible savior.

Moto: I'm going to sue Apple for 2.25% of the final sale price of every
iPhone and cellular iPad.

Qualcomm: dude, you get too drunk on money and ruin every party. Now
the government is going to regulate our industry more bc you found a new
quick rich scheme. Instead of making a good phone like Samsung and
HTC, you pick a fight with a company, exposing us all.

Qualcomm: Hey Moto, every chip we sold to Apple, you got paid for, the
rate you wanted, before you started making crap phones. Now you want
more?

Qualcomm: I'm staying out of this but at the next SEP party at ETSI, your
sitting at the uncool table, bc the courts and trade agencies are going to
give us a headache all bc of you Moto.

Well that is my first try, of explaining my point of view on one issue.

I was trying to have fun so don't be too brutal in the responses ;) I was
stream thinking.

[ Reply to This | # ]

Apple's obvious way out
Authored by: Ian Al on Tuesday, March 19 2013 @ 03:44 AM EDT
I am so glad that Motorola said that a blanket bar on injunctions over patents
that a standard organisation had included in a standard on FRAND terms would
chill international technology standards and harm consumers.

I am also glad that they said that, if the FRAND letters and declarations
constitute contracts then enforce the written contract terms.

However, Apple have an obvious free ticket out. Motorola’s ‘559 Patent is a math
function invention and the algorithm is written in software and run on the
'phone's processor. Motorola’s ‘712 and ‘898 patents are patents on the signals
passed between phone and network and are implemented by algorithms written in
software and run on the 'phone's processor.

Neither the math functions, the signals nor the software algorithms are
statutory subject matter under US law and are thus invalid. In addition, they
are method patents and cannot be infringed by a machine. Further, the methods
have no post process activity: they don't make or do anything over and above the
signalling protocols. The protocols do not add in any way to the signalled
content.

All that Apple have to do is to show that all patents for math functions,
signals or abstract ideas used to create software algorithms to be executed by a
processor are barred under U.S.C 35 §101 and its judicial exclusions and they
are home free.

There could be unintended consequences.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )