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This blog covers software patent news and issues with a particular focus on wireless, mobile devices (smartphones, tablet computers).
Earlier this month Administrative Law Judge Thomas Pender ordered a partial termination of the ITC investigation of Nokia's complaint against HTC, dismissing one of the nine patents-in-suit. In mid-February Nokia filed a petition for review, asking the Commission, the six-member decision-making body at the top of the U.S. Nokia does not dispute that the legal standard HTC had to meet was that of a claim that is not "wholly groundless". Nokia says that the arbitration HTC wants this patent referred to "cannot provide it with any defense in the investigation".
HTC's argument concerning the '529 patent is related to a feature that Nokia says it does not even accuse of infringement in this investigation.
At this stage of an investigation it rarely happens that the Commission overrules a judge, but this here could be a case in which the Commission identifies a now-or-never situation: if it doesn't use its authority to maintain a reasonable "wholly groundless" standard, it will give up its jurisdiction over numerous cases or parts of case with respect to which parties can raise frivolous arbitration defenses. By the way, the Mannheim Regional Court postponed its decision on Nokia's patent infringement lawsuit against HTC's distribution of the Google Play store app (in which Google is acting as a third-party intervenor) by one week. Various news agencies including AFP report on a statement that Samsung sent to the media, according to which statement the company lost a cellular standard-essential patent (SEP) lawsuit against Apple in Japan. Of the 25 SEP assertions by Samsung against Apple that have either been dropped or come to judgment by now, only three have been successful: two in Samsung's own country (South Korea) and a third one in the Netherlands, where injunctive relief (which Samsung was also pursuing in Japan, while it has meanwhile withdrawn its European SEP-based injunction requests) had been ruled out beforehand and Samsung will receive only a minor amount of damages.
It really wouldn't make sense for FRAND rates (whether determined by arbitrators or federal courts) to be set based on a totally unjustified presumption of essentiality.
By far and away the weirdest ruling in the worldwide smartphone and tablet wars came down last year in the UK, where a publicity order forcing Apple to promote Samsung's products and to make itself ridiculous in public was upheld by an appeals court, and where Apple's efforts to comply with the order were deemed "false and misleading". The judge who gave the first opinion for the appeals court (as you can see at the start of the published decision) was The Rt. For someone so concerned with "integrity" it is utterly unusual to issue a high-profile and extreme ruling in favor of a particular party (Samsung in this case) only to be hired as an expert by that same party in another dispute.
I'm sure that Samsung and Sir Robin Jacob wouldn't be doing this if there was any risk of this conduct violating the law. I also have no doubt that at the time of the ruling Sir Robin Jacob was not being paid, or improperly promised to be paid, by Samsung, and he won't have had any contact with Samsung or Samsung's counsel that would have been against the rules and barred him from adjudicating the Samsung v. Furtermore, Sir Robin Jacob is truly an expert in patent law and there is no question that Samsung will benefit from his knowledge. In my previous post on this case I summarized and quoted from the amicus curiae briefs of former Register of Copyrights of the United States Ralph Oman and three computer science and engineering professors. This submission is unique in that it focuses on the philosophy and history of Java, addressing the legal issues in this case only indirectly.
The strength of this brief is its coherence, which one can only appreciate by reading the actual document. This is my third post in a row on the two dozen submissions the competition enforcers at the Federal Trade Commission received in connection with the proposed Google and Motorola Mobility decision and consent order. Under the envisioned FTC-Google consent decree one of the things an implementer of a FRAND standard can do to fend off injunction requests is to trigger binding arbitration of the royalty rate and other relevant terms of a SEP license agreement.
Many people associate with the word "arbitration" something far more peaceful and helpful than it actually is. It's interesting to see that Apple and Qualcomm, while standing on opposite sides of the FRAND debate, are both somewhat uncomfortable and fear that arbitration could result in non-FRAND terms. The path to a FRAND determination is very important -- more than important enough to talk about it, and starting with the next paragraph I will summarize the concerns raised by Apple and Qualcomm.
