| News | Features | Interviews |
| Blog | Contact | Editorials |
| Apple's licensing offer raises questions about FRAND |
| By Thom Holwerda on 2012-10-22 13:36:31 |
| "One of the exhibits Samsung has now made public tells an interesting tale. It's the slide presentation that Apple showed Samsung when it first tried (and failed) to get Samsung to license Apple's patents prior to the start of litigation. While some of the numbers were earlier reported on when the exhibit was used at trial, the slides themselves provide more data - specifically on the difference between what Apple wanted Samsung to pay for Windows phones and for Android phones. The slides punch huge holes in Apple's FRAND arguments. Apple and Microsoft complain to regulators about FRAND rates being excessive and oppressive at approximately $6 per unit, or 2.4%; but the Apple offer was not only at a much higher rate, it targeted Android in a way that seems deliberately designed to destroy its ability to compete in the marketplace." Eagerly awaiting the 45 paragraph comment explaining how this is completely fair and not hypocritical at all. Bonus points if it includes something about Eric Schmidt being on Apple's board, and, double bonus point if it mentions one of the QWERTY Android prototypes. Mega Epic Bonus if it somehow manages to draw a line from Edison, Tesla, to Jobs. |
|
| Dubious argument |
| By flypig on 2012-10-22 14:14:35 |
|
I'm absolutely no fan of the way Apple is throwing its weight around in the patent space, but this article seems to present a number of dubious arguments to me. First, the discount for using a Windows OS is based on the fact the patents are already being paid for in the Windows licence. All Apple are doing is offering not to double-charge Samsung. I'm not sure it's reasonable to claim this is a bias towards Windows over Android. It may be the incorporated cost of the patents in a Windows licence is less than the $12 Apple wants to charge for these, but since we don't know the cost breakdown of a Windows licence, it's impossible to know. Second, it seems odd to suggest that because Google makes the best mapping software, it's okay for Google to push everyone else out of the market. I'm no expert in competition law, but I'm fairly sure the argument goes something like this: if Google have a monopoly they'll no longer have to compete, so there'll be no reason for them to improve their services. It's important therefore to remove barriers to competition, so that even if Google is the best, someone else can come along with a better product at any time. I'd be happy to see an article about the validity of a capitalist approach in a free-service economy, but I'm not convinced this was really what the article was driving at. I'm sure there were some excellent points made elsewhere in the article and I'm happy to be corrected, but these two arguments seemed to stand out as unconvincing to me. |
 - Score: 4 |
| RE: Dubious argument |
| By Thom_Holwerda on 2012-10-22 14:19:45 |
|
> I'm sure there were some excellent points made elsewhere in the article and I'm happy to be corrected, but these two arguments seemed to stand out as unconvincing to me. Yeah, that part wasn't particularly convincing. I cared about the FRAND stuff, though - I'm glad authorities are keeping close tabs on a company as large and possibly dangerous as Google. |
| - Score: 2 |
| RE: Dubious argument |
| By kwan_e on 2012-10-22 14:24:40 |
|
> Second, it seems odd to suggest that because Google makes the best mapping software, it's okay for Google to push everyone else out of the market. First, That was not the suggestion at all. Second, Google isn't doing anything anticompetitive against other map makers, at least not in the same way Apple and Microsoft are. |
| - Score: 4 |
| RE[2]: Dubious argument |
| By TechGeek on 2012-10-22 14:27:43 |
|
I wouldn't be quite so upset if I actually could see some harm from Google being #1. Google spends an enormous amount of money creating maps. Why should they not get to dominate the market. No one is stopping anyone else from spending millions to make better maps. I also see search results as an opinion. No matter how Google gets its results, they are Google's opinion of the top results. I may rank things differently. As such, opinion is a form of speech and to be protected at all costs. Edited 2012-10-22 14:28 UTC |
| - Score: 3 |
| Apples and oranges |
| By oskeladden on 2012-10-22 14:45:27 |
|
