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back to article Apple's anti-Googorola patent lawsuit tossed by US court

The Wisconsin US District Court was scheduled to have begun hearing Apple's patent lawsuit against Google's Motorola Mobility division on Monday afternoon, but don't bother trying to track down a live blog: just hours before that trial was set to start, the judge dismissed it. "We're pleased that the court has dismissed Apple's …

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Stop

Argh!

STOP QUOTING AND LINKING TO FLORIAN MUELLER!!!!

He's a paid shill of at the very least Oracle & Microsoft. Try quoting someone impartial that knows what they are talking about.

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Anonymous Coward

Re: Argh!

Mueller has a serious problem with Google/Motorola yet the Register (or some of its journalists) seem to take his version of events as the total and utter truth...

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Anonymous Coward

Re: Argh!

Geez, hard linking as well which adds to his pagerank. Even the BBC don't quote from Foss Patents any more unless they are a really green journalist.

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Re: Argh!

"STOP QUOTING AND LINKING TO FLORIAN MUELLER!!!!"

And also stop linking to and quoting anyone on the Google Shills list that they gave to the court recently, and also stop linking to and quoting anyone who works for any organization that gets Google's shilling too, right?

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Holmes

Re: Argh!

No that's not necessary. Delisting FLOSSMUELLER is enough.

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Re: Argh!

Can I just take this chance to say I really, really, really, really despise Apple and can't wait until karma hits them hard. Complete assholes!!

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Happy

Re: Argh!

Didn't you know, since the clandestine meetings where it was all decided for us the BBC only has Green journalists, anyone saying anything else is burned at the stake for witchcraft and heresy.

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Anonymous Coward

Re: Argh!

Would you have somebody in mind? Maybe Groklaw?

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Anonymous Coward

Re: Argh!

> Would you have somebody in mind? Maybe Groklaw?

How about a reputable source of information, say, for example, Reuters:

http://www.reuters.com/article/2012/11/05/net-us-google-patent-idUSBRE8A419M20121105

I haven't checked if Groklaw has commented on this yet, or not. Absent Groklaw, I'd rather quote Reuters than Florian Mueller.

Just sayin'. Reputation and all that.

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Re: Argh!

Nice reuters link, AC. It sheds a bit more light on the subject.

"in a court filing last week, Apple argued that it would not consider itself bound by Crabb's rate if it exceeded $1 per Apple phone."

So partly the Judge was also saying, What's that Apple? No, you got that wrong, it's fuck you!'

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Re: Argh!

Everybody is paid by someone. Instead of flaming others, if you have an objection to the use of some material provide a reasonable explanation and educate others. I'd appreciate it. Apart from a clearly visceral dislike of a specific individual it's not clear why you feel the article is impacted. Is there some factual aspect to the account of the court proceeding that are incorrect or misleading? If so, you must have access to relevant information so why not include it in your post to provide 'balance'?

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Re: Argh!

@Sirius

No, not every 'journalist' is paid to put forward a specific agenda. Mueller is a self-aggrandising shill for hire, he has a history of writing biased nonsense and spamming his paid opinions all over the place.

He survives on articles quoting him like this, it is his oxygen, but we would all be better off without his kind in the public eye. Look him up. Look up some of the 'conversations' he's engaged in in places like Slashdot and lwn, where he posts over and over and over again until confronted with 'who's paying you Florian?', which usually seems to shut him up.

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@Sirius

Further to Davids post: Florian has posted non-stop about this case for quite some time now, almost exclusively just cheerleading for Apple with precious little accurate factual content. The bias has been unmissable and extreme. He's firmly stuck in a Jobsian reality field (which looks remarkably like the Ellison distortion field in Oracle v Google and the astonishing SCO v anyone with a pulse affair).

Along the way he made a lot of predictions and analysis, *all* of which turned out to be wrong. Posting a bare summary is unusual for him though, in previous defeats for his patrons (SCO,Oracle and who knows how many he hasn't been outed working for) Florian has 'explained' why the loss wasn't actually a loss OR that the judge was simply wrong OR some other bullshit.