Qualcomm would be much less worried about the FTC-Google settlement if the Commission did not suggest that the process outlined in the consent order should serve as a generally applicable model. Qualcomm notes that "a FRAND licensing commitment to ETSI (or to other SSOs relevant to the cellular industry) does not contain any agreement to arbitrate future disputes, or any waiver of the fundamental and statutory right of recourse to courts of law".
Qualcomm says that arbitration "tends to result in 'split the baby' outcomes in an effort to find the middle ground, rather than make sharper decisions clearly favoring the position of one side over the other, even if that may be the right result". From an innovation policy point of view it's absolutely correct and desirable to distinguish between encumbered patents (SEPs and a few others) and unencumbered ones.
Apple's primary concern is that "Google may try to frustrate the arbitration process, cause it to fail in whole or in part, and then seek injunctions upon the claim that it complied with its duties under the Decision and Order". Yesterday I quoted and summarized a few select passages from Apple and Microsoft's submissions to the FTC concerning the proposed Google consent decree. Qualcomm's anxiety with respect to the leverage it will get in the future from its vast numbers of FRAND-pledged standard-essential patents (SEPs) becomes ever clearer. The threat is credible given that Qualcomm's profitability very much depends on its ability to leverage SEPs (partly to strike license deals, partly to sell products on the basis that substantial license fees would be demanded anyway). The first item basically says that many FRAND pledges cannot be construed to waive the right to seek injunctions. The message is basically that Qualcomm is not going to accept this kind of FRAND enforcement framework as a consent decree if it's ever going to be in Google's current situation. The FTC has published 25 submissions commenting on the proposed consent decree in the Google standard-essential patent (SEP) abuse case. Both Apple and Microsoft, who are the targets of Google's (Motorola Mobility's) SEP-based injunction requests that gave rise to the investigation and the envisioned order, state in their submissions (Apple's letter, Microsoft's letter) that Google still hasn't withdrawn all of its SEP-based injunction requests.
Basically, its a month long situation where people who have access to delicious food choose not to eat it while the sun is up as a symbol of sacrifice to God. East Dearborn one of the most diverse neighborhoods you will find in the metro Detroit, second only to Hamtramck. The point of the “Get to Know Your Ethnic Neighborhood” concept is to try to get people out of the standard spots and into the weird places where the locals eat. Case in point: the three best meals I’ve had in Dearborn have been a stores, not in restaurants. Rumor is that these guys will be featuring the Barbacoa Slider as their Mystery Meat Special starting the week of July 30th. I have a neighbor who has a lot of rules:  no sleeves allowed on t-shirts after Memorial Day, all backyard barbecues must have David Allan Coe’s “Greatest Hits” as their soundtrack, and all food you eat during the summer must be dong-shaped. Mix all meatloaf ingredients together, except for one cup of barbecue sauce and the brown sugar. For my first entry into world of Solid Dudes, I wanted to show the “how” of what I do, not the “what”. Trailers are supposed to be a preview of things to come, not shit you released over a month ago.
The judge did not consider "wholly groundless" HTC's assertion that the patent in question, U.S. For lack of access to some critical information I don't want to offer a prediction here, but so far there's really no indication of HTC having a credible arbitration defense.
In connection with cellular standards and many other standards relevant to the ongoing smartphone patent disputes no independent authority actually verifies whether a declared-essential patent is actually essential. I thought Apple was being treated way too harshly because in the end it was just trying to defend its intellectual property rights in court and merely had refused to withdraw a German lawsuit after a UK ruling by a lower court. But that's what has happened here, and I wonder how certain people in Cupertino feel about it. Apparently an ex-judge who is invited to rule on a case involving a given party is not barred by existing UK rules (though this case here may spark a debate over whether some reform is needed) from being hired by the same party in another litigation outside the UK less than four months later.
It gives the impression that a judge who deals Samsung's number one rival a huge PR blow, in a way that I found very extreme and unjustified, will be generously rewarded.
