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Shouting and whispering "breach of contract" | 352 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
What contract was Motorola in breach of?
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 | # ]

And what is this moaning?
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 | # ]

MPEG LA have nothing to do with administering H264 RAND declarations
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 | # ]

Reality kicks in at groklaw?
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 | # ]

"It ain't over 'til it's over" - Yogi Berra
Authored by: albert on Saturday, April 27 2013 @ 01:29 PM EDT
_. _

[ Reply to This | Parent | # ]

Reality kicks in at groklaw?
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 | # ]

Shouting and whispering "breach of contract"
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 | # ]

Something... kicks in.
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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