Put simply, Florian is no expert at anything but feeding PR to lazy journalists and remarkably good at finding rich clients to 'consult' for in the middle of PR wars.

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Mushroom

Is it just me?

Or is Apple getting bitchslapped from every direction?

Maybe going thermonuclear wasn't such a good idea.....

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Holmes

Re: Is it just me?

Ian Gillan wrote a song about htat...

Mutually Assured Destruction

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Thumb Up

It's not just you.

You are correct. Apple are losing left, right and centre(er?). Losing Court cases. Losing market share. Losing respect.

Meanwhile, Android is winning. Winning market share. Winning Court cases. Winning the hearts and minds of good people all over the world.

When Samsung wins its US appeal - thereby overturning the demonic jury decision - it will be the final nail in the coffin of Apple's misguided Jihad.

With Apple fast gaining a reputation for not innovating, Apple will ultimately lose this war of their own making and the world will revert back to a peaceful place with Google reigning supreme and Microsoft cleaning the toilets.

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Holmes

Re: Is it just me?

"Or is Apple getting bitchslapped from every direction?"

They've lost a few, won a few. In this legal warfare, Apple (sitting on around $100 billion of cash) reason that they can afford to pay the lawyer more so than most other companies. Google "only" has $40 billion, but that's plenty enough to stay in the game. But what Apple can do by this approach is to frighten off the small fry, and the financially weak, and that's a win for them. People like RIM will have to worry about BB10 and future devices - "are we at risk of being sued by Apple?" will be a bigger concern than "does it work?". Apple also have the corporate management resource to do this. Other cost constrained companies don't have the management overhead to control multi-billion dollar legal budgets, or to develop offensive strategies based on lawyers as troops.

Where Apple is losing from this, now that's more interesting, because it's not the legal fees. There's recently been the first ever drop in the proportion of iPhone owners intending to have an iPhone next time round - still very high levels of satisfaction that anybody else would envy, but perhaps a tipping point. Fanbois aside, nobody is really impressed with the iPhone5. They've stumbled with IOS6 and with the maps fiasco. They've been caught out "borrowing without permission" with regard to Swiss Railways. The latest iPad isn't really much of an advance on the last one. The walled garden is starting to grate with some (but not all users). And throwing their weight around, and their childish demeanour is starting to damage their reputation with customers.

When you think what Apple is good at, it's not patent trolling or litigation - there's companies who do that for a living and are good at it. It is good at product development of shiny, innovative, polished yet easy to use products. Or rather, it was good at these things under the great dictator. Under Cook there's been nothing that really looks novel, and they now spend more on lawyers than on product development. With progressively declining reasons to upgrade generation on generation, their high end, high margin market is at risk of slowing, unless emerging markets offset a flattening market in the developed world (and even then, that merely buys a couple of years). I think Apple's position as the world's most valuable company looks like a high water moment, from which the tide is going to go out, unless they can innovate something pretty spectacular, but with the boardroom intent on keeping lawyers employed rather than technologists and product developers, what are the chances?

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Re: Winning the hearts and minds of good people all over the world.

No, they're not. They're winning the hearts and minds of those stupid enough to give their hearts and minds to a mega advertising corporation. Google really don't give a fuck as long as the cash keeps coming in, believe it or not...

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Re: Winning the hearts and minds of good people all over the world.

How is this different from any other large company. Keeping the cash rolling in is what they are there for.

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Facepalm

Re: How is this different from any other large company.

It's not, and I never claimed it was. I'm not the deluded internet shill going on about how "good" people are giving their hearts and minds to Google. I'm saying that Google don't do things for the benefit of humanity, they are the same as any other large company.

Is that clear now?

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Gimp

@sabroni

Gotcha!

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Re: Is it just me?

Not every direction. I've been applauding it when it has happened. They only get bitchslapped when one of their lawyers is arrogant enough to offend the presiding judge. If they offend the other lawyer or even the law they mostly get away with it. A couple of British judges being the notable exception to them generally getting away with it.

