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back to article US gov advised to SUE GOOGLE by FTC over patent trade wars

The US government has reportedly been advised by the Federal Trade Commission to sue Google for breaching competition law, because of the ad giant's requests to US courts to prevent the sale of goods it claims infringe its essential patents. According to Bloomberg, which cites anonymous sources, the five-member Federal Trade …

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Anonymous Coward

Bollocks !

Apple and MS have a non sue agreement between them, both of them are trying to sue Google out of existence to keep themselves as a dupoloy. If anyone wants investigating over using frivolous patents as a means of barrier to entry then it is MS and Apple.

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Anonymous Coward

Re: Bollocks !

There's a difference between what apple/ms are doing and what google are doing.

Apple + MS are telling google to stop using their 'frivolous' (some are :) patents or pay up. Goole are doing the same for their non-frivolous patents. Apple + MS are suing over patents that can be worked around - i.e. if Google aren't happy about it, they can simple remove or change features like 'rubber-band scrolling' from android, stick their middle finger up and walk away.

Google are suing over *essential* patents though. Apple + MS can't really remove 3G, WiFi and h264 from their products - if they did, nobody would buy them.

So what MS + apple are doing is trying to get a competitive advantage (apple) or some cash (MS). What google is doing is trying to block competitors from the market.

See why there's a problem, and the regulators are getting involved (in the EU as well as the US)?

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FAIL

Re: Bollocks !

SEPs must be licensed on FRAND terms. I completely agree with this. It is the only way to ensure standards are standard (when they incorporate patented technology).

This does not mean someone can use it without a license. The license should be granted, IMHO, before the product goes on sale (or at the very least be in the late stages of negotiation). Apple and MS both knew they needed a license for the patents. If they failed to get them, that is their problem and the case should be dealt with as any other patent case.

If the potential licensee thinks they are not being given FRAND terms (and negotiation fails), they should deal with that in the courts straight away. A little leeway can be granted in this, in that the company has tried to negotiate a FRAND license but disagrees with the terms. However, to (as Apple seem to have done) just go ahead means they are wilfully violating the patent without attempting to secure a license.

So, had Apple taken Motorola/Google to court straight away for failing to offer FRAND terms, they would not be the bad guys. As they didn't, they basically flipped the patent system off and ripped off Moto/Google's technology.

The same goes for any FRAND patent dispute: Don't just rip it off if negotiations fail, take them to court to ensure FRAND terms. If you don't, you are violating the patents. Simples.

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Anonymous Coward

Re: Bollocks !

It's not this simple. If the patent holder doesn't want to offer a license, they can offer a license at unacceptable rates, and then negotiate without intention to grant a license. Following your suggestion, the licensees (apple + MS in this case) would go to court... and wait a few years, releasing no products in the meantime. In theory you're right, but in practice the courts just don't work well enough for it to happen.

Because it's a FRAND patent, the patent holder will have to grant a license, and the licensees will have to pay a fair rate. But if they can't agree to that, the courts have to settle it - in this case, years after products ship.

MS and Apple have both asked the courts to force a license agreement, and they've both sued motorola for not keeping their FRAND promises so far as I know (there are a few court cases on this coming up soon). Once the courts have decided an appropriate fee (and any appeals have happened), google will be paid in full.

On the other side, what google could have done is the same as what apple + MS have done: ask the courts to set a fair price. Why didn't they do that? Because they want to use these patents as leverage, so they can force MS + apple into a cross-licensing agreement and get access to MS + Apple's patented tech. They don't have strong enough patents to fight this battle without SEPs unfortunately, because apple + MS have simply been around a lot longer building up a war chest.

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Re: Bollocks !

"Following your suggestion, the licensees (apple + MS in this case) would go to court... and wait a few years, releasing no products in the meantime."

This may be how my post came across, but it not how it was meant.

What I was trying to say was that the potential licensee should take court action as soon as the negotiations over the license broke down. Yes, sell your product in the meantime, but start the court action immediately.

If you do, it is basically an extension to the licensing negotiations. If not, you are abandoning your attempt to obtain a license, and are wilfully infringing.