I would now like to highlight the last amicus brief in support of reversal to have become publicly available. For example, the explanation of the "Write Once, Run Anywhere" principle has a bearing on why Google's "fair use" defense should be rejected as a matter of law, and many technical explanations and examples will help the United States Court of Appeals for the Federal Circuit to appreciate the creative choice involved in the authoring of the material Google copied.
The second aspect of the McNealy-Sutphin brief that I wanted to discuss here is similar but complementary to the part of the Spafford-Ding-Hollaar brief that explains creative choices in API design based on the example of a drawCircle method. They show that something is fundamentally problematic about the district court's holding that copyrightability had to be denied partly because the relevant code comes down to a method of operation and partly for "interoperability" reasons.
I previously reported on Apple and Microsoft's criticism of Google's conduct and Qualcomm's thinly-veiled threat to duke it out in court with the FTC should its own pursuit of injuntions based on standard-essential patents (SEPs) come under antitrust scrutiny. Even though the FTC held Google (Motorola Mobility) to have acted anticompetitively, the proposed consent decree imposes requirements on the conduct of innocent implementers unless they opt out of the potential benefits of the antitrust deal. Arbitration isn't superior over litigation in all respects -- it has its specific advantages and drawbacks. They both own SEPs and need SEP licenses from others, but Apple is clearly focused on building products that add tremendous value on top of industry standards while Qualcomm derives a large part of its revenue from SEP licensing and depends on SEPs in its product business. But in the greater scheme of things the parameters of arbitration are not the most important issue relating to the FTC-Google deal. Qualcomm's concern is that others are going to follow that process in their dealings with it. In Qualcomm's opinion, "an arbitration requirement should not be made a routine component of [antitrust] remedies". Anybody can get leverage from SEPs by simply sitting at the standard-setting table and doing a deal with the other participants. Apple's submission provides specific examples of how Google could derail arbitration in order to later claim that it was willing to arbitrate, but Apple (or any other party) was not a willing licensee because it rejected some of Google's preconditions for arbitration:"Arbitration could fail at the outset because the parties are unable to agree on the terms or scope of arbitration.
Apple and Microsoft are the targets of Motorola's deemed-abusive SEP enforcement activities. In December, a law firm submitted a letter to the ITC on Qualcomm's behalf that poured vitriol over Apple only to be withdrawn a couple days later, presumably because senior management determined that this was the wrong way to express disagreement with a huge customer.
The second one says that concerns about excessive royalty rates don't justify antitrust intervention. It wouldn't agree to this, and the FTC (or DoJ) would have to instigate antitrust litigation if it wanted to achieve a similar result.

I'm going to analyze this input in more detail, but there are a few things I wanted to share immediately. Here's what Microsoft says:"[Despite the proposed order] Google has not withdrawn all of its pending injunctive relief actions based on FRAND-encumbered SEPs. Alcamo’s Market: The greatest fucking Italian subs you will ever stuff in your fucking face, ever.
Place on a cookie sheet and begin to sculpt the mixture into the shape of the penis in the picture you chose as the model. It features a couple of our friends that you might recognize from a previous episode doing innovative, groundbreaking work with booze and pastries. Today a public redacted version of Nokia's motion finally entered the public record, enabling me to report on why Nokia believes Judge Pender's decision was mistaken. But even a very low hurdle is a hurdle, and there must be scope for dismissing implausible and unsubstantiated theories. Whatever it is, Nokia says that the most HTC could get out of arbitration (even if all of its factual representations were true) is a license to practice a feature that is not at issue in the investigation. If I find any such indication in other documents that may show up on the ITC's document system in the future, or hear anything at any German Nokia v.
The decision, which may or may not be a final ruling, is now going to come down on March 8, 2013. 7,447,516 on a "method and apparatus for data transmission in a mobile telecommunication system supporting enhanced uplink service", which a California jury did not find infringed last summer. In all fairness, this number includes one stayed case in Germany: after the nullity (invalidation) proceedings that are still ongoing in a parallel case, the infringement case could be resumed, but the patent was considered unlikely to survive in its current form and may no longer be standard-essential in an amended version.
