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Authored by: jesse on Saturday, April 27 2013 @ 01:55 AM EDT |
And what was that rate specified in the contract?
NONE.
That was to be determined during negotiation.[ Reply to This | Parent | # ]
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Authored by: OpenSourceFTW on Saturday, April 27 2013 @ 02:29 AM EDT |
We ain't moaning bud. We are shaking our heads at nonsensical doings. [ Reply to This | Parent | # ]
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Authored by: Ian Al on Saturday, April 27 2013 @ 04:05 AM EDT |
The ITU publishes the ITU H264 Recommendation and administers any
standard-essential patent RAND agreements that form part of the global
standard.
The MPEG LA is not a standards body. Their pools are a parasitical extortion
plan working on standards issued by real standards bodies like the ITU and the
IEEE.
If you read what the judge wrote and said in court, you will have the ITU and
IEEE relationships to standard essential patents explained, fairly well.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | Parent | # ]
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Authored by: PJ on Saturday, April 27 2013 @ 12:34 PM EDT |
That would indeed take imagination, since
Microsoft was not involved in the standardization
process. They are Johnnie Come Lately to
mobile phones, and they arrive and turn over
everything that standards bodies have been
doing for decades to suit their needs personally.
Talk about breaking a contract. It is Microsoft
who is rewriting it decades after the fact. This
judge is confused and imagines that pools and
standards bodies are the same thing. They very
much are not. Microsoft was very good at
appealing to this judge's ego, and he has
sent out a ruling that is as big as the sky,
but it alters the terms of the standards bodies'
contract midstream.[ Reply to This | Parent | # ]
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Authored by: albert on Saturday, April 27 2013 @ 01:29 PM EDT |
_. _
[ Reply to This | Parent | # ]
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Authored by: Anonymous on Saturday, April 27 2013 @ 10:15 PM EDT |
But Moto isn't getting their license at pool rates (they are having to negotiate
them just like they expected MS to do). So yes, what is good for the goose is
good for the gander, and fair is fair... MS needs to come to the table to
negotiate just like Moto did.[ Reply to This | Parent | # ]
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Authored by: Anonymous on Sunday, April 28 2013 @ 08:31 AM EDT |
Interesting difference in use of term, by the OP:
Anybody would
think this unacceptable, you had
a joint commitment to frand after all.
Whatever
negotiations there were or not were between you and
motorola, at
some point you feel you have no other
choice
but to sue Motorola
because of BREACH OF CONTRACT!
The judge happens to agree regarding of
breach of
contract will be judged later)
The first time it is used
it is affirmed as a fact but
the second time it is pointed out that the
judge
could
not decide whether there had been a breach of
contract.
So in your opinion it was not and still has not been
decided
whether there has been a breach of contract?
Sometimes, as has been
pointed out by Motorola and
others, after discovery during
negotiations the rate
becomes zero or near zero because it becomes
obvious
that the licensee is using the license in a particular
way, or
willing to enter into cross- licensing
agreements, etc..
Microsoft, as
has been agreed by all parties, is a
third
party beneficiary to
this contract and, therefore, does
inherit rights and obligations
due to the contract
(not the
case in Germany!) and its original
intent!
If a FRAND undertaking is a contract, then
there
are legally proper methods for determining what that
contract means, and
they do not include lengthy flights
of
economic theory. On the contrary,
both the Civil Law and
Common Law traditions of contract interpretation
and
enforcement fundamentally look to discern and give effect
to
the
intent of the parties (Corbin,1952, p. 538).
via International Journal of IT
Standards and Standardization
Research
It is this "intent of the parties" that seems to
have
been overlooked in the above shouting/whispering argument.
The
clear intent of the Standards bodies (there have been
various attempts to
distort this (for example in the mid
1990s as well as more recently) is to
ensure that the
'Fair'
and 'Reasonable' refer more to the
protection of
the
Donor of the Patent rather than the licensee - the
intention
was to ensure that the Standard remains attractive by
retaining financial incententive to innovative bodies.
For example, from
the ITU:
RAND/FRAND means licensor is prepared to
negotiate in
good
faith to determine licensing terms provided that
counterparty
also demonstrates good faith
“It takes two to make a license
agreement”:
- all a patent owner can do is make genuine bona fide
licensing offer
Terms and conditions of any license subject
to
RAND/FRAND result from normal commercial
negotiations
between licensor and licensee, outside the SDO
processes
RAND/FRAND
does not mandate a specific royalty level:
- what is RAND/FRAND in
one situation may not be RAND/FRAND
in another
There are important
elements of ‘consideration’
other than
royalties
i.e., pass through
rights, etc.
(Considerations for Developing or Revising PSO IPR Policies,
2008 via
ITU)
(I have recreated emphases, above -
hopefully
accurate)
It seems to me that Microsoft are not willingly
accepting
the obligations of the rights conferred upon them as
third
party
beneficiaries. Indeed, they seem to be abusing
their
requirements to enter
into negotiations at all by not
respecting any of the intent(ions)
of the original
contract.
Surely any "breach" of contract should be
judged
at
the time that the litigation was started. In that case
we
have the two letters from Motorola as the first stage in the
'negotiations' and the (subsequently pre-trial revealed)
fact
that
such offers had resulted in 'Fair' and 'Reasonable'
outcomes previously -
therefore bona fide?
The only evidence of a "good faith"
response
respecting the intent of the contract was ...? The
so-called
"breach" should be judged from this evidence only! Setting
a
price does not help with the question of breach until
the
discovery
process has occurred - which can result in
a zero
cost(!)
license! None of the arguments entered into
evidence
affect the question
of 'breach' before the trial as
they
were not in the "negotiations"
as required by the
“intent of the parties” in the contract.
The
setting of the price in this trial does not help at
all in determining any
breach of contract - even if
correct - as this needed a discovery process
and great
deal of evidence from both sides - in lieu of the
negotiations that should have happened! This seems
to me to be almost
an abuse of the legal system - even
though Microsoft (as with many
others) goes out of its
way not to contribute to the taxes that help to
pay for this
valuable and costly infrastructure? [ Reply to This | Parent | # ]
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Authored by: Anonymous on Sunday, April 28 2013 @ 01:01 PM EDT |
Good Kool-aid, eh what? [ Reply to This | Parent | # ]
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