AFAIK Apple, in this case did not do so. I may be wrong.

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Anonymous Coward

Re: Bollocks !

I think they actually did - isn't that what the other court case that's in the news this week is about? MS certainly did. I guess it's difficult though to know when to sue in a case like this - presumably motorola didn't want it to go to court, as they would know what the risks were (the court forces a license agreement, they get some money but lose the 'offensive weapon' aspect of the patents). In that case, they would want to delay while at the same time attacking with their own offensive court battles, so they'd 'continue' negotiations rather than let them break down.

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Anonymous Coward

@Chris 19 - Re: Bollocks !

That's what you think. Actually, reading some court documents will show you exactly what the truth is. So far, Microsoft did not even try to negotiate a license and they went directly with lawsuits. As for Apple, they complained that 2.5% per device is exorbitant while they were asking 30 to 40 USD (in excess of 10%) per device for their patents. More than that, they offered to reduce the licensing fees by 80% if the devices are running Windows and have a physical keyboard. How's this for anti-competitive ?

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Stop

Re: Bollocks !

The problem is that Apple started by using perfectly legal, licensed parts (the 3G baseband chip) from companies like Qualcomm. Motorola then revoked Qualcomm's license, but ONLY for Apple. There are two big no-no's there. The first is that FRAND licenses may not be revoked. The second was this discriminated against Apple, and only Apple.

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Anonymous Coward

There's that word again

Reasonable

What is reasonable to one person may be considered unreasonable to another. At what point will Apple decide that what they are being asked to pay is reasonable? A dollar, 10 cents, a penny, free? Certainly whatever is decided will not be Fair - the other part of being a standard - as long as the US is in Apples pocket.

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Re: There's that word again

The important part of FRAND is not "reasonable", but "non-discriminatory". They have to charge the same rates to everyone. They can't try to get $10/phone from one company and charge 20 cents to another. That's what Motorola is trying to do here, and why the FTC is rightly cracking down on them.

Now if Motorola had always been licensing these patents out for $10/phone, and everyone else had been paying it for years, then it wouldn't matter whether Apple or Microsoft thought it was fair or reasonable, it would be considered to be so based on everyone else paying it without complainted, and would also be non-discriminatory because they'd be only be asked to pay exactly what everyone else was paying.

If Apple patented using green for the SMS icon and such a stupid patent was upheld, they could charge whatever they wanted for someone else to use it, or refuse to license it out any price. That's because there was no standards body that decided on icon standards where Apple submitted their green SMS patent to become a standard that everyone must follow.

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Holmes

Prior Art

Apple vs World

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Anonymous Coward

Hey?

If what Google is requesting is illegal or breaches competition laws, then why don't the judges that have granted those injunction take this into account before passing their judgement?

Don't they look into the consequences of their decisions?

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Anonymous Coward

Re: Hey?

No judges have granted an injunction - although it's come close in germany (where the laws on FRAND patents are way out of line compared to the rest of the world). It's possible this will still happen in Germany, but everywhere else google/motorola (and also samsung, who also tried this and are also under investigation) have failed every time they've tried to use standard essential patents.

There's also an issue in the US, where one of the trade organisations has the power to ban products based on patent violations, but doesn't have anything to do with anti-trust rules and therefore could ban a product even if it's an anti-trust violation.

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Anonymous Coward

Re: Hey?

So the FTC wants the US gov to sue Google for something that hasn't happened yet (Minority Report style)?

IANAL (obviously!) but this is bizarre

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Re: Don't they look into the consequences of their decisions?

Unfortunately in the US, the quality of the judge you get is like the a roulette wheel, only with all the colors from the over-sized box from Crayola.

Some judges will look at the law and the consequences of their decisions, other on how they feel on that particular day.

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Anonymous Coward

Re: Hey?

"So the FTC wants the US gov to sue Google for something that hasn't happened yet (Minority Report style)?"

It's not something that hasn't happened - it's something they've been trying vigorously to do but have simply failed at so far. It's like trying to kill somebody with an axe, but a nearby pair of policeman stop you... you're still going to be in a bunch of trouble even though you failed, and even if it was entirely justified because it was a politician :)

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Its simple and could be sorted in a few hours.