Litigation is always the moment of truth for a patent, and it turns out to be the truth that there's a whole lot of overdeclaration going on. Google subsequently requested additional time to respond to Oracle's opening brief and these submissions. But there are two things that I would like to highlight because they are particularly relevant. An API can provide a function for drawing a circle that is dedicated to this task, or a more flexible drawEllipse method (a circle is an ellipse with two identical axes), or an even more flexible drawPolygon method with a group of parameters including one for the number of sides ("0" would then correspond to a circle). Where there is so much creative choice that three major industry players choose three distinct designs, there must be copyright protection. What I don't want to spend time on is a bunch of filings that just reiterate the usual pro-injunction talking points previously filed with the ITC (for example, BlackBerry's submission consist almost entirely of copies of two letters to the ITC). They must do something, and initiating arbitration is one option, the other being a FRAND determination action in federal court.
Even if parties "agree" to arbitrate, it's merely a procedural agreement, irrespectively of which they could still be light years apart on the substance of a dispute. Therefore, Apple is more concerned about arbitration resulting in royalties and other terms that are too onerous on licensees, while Qualcomm is worried about ways in which willing licensees might game the system and benefit exceedingly from the arbitration option the FTC envisions. The circumstances under which injunctive relief is available are the most important part of this. It concedes that implementers of standards can raise FRAND defenses, but it wants to be able to pursue an injunction from the start rather than having to go through a FRAND determination process first. Once again, Qualcomm opposes the "general applicability" of the FTC-Google settlement, and it expresses fears that "foreign regulators" might also look at this as a template or guideline.
I believe Apple is also concerned that, for example, an unjustifiable 2.25% royalty demand by Google countered with a FRAND rate that is only a fraction of that amount could lead an arbitration tribunal to arrive at a royalty in the 1% range. In this context I'd like to point to a very interesting empirical study conducted by three European researchers (Rudi Bekkers, Rene Bongard and Alessandro Nuvolari) on "the determinants of essential patent claims in compatibility standards". Among the two dozen submissions the FTC received there are also some that advocate SEP-based injunctions, most notably from Qualcomm, Ericsson and BlackBerry.
Meanwhile that same firm -- Cravath, Swaine & Moore -- has made a submission on Qualcomm's behalf, commenting on the envisioned FTC-Google consent order. Qualcomm is aware of developments in case law, in federal court as well as the regulatory arena. The third point is that a couple of Supreme Court decisions provide a certain degree of immunity to a litigant's behavior.
Unlike Google, which also had an interest in putting its antitrust issues in the search engine business to rest, Qualcomm has one and only one concern: a maximum degree of enforceability of FRAND-pledged SEPs. This is true even though these actions were filed against 'willing licensees,' and this anticompetitive conduct by Motorola, and then Google, is the basis for the Complaint in this matter. If you dig even deeper, you will find the last surviving businesses from when the neighborhood was predominantly Italian.
They also have cannoli that will give you diabetes and some strange Italian paczki-like pastry on Thursday’s that will give your diabetes diabetes.
If I told you everything you needed to know, it would detract from how cool my smoker is and then people wouldn’t say things like “Dude, did you see Mark Paul’s smoker?
7,366,529 on a "communication network terminal supporting a plurality of applications" (basically, a patent on a way to route data to apps), fell within the scope of an arbitration clause of a standard-essential patent (SEP) license agreement between Nokia and HTC. Nokia complains that Judge Pender applied the "wholly groundless" standard in a way that would render it meaningless, and that his ruling failed to offer any analysis of some basic aspects of HTC's argument for dismissal (Judge Pender had suggested that Nokia sought a "detailed evaluation of the facts" underlying HTC's motion, which Nokia says isn't needed, but at least some analysis of the merits of the motion must be performed in Nokia's opinion, even under the "wholly groundless" standard). Nokia now hopes that the Commission is not going to "encourage parties to manufacture disputes where non exist, in an attempt to escape the Commisssion's reach" (and to cause delay).