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Re: When you think what Apple is good at

Apple have never been good at anything. Jobs and Wozniak were good at product development. When Woz left, they lost a bit of heft, but Jobs was able to carry on. When Jobs left the first time the company nearly went under. Jobs brought them back from the brink, but not they have the same problem they had before. Only this time, Jobs isn't available to save them. Given that, even $100 billion probably isn't enough to keep them going. Sooner or later some corporate raider will say to others: "Apple isn't making anything new, revenue and profits are going down; maybe the best option is to buy them, distribute the cash to the share holders, and dump the loser." And if all those really are true, shareholders would be foolish not to follow the raider's lead.

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Doh! Should have been

"now they have the same problem they had before."

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@sabroni

Eh?

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Holmes

Kerching!

"And if you have a patent, every move by your competition looks like a lawsuit."

Totally, completely wrong saying.

Here we rather have the case of the legal caste strategically leaving loaded shotguns lying around to be found by the ego-blowupdolls and retarded babbys from the management layers, who then proceed to shoot each others and their own feet off.

Each shot, however, transforms overall value (for shareholders and the economy-at-large) magically into cashouts for the legal caste.

"Merchants of death", indeed.

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I am as ignorant as ever on this subject...

But I am getting rather sick of Corporation Apple and their patent wars.

While millions move on, never knowing nor ceasing in their progress, or caring one jot, that the company that sold them (fleeced them) their marvelous magical devices.... has been into or gotten kicked out of one more court case.

The people who run Corporation Apple, and the crap they get up too, are starting to be as news worthy as a rather stale box of cats piss and shit, in a rather small room.

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Re: I am as ignorant as ever on this subject...

It's really sad to be ignorant on subjects, but still form such strong opinions about them, especially driven by articles like these which misrepresent most of the facts.

This case boils down to:

1)Motorola sued Apple

2)Apple sued Motorola back

3)Motorola sues Apple again this time with patents related to 3G standards which are meant to be FRAND - fair and reasonable - (recorded as such by the ETSI)

4)Apple sued Motorola claiming the licensing conditions Motorola offered weren't compatible with FRAND and asked the court to set a limit on the costs.

5) Judge throws that case, leaving Apple and Motorola to agree on licensing terms for those patents some other way, possibly at the price Motorola decides to sell them

So there's crap on all sides and yet you move on never knowing about it (or apparently caring to know either)

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Anonymous Coward

Re: I am as ignorant as ever on this subject...

You forgot the bit where apple refused to negotiate license terms at all. You also forgot the bit where Apple told the judge that they expected the judge to set a limit of $1 or less per device and if she didn't they would ignore the decision of the court.

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Anonymous Coward

Re: I am as ignorant as ever on this subject...

You forgot:

0.5) Apple used Motorola patented technology without licensing.

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Coat

Corrections

"And so ends the latest phase of Case #3:10-cv-00661-bbc Apple, Inc. v. Motorola, Inc. et al, which began on October 29, 2010 when Apple filed suit against Motorola Mobility for patent infringement"

It actually began when Motorola sued Apple (first) for infringing 18 Motorola patents, on October 6, 2010.

This case wasn't a "patent lawsuit" either. It was a patent licensing lawsuit over claims that Motorola was committing FRAND abuse when licensing their standards essential patents.

Considering the anti-patent quotes from Google in this article it's odd that it doesn't mention anywhere that this was about a dispute over fair pay for Motorola's FRAND patents. The outcome does the inverse, it gives more power to Google/Motorola to demand more money for their patents.

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Facepalm

Re: Corrections

Can you explain the concept of "FRAND abuse"? I keep seeing the term bandied about by Microsoft and Apple, but they don't really take the time to explain how opening negotiatins for a license on FRAND patents (that are already bring infringed) constitutes abuse.

Unless I am mistaken and FRAND means 'free' but that wasn't the impression I got from the rules set out by standards agencies.