Ask Samsung and Motorola what value others are paying for these patents.

ie is it valued at 50 cents, $1 $01 etc when deals are done between themsleves and all those who already pay them or have a deal with them.

Then compare what they are asking MS / Apple to pay, if its close then its ok under frand, if not then they are guilty of breaking the agreements and should be punished.

Lets save some time and just do it that way rather and spending millions allowing MS & Apple to continue selling stuff without paying for patents or for them to get fair deals and get on with business.

As to Apple/MS deal it should be investigated by the FTC as it looks a bit like a cartel against Google and Android.

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Re: Its simple and could be sorted in a few hours.

From an admittedly poor memory Samsung (for example) wish to enter into some degree of cross licensing agreements for their FRAND items, something which is not unusual.

The problem with Apple is that Samsung put an offer to them and Apple said they didn't want to pay, there was no attempt at negotiation and they simply used the technology.

Also from memory you can NOT go straight to court regarding FRAND (I don't like the terms to I will sue) but you have to enter arbitration (but as I say my memory is poor)

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Devil

Common sense from Government level?

This could be the class action to bring a long overdue halt to all this non-FRAND or "conditional FRAND" nonsense

Google's Acquisition of Motorola put them in a position of power to hold quite a few U.S. and "foreign" tech companies at bay.

Sure, Google may bear the brunt of the actiion (if it actually happens) but more importantly it may just open the floodgates of common sense between ALL the tech companies..

Then, we the consumer will be the benefactories of this (possibly enforced) collaboration and losers will be the law firms who scoop shitloads of money through this..

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Anonymous Coward

Re: Common sense from Government level?

You could also mention that Google as opposed to Apple-Microsoft duo did not start any patent war, they are just counter-suing and they will gladly settle but this is not the goal of its opponents. They started looking to buy patents after the above mentioned duo slurped Nortel patents. Oh, and Apple publicly stated their goal of destroying Android in case you might ask for more arguments.

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WTF?

Let me guess, the FTC memebers all describe their home lives as "we're an Apple family"?

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Anonymous Coward

Then why is it OK when Apple does it?

Apple have repeatedly tried to get Samsung's products banned for alleged patent violations. Why the hell is it OK for Apple to do that, but somehow bad and wrong when Google does the exact same thing?

(Answer: The patent system is irredeemably corrupt and must be destroyed.)

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Stop

Re: Then why is it OK when Apple does it?

Correct answer: because the patents that Apple were suing over hadn't been committed as FRAND to any standard.

FRAND is meant to provide a level playing field so that anyone building a device that incorporates a standard can compete equally. Someone owning a FRAND patent is not supposed to be able to use it to block a competitor or charge them a higher amount to use it than the rest of the industry.

ORDINARY (non-FRAND) patents are a legal monopoly. Owners can chose to licence them or not. They can charge differing amounts to licensees as they like. However, because they are not part of a standard, competitors are free to find alternative solutions that don't infringe the patent. Google for example have engineered their way around Apple's bounce-back patent. This kind of thing is good for innovation and competition as the new solution may be better than the original.

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Anonymous Coward

Missing the Point

I'm not sure if it's me or everyone else here that is missing the point.

What google want is for MS and Apple, etc to leave android alone. It would however be difficult to go to court and sue Apple/MS for sueing HTC, Samsung et al, and enforcing their own patents against android. Therefore the only way for Google is to use the Patent system the way everyone else has been using it recently, as a tool of mutually assured destruction.

The situation has gotten so ridicules that Microsoft are making more money through extortion ( android royalties ), than they are from selling Windows Phone.

You sue android. Google sues you.

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Try switching a few letters!

[Google] Apple attempted to have some US imports of Microsoft and [Apple] others Android products barred from stores because, the company claimed, its key smartphone technology patents ....

Apple has over 800 patent claims against it. (Forbes)

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Stop

Re: Try switching a few letters!

And if Google can find non-FRAND encumbered patents with which to sue Apple then good luck to them. It's the fact that the patents that they ARE using they have promised NOT to use offensively as part of the FRAND commitment that is an issue.

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