I intensely dislike software patents and Apple's use of them, but the Groklaw comment seems completely off base. There is no general obligation in law to license standards-essential patents on FRAND terms. The obligation to grant FRAND licenses is purely contractual, and comes only to the extent imposed by the bylaws of organisations companies join. Specifically, if a company chooses to join a standard-setting organisation, the organisation's bylaws will impose upon it an obligation to license its patents on FRAND terms to the extent they are relevant to a standard approved by that organisation (and only to that extent). In other words, the obligation to grant FRAND licenses is a voluntarily assumed contractual obligation that companies take upon themselves because of the benefits they derive from (a) reciprocity in terms of licenses for that standard (b) the volume of licenses generated by having a patent form part of a standard. As a result, it only applies to standards the bylaws cover. As far as Apple's dealings with Samsung go, there is no obligation to grant a license on FRAND terms. As far as I am aware, there is no "touchscreen standard" that has been created by a standard-setting organisation (unlike the GSM standard, or the 802.11n standard). Apple (or, for that matter, Microsoft) is, therefore, legally free to be as money-gouging as it wants - unlike Motorola, which is bound by the fact that it has contractually agreed to grant FRAND licenses to Apple, Microsoft. and anyone else who asks. That is, in terms purely of patent law. Those slides seem to me to potentially raise antitrust issues (or, in Europe, competition law issues), but it's hard to tell without a broader context and without looking at figures. FRAND licenses, in general, help avoid competition law issues, which is another reason why companies agree to grant them. Apple seems to me to possibly be dancing close to the border of what's permissible, but without a broader sense of what happened in the discussions - and of Apple's corporate practices on licensing generally - it's hard to say. For the record, I am not a fan of Apple's tactics (or of the ridiculously broad patents that are the rule nowadays). There is a horrible danger that this could end up becoming a zero-sum game. If companies who find themselves unable to retaliate against Apple because they're contractually tied into FRAND terms end up turning against the FRAND system, that will spell disaster for smaller manufacturers worldwide. But that's a different issue, unrelated to the one Groklaw raised. |
| - Score: 5 |
| Apples patents are not FRAND |
| By vaette on 2012-10-22 14:48:08 |
|
This is hugely misleading, the Apple patents in question are not FRAND, they can charge whatever they want for them. There are many things wrong with the patent system, but this is not an example. It is not at all surprising that Apple offered an unreasonable deal, since what they really want is for Samsung to differentiate from the patents in question. The difference between FRAND and non-FRAND is one of the things that isn't particularly broken about the patent system. Here other issues, such as broad and obvious patents, simply make it seem problematic. Edited 2012-10-22 14:48 UTC |
| - Score: 2 |
| RE[2]: Dubious argument |
| By Hiev on 2012-10-22 14:48:20 |
| What about the vandalism to Open Streeth Maps? Google never came out with an explanation, till now, they are still "investigating" the issue. |
| - Score: 3 |
| RE[3]: Dubious argument |
| By flypig on 2012-10-22 14:55:17 |
|
> I wouldn't be quite so upset if I actually could see some harm from Google being #1. Google spends an enormous amount of money creating maps. Why should they not get to dominate the market. But that's exactly the point. Competition law isn't supposed to prevent companies dominating the market. It's to prevent them from exploiting this position and creating unfair barriers to others entering markets. If Google takes advantage of their Web search position to promote their mapping products (say), then this might be an example. If their mapping product is popular based on its own merits, then there's nothing wrong with that. Also, to be clear, the law isn't just intended to protect you now: it's to protect you in the future. Once Google has driven/bought all of the other innovative companies (by which I don't necessarily mean Apple, Nokia or Tom Tom) out of the market, they can stop investing the millions they've been doing up until now. |
| - Score: 4 |
| RE[2]: Dubious argument |
| By flypig on 2012-10-22 14:58:03 |
|
> I cared about the FRAND stuff, though Yes, same here. Although Apple's patents aren't technically FRAND (I don't think), the discrepancy between what they were demanding, and what they claim is fair, does seem hypocritical. |
| - Score: 3 |
| Super triple bonus... |
| By bowkota on 2012-10-22 14:59:38 |
|
Super triple bonus if Thom's next post is somehow related to Google, where it praises them in some way or another while dissing Apple and at the same time linking to Groklaw. Edited 2012-10-22 15:00 UTC |
| - Score: 1 |
| News | Features | Interviews |
| Blog | Contact | Editorials |