Fair and Reasonable pricing means if I agree to sell a car for £2000 to one customer, I must offer the same price to another customer. What it does not mean is that the 2nd customer gets to order me to sell the car for £500 because that's what he thinks is fair.

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Holmes

Re: Corrections

The FRAND abuse claim started when Google/Motorola asked for 2.25% of the sale price of the devices using their patent. This amount was considered an unusually high demand for such patents since other users are said to pay less, unlike your car example.

When Apple and Microsoft refused to those conditions Motorola responded by asking the International Trade Commission for immediate injunctions to stop the sales of the devices. Again this is not considered to be proper procedure for standards essential patents, you can't have industry standards based on "my way or the highway"- style of licensing.

Google/Motorola must know this was a dick move, since they dropped their injunction request with the ITC after hearing the FTC was considering action against it.

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Facepalm

Re: Corrections

IMHO FRAND abuse is when "intellectual property" is incorporated into an "essential" international Standard.

If it relies on a patent, it should not be a Standard - Or, if it is accepted by the standards body, the licence must be Free (it is the Reasonable and non-discriminatory) part that causes problems.

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Anonymous Coward

Re: Corrections

"When Apple and Microsoft refused to those conditions..."

This is where it all goes wrong. Standards are created, patentable material is incorporated on the condition that the holder will licence the patent and also will do it in a reasonable and non-non-discriminatory way.

So you want to build a device which uses that standard - to do that you have full access to the standard specifications and all the patent holders whose technology needs to be patented.

BEFORE you sell the device you contact the patent holder (or consortium covering all holders) and negotiate the price - or find out what the agreed rate is. You then negotiate or pay the holder for a licence (negotiation often includes cross licensing so as not to pay a license fee at all). THEN you build or sell your device. If after negotiation you feel that the party is being unreasonable or discriminatory then you can take it to arbitration and find a resolution before you start selling your goods (you'll have plenty of time as you will have decided to incorporate the standard right at the beginning of a product's lifecycle)

What you shouldn't do:

Build a device and sell it wilfully infringing patents that are impossible to overlook as they are part of the standard you are implementing. Not make any effort to negotiate a licence. When the licensor comes knocking asking for a certain fee or cross-licensing agreement, refuse to negotiate and go to court asking a judge to circumvent due-process and restrict the licensor to an arbitrary rate and tell the judge that if they decide this rate is actually too low then you'll ignore them anyway and try to find a different judge who will allow them that rate.

This second way is a complete abuse of the standards system, the patents system and the courts system. It is an unbelievable arrogance on behalf of the company. Any goodwill previously shown by the court system could understandably be lost by these actions. Whatever you think about standards, patents in standards etc. it is plain wrong to blatantly abuse due-process and the law.

Maybe standards organisations should agree to buy a patent off the holders for a fixed fee which will paid for by "selling the standard" to companies who use it in the future either at a fixed price or through royalties. One thing to remember though is that if a standard has a piece of patented tech in it then it is a legitimate innovation that was so good that it became part of a standard that beat all others - it is not a frivolous and obvious piece of eye-candy.

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Anonymous Coward

Re: Corrections

I guess you don't understand the concept of negotiation...

I start with 2.25%

You counter back with 0.5%.

I say how about 1.75 with reciprocal licensing of your FRAND patents.

You say say how about 1.25% plus cross licensing.

We handshake.

That process did not happen with Apple who basically threw a strop at the first step and then went and used Motorola's FRAND patents without paying a cent.. basically doing a "Our way or the Highway" move.

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Black Helicopters

Re: Corrections

> One thing to remember though is that if a standard has a piece of patented tech in it then it is a legitimate innovation that was so good that it became part of a standard that beat all others - it is not a frivolous and obvious piece of eye-candy.

Excellent post, but the above is not always true. A lot of the time a SEP is inserted via political manoeuvrings in the working groups that, on the face of it, are evaluating the "best" solution but often have to come to compromises between different companies. Part of the objectives of each member of 3GPP is to get as much of their patented stuff into the standard, sometimes to the detriment of the standard itself (this is much rarer!).