Apple proposes a pragmatic solution to this problem: rather than presume that all declared-essential patents are indeed valid and essential or analyze an entire portfolio, an arbitrator or court should evaluate a "representative set" of declared-essential patents. As Wikipedia explains, he "retired from the Court of Appeal in March 2011" to become a professor, but under Section 9 of the Senior Courts Act 1981, ex-judges can still be invited to sit on the bench. What would people say if Judge Lucy Koh, a few months after denying Apple a permanent injunction against Samsung, returned to private practice and was hired as an "expert" by Samsung in a German litigation with Ericsson?
Patents are not the answer in this context because it doesn't matter which of these APIs came first: irrespectively of novelty, these efforts to make a platform "elegant and easy to learn and memorize" deserve intellectual property protection. A few months ago, Apple and Google discussed the possibility of having their FRAND dispute resolved through arbitration, and this led some commentators to believe that a settlement was near. It's no secret that I'm much closer to Apple's positions on FRAND than Qualcomm's, but both companies express concerns about arbitration that are worth thinking about.
An injunction can cause more consumer harm than unfairly high or low royalties -- and an injunction, or sometimes just a credible threat of one, provides a SEP holder with the leverage to become "the dictator of the royalties", which is more than he'll ever be in any reasonably-conducted arbitration. The regulatory agency Qualcomm is presumably thinking of in the first place is the European Commission's Directorate-General for Competition (DG COMP). Their key finding is that "the involvement in the standardization process is a stronger determinant than the technical value ('merit') of the patent". Of the submissions made by the pro-injunction camp I consider Qualcomm's letter the most interesting one. The letter contains a thinly-veiled threat that Qualcomm is prepared to take the FTC to court over standard-essential patents should its own pursuit of injunctions against allegedly-unwilling licensees be investigated and held anticompetitive. Yesterday I quoted from a joint Huawei-ZTE filing in an InterDigital case a passage that recalls various high-profile decisions and statements by U.S. Google decided to take the deal the SEP offered because it felt that there were enough loopholes in it that it wasn't wise to fight over SEPs and complicate a settlement on the search engine side. We assume that Google's refusal to withdraw its pending claims for injunctive relief means that it interprets the proposed Order to permit it to continue its existing claims for injunctive relief, notwithstanding the Commission's public statement to the contrary. I tried to eat it but I couldn’t, it was too rich, so I stuffed it down my pants and made sweet love to it. For his 40th Birthday, I wanted to do something special for my dong-shaped food loving buddy so I did what any friend would do…I made him a giant meat-cock to eat with a special horseradish-jizz sauce.
Once formed, mix the barbecue sauce and brown sugar together and slather over the meat in an upward motion. This is where I smoke the tastiest meat in Ferndale, a claim previously held by a guy named Blake “Tasty Meat” Jones, who was a waiter at Como’s. Occasionally things are going to fall through the cracks, so strap on a helmet and get used to disappointment. But it appears that the license agreement is clear (even though quotes from it are redacted) that only SEPs fall within its scope. I guess there are written or at least unwritten rules in the United States that would prevent this from happening in the first place. There are probably many thousands of lawsuits pending right now in federal and state courts in which no one is even contemplating arbitration, yet many of the parties to those disputes are considerably closer to a settlement than Apple and Google were last year when they explored this possibility. In terms of priorities, I continue to believe that the "defensive use" exception, a recipe for mayhem, should be the first and foremost issue for the FTC to reconsider, especially in light of what's happening between Ericsson and Samsung on the one hand and between HTC and Nokia on the other hand.
It wants to be the dictator of the royalties rather than have others set royalty rates and other contract terms.
