The basis was laid in the Nokia-Apple lawsuit over FRAND patents. During negotiations for the license of Nokia's FRAND patents, Nokia asked for a cross-license to Apple's UI patents instead of money. Apple said no, negotiations fell apart and the matter went to court.
In court, both parties lost. Nokia didn't get the cross-license they wanted. Instead, they got a ridiculous amount of money out of Apple.
Precedent has now been set that FRAND patents can be worth a ridiculous amount of money. Motorola/Google now also want a ridiculous amount of money for their FRAND patents.
My assumption is that what Google really wants is a cross-license, that their demand for ridiculous amounts of money is only a negotiating position. The alternative thesis, that Google has gone over to the dark side, is looking increasingly plausible though.
Second, it was already well-established that FRAND patents could be worth silly amounts of money, not just a cross-licensing poker chip. For example Qualcomm and Nokia had an extended series of lawsuits over 15 years, including exactly the kinds of antics that are going on now (e.g. complaints to authorities about misuse of FRAND patents). The final lawsuit was settled such that Nokia licensed Qualcomms patents for $billions (much more than Apple paid Nokia), while Qualcomm didn't license Nokia's patents (giving Nokia the option of going after Qualcomm's customers).
Third, the amounts that Google is demanding aren't actually ridiculous by the standards of the industry. And sure, what Google is really after is likely a cross-licensing deal, given Apple's and Microsoft's patent extortion rates.
The order starts off explaining why she earlier thought she should take up the case, and force Motorola to specific FRAND licensing terms.
Motorola then demanded that Apple agree to the Judge's determination of the specific licensing terms.
When Apple then said they'd only take the licensing terms set by the Judge as an upper-bound, and agree to the licensing terms only if it was under a dollar per phone, the Judge realized that any trial would only serve as a negotiating strategy for Apple setting an upper-bound, and that the subject under trial was far too complex for the Judge to issue a specific performance, and was more amenable to a binding arbitration.
The court would be resolving all of the issues raised
in this case without necessarily bringing the
parties any closer to a license agreement.
In effect, Apple was asking the court to assist it in
negotiating, not in putting the parties’ dispute to rest.
For those of you who thought that Motorola has been violating the law on its FRAND obligations this is a reality-check.
The order is a relatively easy read, and quite candid in showing how a Judge would change her thoughts as a case progressed through many stages.
[edit] added Judge's quote
I don't see how that follows from the rest of your comment. It is quite possible for Motorola to be breaking their commitments to FRAND licensing it just isn't going to be tested in this case. [I agree with the rest of your comment.]
I'm going to read the article now but even if you are right then that is really bad news for the world as owners of standards essential patents have the power to bring whole industries to gridlock and to demand massive sums for patent licensing.
Edit: I've read it now. As i read it there is nothing that closes the question of whether Motorola is breaching it's contract with ETSI. The judge doesn't want to spend time to decide a FRAND value if that doesn't close the case (because Apple aren't committed to pay the price). I stand by my point that this does nothing to decide whether Motorola has breached their commitments. I didn't see any comment regarding anti-trust law from this judge and I don't know if that topic was ever on the table in this case.
I don't think it's that bad, considering where FRAND comes from: It's a contract term they put into agreements that industry bodies require members to adhere to before they'll accept known patented technologies into industry standards. If it turns out that the courts interpret it to mean something disastrous then they'll just start using a different term for future standards. Or just put the actual licensing price in the contract.
In theory that would still leave a problem for all the existing standards, but I don't see how that problem is significantly worse than the existing problem with submarine patents that were never FRAND in the first place because the patentees didn't participate in the standards process.
>I didn't see any comment regarding anti-trust law from this judge and I don't know if that topic was ever on the table in this case.
The relationship between patents and antitrust is by nature inscrutable. The whole point of a patent is to create a temporary monopoly to reward the inventor with monopoly profits. But the patent is only supposed to cover the claims -- so when a patent is essential for a standard, the patent inherently can be used to block implementation of the standard, including those aspects of it that supposedly aren't covered by the claims.
The result is a situation where either you de facto prohibit the patentee from enforcing the patent against any infringer (i.e. everyone) who is implementing the standard (perhaps in exchange for some almost certainly below-market royalty chosen arbitrarily by the courts), or you de facto allow the patentee to expand the scope of the patent to the entire standard rather than only the claims as it ought to be. There isn't really a lot of middle ground: You have to pick whether you want meaningful patents (else anyone can just make a standard around it and claim a right to violate the patent's guarantee of exclusivity) or meaningful antitrust (else anyone can allow their submarine patents into a standard and then sue the world). There is no guarantee that the courts will be able to find a solution to that capable of making everyone happy.
