The patent wars have been raging on for years now and it feels even longer. Apple has sued a variety of companies and in the Android sphere a major defensive strategy, for Samsung and Motorola in particular, has been to fight back with SEPs or standard-essential patents. These patents are, as the name suggests, essential standards, and as such they have to be licensed. This is where FRAND comes in, SEPs are supposed to be licensed under fair, reasonable, and non-discriminatory terms.
Samsung and Motorola claim to have offered fair terms to Apple over the use of several SEPs, unsurprisingly Apple claims the terms were unfair. Apple is now arguing that the failure to negotiate down is FRAND abuse and has successfully blocked injunction attempts based on SEPs in the U.S. at least. It seems Qualcomm is far from impressed with Apple’s strategy as you can see from the answers given to questions posed by the investigating ITC Commission, reported on FOSS Patents,
“Of course, Apple’s premise of ‘a willing licensee with a good-faith disagreement who wants nothing other than for a disinterested party to determine what terms are FRAND’ is itself a sham and a pretext. At the recent proceedings before Judge Crabb in the Western District of Wisconsin, Apple’s ‘willing licensee’ mask fell off, when it absolutely refused–even at the cost of having its case dismissed–to commit to take a license to Motorola’s SEP portfolio on whatever terms the court might determine to be FRAND. Having literally walked away, minutes before trial, from an opportunity for an adjudication as to whether Motorola had offered FRAND terms to Apple, Apple should be embarrassed–but apparently is not–to demand that the Commission divest itself of jurisdiction unless and until a ‘U.S. Court has determined [the relevant license terms] to be FRAND’.
If Apple is not a willing licensee, and in any event there is no risk of an exclusion order (or injunction) shutting down a truly willing licensee, what is the real agenda? It is to shelter the unwilling licensee–the infringer that, like Apple, has no interest at all in paying market-validated royalty rates. It is to ensure that SEP infringers can only be called to account under rules, and in fora, in which they may gain yardage, but can never lose.”
It’s a pretty damning indictment of Apple’s strategy and somewhat surprising considering that Qualcomm is still a major Apple supplier. Florian Mueller suggests, quite convincingly, on FOSS Patents that what is really behind this vitriol is Qualcomm’s own desires to monetize its large SEP portfolio. We’ll keep you posted on what the ITC decides.