Qualcomm would probably go into arbitration with a demand that is far more realistic, relative to the strength of its portfolio, than what Google's Motorola has asked for -- and Qualcomm would not want to see a reasonable demand cut in half by the arbitrators. It additionally makes some other constructive suggestions, which I'll discuss in the remainder of this post.Apple proposes a "representative set" approach. In this post I will talk about Qualcomm's aggressive stance; in a subsequent post I'll discuss the concerns relating to arbitration that Apple and Qualcomm have outlined (they arrive at completely different conclusions, but both submissions have in common that they believe arbitration could lead to non-FRAND rate determinations). Qualcomm does not say explicitly "we (Qualcomm) are going to sue you", but if a company that has its own antitrust history in connection with SEPs says that the FTC's approach "will face serious judicial challenge", it doesn't mean to say "we (Qualcomm) are not going to do it because we're too nice to sue, but we're afraid that others will".
Qualcomm, however, indicates that it won't waver in its defense of its number one (and two and three) business interest. Dearborn Meat Market: I was taken here for a buffet of various meats, cooked over a lebanese charcoal grill by a midget standing on a table in what amounted to a Florida room attached to the back of this butcher shop. Four months, six cases of Coors Light, and $80 later, it coughed out its first puff of smoke. Apple case that made headline news around the world because it appeared that Apple filed frivolous lawsuits (which is not true).

If judges (or regulators) encourage arbitration, they often do so simply because it disposes of cases they otherwise have to rule on.
Microsoft's submission focuses on this concern, while other filings place the emphasis on corporate interests that are not closely related to consumer interests. Qualcomm warns that "if arbitration looms over a negotiation, then both parties have a perverse incentive to exaggerate their demands, to increase the gap, in the hopes that by asking for a high-ball (or low-ball) result, the final 'middle ground' ruling from the arbitrator will be at an attractive point". I previously reported that Apple highlights Samsung and Google's dismal litigation track record with their multijurisdictional SEP assertions. What Huawei and ZTE seek to leverage in their role as defendants is what Qualcomm is presumably experiencing as a nightmare.
Without a doubt, this is a threat to go to court if the broad lines of the proposed FTC-Google decision and order are ever applied to Qualcomm's pursuit of injunctions. Everything will then depend on antitrust regulators' determination to defend the public interest. Their suffering can be your pleasure as you can go to any restaurant in East Dearborn and get a table with no wait for the entire month, though the staff will fucking hate you because they are starving and have to serve you food. Now, allow the meat to hit room temp and prepare the jizz sauce by simply mixing together all ingredients, looking at the picture of jizz and asking yourself why a grown adult would ever do something like this, and then allow them to sit and blend until the meat is ready. In a ruling on Apple's first attempt to comply with the publicity order, Sir Robin Jacob even noted a "lack of integrity".
That said, if arbitration results in unfair terms, that's also a bad thing for consumers, though not as directly as a sales or import ban. In principle, I agree with Qualcomm, except that I believe that in most cases this will benefit SEP holders. Often, the primary benefit that drives parties to choose arbitration is confidentiality--a benefit that does not appear to be pertinent to the Commission's concerns. Apple stresses that a SEP holder must prove actual infringement of a valid patent just like any other patent holder.
The fact that Qualcomm makes lots of money with SEPs doesn't mean that the standardization system would grind to a halt if SEP holders like Qualcomm couldn't seek sales and import bans -- but the harm to consumers from excessive SEP royalties and abusive injunctions is clear. It is still looking for an opportunity to enforce an H.264 patent injunction it won last year. If, for some strange reason, you don’t like you food shaped like a dong, feel free to mold it in anyway you see fit.
