Google-owned Motorola Mobility is about to embark on two trials over its standard-essential patents (SEPs). It’s up against Microsoft in Seattle and faces Apple in Madison. Apparently there may be overlaps between the two trials and some of the pretrial rulings don’t look great for Motorola.
We knew the patent portfolio was a big part of Google’s acquisition and it has allowed the company to fight back against its two main competitors in the courts where Android manufacturers have been under siege. Motorola is claiming SEP infringement and hoping to force import bans that could be used as leverage against Apple, in particular, and its patent infringement claims on Motorola.
The whole idea of FRAND is that it is “Fair, Reasonable, and Non-Discriminatory” with regard to patent licensing terms. Motorola has to offer licensing terms on its SEPs, but it asked for 2.25 percent of the total retail price of devices, which Apple felt was unfair. According to Florian Mueller at FOSS Patents the risk here for Motorola is that Apple wins a “court-ordered FRAND license”. That’s exactly what happened in a trial in Germany recently.
Apparently much will depend on previous negotiation between the companies. How hard did they negotiate? We simply don’t know. Mueller does also point out that Motorola could get some mileage from the reciprocity clause. Apple may have refused to provide a license for its own patents which could impact on whether Motorola is at fault.
In any case the judges in both cases have made it clear they want to find a definitive solution that will preclude further litigation and that’s likely to mean a court-ordered FRAND license where they will set fair terms. This could have knock on effects for all future infringement cases involving FRAND patents.
We will keep you posted.