Except of course when exactly the same argument is made against the patent system in general. A lovely little retort to that has become a favorite refuge of the patent supporters: "You just want to - " -- wait for it -- "STEAL!". Apparently, elementary logic is unavailable to the so called inventors. Because, believe it or not, an argument has even been made that you're not an inventor, unless you support the patent system. Even more, an argument has been made that you're dirty thief... unless you support the patent system.
The patent system has outlived its usefulness. Nay, it hasn't been useful since day one. It arrived stillborn, and its zombie has been haunting the inventors world over ever since it's been exhumed.
An impassioned appeal you say? A thousand times yes. The patent system is an unethical social construct that has been perpetrated upon and abused... against countless honest, fair folks who want nothing more than to practice the fruits of their labor. Many, many times their labor is a function of an independent discovery. This is often challenged by patent supporters as impossible. Their argument boils down to: "You can't invent FFT! Only the patent supporters can!"
Last of course, but far from least is the fundamental hypocrisy of this all: if you were to enumerate everything the patent supporters use to practice their art, you will invariably find their contribution insignificant, nay, not even visible when placed against the foundational background. They readily accept locking out entire swaths of science and technology for themselves, without ever acknowledging the monumental contribution of people... mathematicians, scientists... GIANTS!
Those giants, in their generosity and brilliance have made our world better. The patent system, I would argue, has made our world worse.
FRAND is a necessary part of keeping the dysfunctional system working at all and while I see no prospect of patents overall being abolished I don't think that is a bad thing.
What is the difference between an illegal cartel of competitors fixing the market and a standards setting body?
The answer lies in the rules standards bodies put in place to ensure that OTHER companies not in the group can compete in the market created around the standard. One of these rules is FRAND commitments on patents to ensure that standards body members that get their patents into the standard (which they nearly try to and do) cannot just try to claim ALL the profit from every competitor by setting significant license fees.
Edit: Typos/spelling errors. Unfortunately can't fix "it's" in my other comment though.
But even if all companies played by the FRAND rules, there would still be fundamental unfairness in the system, not unlike one that FRAND proponents point out. That unfairness lies in the fact that FRAND or not, unscrupulous incumbents will relentlessly seek any 'redress' against newcomers. In other words, they will hammer you with any patent they think they have a good chance of flattening you with. This goes a long way to furthering their ability to form cartels, especially among the big incumbents with thousands of patents.
As an aside, I also find the cognitive dissonance exhibited in these debates quite entertaining. On the one hand we have the contingent that proclaims that "GREED is good!", a la Mr. Gekko. Nice. If they can prevent you from practicing your very own idea, they would. But then, the very same contingent all of a sudden grows a moral backbone when they resort to the arguments: "But you stole my ideaz?!?".
I reject any notion that FRAND regime is special. If you're not invited to be a party to a standard, then create your own. The 'can't work around' argument doesn't hold water.
The same exact, 'can't work around' argument is often very applicable to any patent discussion. At least in the case of copyrights, we have the merger doctrine. In the case of patents, if someone managed to lock up fundamental methods, good luck. In fact, the system is so screwed that it's possible for someone to lock up methods that they didn't even discover.
Herein lies another problem however: creating your own standard would not absolve you of any territorial squabbles. In fact, in that case, and now being outside the umbrella of FRAND, unscrupulous incumbents will try to make this quite impossible for you, with the patents supporters, and particularly the FRAND crowd uttering nary a whisper.
It is going to cause massive distress to the entire electronics industry if you can no longer purchase a component and expect to be indemnified against upstream patent infringement.
Will be interesting if CSIRO for example can sue everyone that implements WiFi.
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I've had this perverse fantasy that some asshole would create a patent troll company that goes around specifically targeting Microsoft, Apple, and IBM's customers vigorously (the companies can protect themselves quite well which is why you would want to go after their customers) with patent threats to make them feel some pain from these shitty laws they keep propping up and extending.
Alas, trolls seem to go after small companies and startups (unrelated to the big guys) and MS, Apple, and IBM get by relatively unscathed.
But that's just me pretending to be tough. That doesn't really seem like a nice way of fixing things.
Are you referring to this specific case or arguments Motorola was making in other cases?