Smoke the meatloaf for at 225* for 4-5 hours, or until the internal temperature reaches 170 degrees Fahrenheit, not Kelvin. The {proposed consent decree] structure, of course, does not mandate arbitration; it merely requires Google to offer binding arbitration. Here's what Apple says about it:"All that said, Google's actions and public statements since the issuance ofthe FTC's Complaint raise concerns that it has yet to get the message. It simply can't exaggerate the way that companies with far weaker SEP portfolios, such as Google or Samsung, have done in some ongoing litigations. But where arbitration is likely to be the more efficient route and both parties are acting in good faith, SEP owners and implementers will always be free to elect arbitration, so the efficiencies of arbitration, if any, are always within reach."Qualcomm's fifth and final point is that the proposed deal structure, if it becomes a generally applicable model, results in a shift to a "rate-regulation regime".
Given that it's not feasible for courts or arbitration tribunals to analyze dozens or hundreds of SEPs in one proceeding, I think Apple's suggestion is a very pragmatic approach. I had Lebanese Salmon with Vegetable Saffron Rice for $6 dollars and it came from a grocery store. If Qualcomm wanted to exaggerate by the same factors as Samsung and Motorola, it would have to ask for double-digit, if not triple-digit percentages.
While Qualcomm is right that the parties understand their own businesses better than arbitrators (or judges and court-appointed experts, for that matter), the problem in a growing number of FRAND negotiations is not lack of knowledge and insight but simply that certain SEP holders make prohibitive demands. Most declared-essential patents aren't both valid and truly essential, and even truly essential ones aren't infringed if a feature of a standard is optional and not actually implemented. Take pictures of your guests pretending it is their penis and then sit back and laugh as your friends eat this giant meat-dick.
Arbitration or court determination of FRAND terms are preferable over a might-makes-right regime in which the threat of lethal SEP-based injunctions determines the outcome. All of these issues must be assessed in order to determine the fair market value of a SEP portfolio.Apple wants licensees to be entitled "to meaningful discovery into the terms of the patent holder's other licenses, among other evidence critical to determining FRAND license terms in both arbitrations and declaratoryjudgment actions under the proposed framework". I’ve given you a picture of it, go do something about it and piss on La Shish’s door while you eat it (full disclosure: I kind of like La Shish. I recently heard Judge Voss of the Mannheim Regional Court mention that in his experience court-appointed damages experts in Germany almost always arrive at figures in the 2% to 5% range -- which is also way too high in most cases given the huge number of patents that need to be licensed to build a wireless device.Qualcomm furthermore dislikes the notion of cherrypicking of FRAND terms by implementers. The proposed FTC consent decree is designed to limit the scope of arbitration or litigation. Therefore, willing licensees can request arbitration or court determination with respect to only those terms the parties can't agree on. Microsoft says there should be no exceptions to the rule that injunctions cannot be sought against willing licensees.
Qualcomm recognizes that this is "a well meant attempt to narrow issues in dispute", but believes it's better to assess the reasonableness of a license agreement as a whole than to create an incentive for implementers to play the following kind of game:"Picture, for example, a licensing negotiation in which the prospective licensee has indicated that it would be willing to bear unusual risk in the form of a large, one-time, up-front payment if by doing so it could enjoy a lower running royalty rate. In a passage I quoted further above, Qualcomm says that "[o]ften, the primary benefit that drives parties to choose arbitration is confidentiality".In light of the commercial significance of SEP licensing terms it's absolutely key in Apple's view to have access to a "substantive appellate review".
I'm also against self-help: companies should never be authorized or encouraged to take the law into their own hands. Responding in good faith, the SEP-holder makes a good faith offer including the requested low running royalty rate and a large, one-time, up-front fee.
Apple wants to ensure that arbitration rulings will be "subject to judicial review for errors of fact or law". As a litigation watcher I see the threat to consumer interests that mutual SEP-based injunction requests such as in the Ericsson-Samsung dispute pose, and how unbelievably far-fetched the theories of some litigants are if they believe they have a benefit from alleging that a patent they have to defend themselves against is standard-essential, which would also happen if someone wants to invoke the "defensive use" clause in order to respond to non-SEP litigation with SEP-based retaliatory injunction requests.The final paragraph of Microsoft's letter is a suggestion that the FTC could adopt without any modification to the proposed consent decree. Under the process laid out in the [proposed FTC-Google decision and consent order], upon receipt of a licensing offer from the SEP-holder, the licensee could seek arbitration of the up-front fee alone, thereby locking in the running royalty rate, as well as any or all of the other terms of the agreement--the very terms through which compromises are often reached in a private negotiation. From a rule-of-law point of view this makes sense, but it also makes arbitration less binding. Microsoft would consider it useful to clarify that the procedures set forth in the proposed order are not the only basis on which a defendant can argue that the pursuit of injunctive relief is abusive. As Microsoft's letter points out, it's unusual enough that the proposed order in this case "appears to create obligations for third parties if they wish to shield themselves from the injunctive relief actions that Google already relinquished under the reasoning of the proposed Complaint".
What it says sounds like de novo.Apple proposes, for the method of appointment of arbitrators, "that each party picks one arbitrator and the two appointed arbitrators pick a third arbitrator".
Pre-arbitration (or pre-litigation) posturing by SEP holders is at least as much of a possibility as pre-arbitration posturing by willing licensees, even though licensees have the unilateral option to initiate arbitration.Qualcomm's third point in this context is one I don't consider valid in the slightest. This is the most common approach, and Apple wants it to be applied consistently.Apple wants there to be competition between arbitration organizations and encourages the FTC to add more organizations to its list of qualified arbitration organizations. Qualcomm basically says that implementers of standards could get the best possible result for their purposes from arbitration and still improve the deal terms by subsequently asserting non-SEPs (which are typically not subject to such rules) against the SEP holder (unless the SEP holder is a non-practicing entity, of course), and then get terms for a "whole-portfolio license" (relating to the parties' SEPs as well as non-SEPs) that result in a reduction of the royalties paid for the SEPs involved.While the outcome that Qualcomm describes can of course correspond to what happens in certain cases, I don't see why this would be relevant from an antitrust point of view as long as there is no abuse of non-SEPs. But there's always a problem with having courts, or arbitration organizations in this case, compete with each other: it may lead them to favor the interests of those who pick the court. At most standard setting organizations, patentees unilaterally declare their patents to be essential to a standard. The objective here, in the FTC-Google and wider SEP context, is to ensure that SEPs aren't leveraged anticompetitively to force companies to give away their non-SEPs or license them at rates that are too low. That's because SEPs always raise antitrust issues and come with a FRAND licensing obligation, while non-SEPs don't.
In the FTC-Google consent decree context, implementers of standards would potentially benefit from more competition. Further, patentees are often required to declare their potentially essential patents before the standard is determined, which necessarily will result in over-declaration. The other suggestions that Apple makes are also in the public interest, but this one here, while not completely unreasonable, appears too self-serving.
The incentives to disclose patents, the lack of independent verification, and the disclosure requirements of standard setting organizations have led to significant over-declaration.
If a SEP holder believes that a cross-licensing counterpart is demanding too much for its non-SEPs (such as a massive reduction of SEP royalties), the solution is to walk out on the deal and work around the non-SEPs involved. For example, over 7,300 patents have been declared as essential to UMTS, a 3G cellular standard.
Qualcomm implies that SEP holders are generally entitled to whole-portfolio cross-licenses.
Independent third-party analysis suggests that the majority of these patents are not technically essential to the UMTS standard.
Apple's experience has shown that declared-essential patent holders often fail to satisfy their burdens of proof on these issues in litigation. For example, MMI has asserted ten declared-essential patents against Apple in the United States and Germany.
To date, Samsung has lost thirteen decisions (either because of non-infringement or invalidity or both) and won only three.
For example, it all depends on the amount of space you have available, the style chosen for the rest of the rooms, the personal needs and preferences. Two of the legs need to have a hollow center so you can run a power cord in one and an internet cable in the other. Trim the legs to the final dimensions and cut a 15 degree angle at the top and bottom of each leg.View in galleryThen cut a 75 degree angle in each leg so it can be mounted to the oak runner that connects them.

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