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Anonymous Coward

Re: Corrections

"IMHO FRAND abuse is when "intellectual property" is incorporated into an "essential" international Standard.

The everything must be free, unless it's against Google fAndroids are down-voting again.

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Re: This amount was considered an unusually high

Who by? Obviously the apple/ms but who else. There are no public details of what they charged other people. Is 2.75% really a high price for technology that their phones are bricks without? I don't know, I have no idea how much this tech cost to research and develop and I'm pretty sure no one else here does, if they did I doubt they can say.

But the real issue is, if they think a price is too high then negotiation is the key to resolving that. Apple are used to dictating prices to the their suppliers but for this technology there is no other supplier to trade each other off against and they are acting like spoiled children.

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Holmes

The great fresh smell

Of triple damages for willful infringement back dated to forever.

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Anonymous Coward

Re: Corrections

So if a company spends a lot of money, time and research creating a major innovation. his is so good and successful that they feel it should be a standard.

Should they be forced to hand over that patent for free?

Should everyone be allowed to ignore their patent?

Should that company be given an option to give up their patent for free, in which case they would say no and then the standard would either be sub-standard (sorry) or their would be a battle between propriety and ETSI/ISO standards?

Maybe all standards should be abandoned and the market should battle it out a-la Betamax & VHS?

No-one really wants patent encumbered standards, but standards and technology wouldn't be where it is today without them unfortunately.

Obligatory xkcd post > http://xkcd.com/927/

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Anonymous Coward

Re: Corrections

If this is the case, doesn't that mean that Apple now owe googarola fees on every single handset they've sold with 3G in it.

I'm assuming (what with their marketing claims re: exactly how successful they are (snigger)) this will potentially see a very large transfer of cash directly to google.

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Anonymous Coward

@Nine Circles - Re: Corrections

I'll help you with it.

Even though Apple and Microsoft (nice pair of nice people don't you think ?) believed that 2.5% is too high, they didn't bothered to negotiate. They just went on with the infringement and complained to ITC without ever bothering to make a counter-offer. When things went wrong (or right, depending on whose side you are) Apple said they will offer 1$ and will discard any royalty that might be set by the court where they were asking a royalty to be set. As the judge said, why bother with a trial then ?

You should spend some more time reading the court documents of these patent battles. It's an eye opening tale of how the two paired to destroy Android, and Google as an added bonus.

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Re: BEFORE you sell the device you contact the patent holder

AC:"BEFORE you sell the device you contact the patent holder (or consortium covering all holders) and negotiate the price - or find out what the agreed rate is"

FRAND is a guarantee that won't be refused a licence and you won't be penalised *provided* you negotiate in good faith. One of the implications is you don't need to get the licence up front, you can wait till you actually need it, which is when you're ready to ship product.

Apple got themselves into massive trouble here on that 'good faith' aspect. With the case about to get tossed because they failed to even attempt negotiation, they fabricated an illusory negotiation - and got caught. If their next offer is in bad faith, by refusing to backdate, insisting on a maximum, insisting on cross licences Motorola don't need, they risk losing their rights under FRAND.

My guess is Apple are now on their last chance to pay up and stop complaining to courts, next step is injunctions and triple damages for wilful infringement, all things FRAND would have protected them from. Apple want to abuse the FRAND process to escape infringement charges but knowing they have nothing to throw in the cross licence pot can't afford to actually accept FRAND. Couldn't have happened to more deserving scumbags.

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Anonymous Coward

Re: BEFORE you sell the device you contact the patent holder

"...when you're ready to ship product" is "BEFORE you sell the device ..." ?

Same thing, you don't sell your device and wait for someone to come knocking. The fact that the FRAND will usually be a royalty payment means you can negotiate the rate whenever you want as you'll start paying when you ship.

However for any company it would be extremely prudent to find out how much you are likely to be liable for as early as possible, The closer you get to launch the more it affects your projections and profit margins and also puts you in a weaker negotiating position. Any project of reasonable size should have all possible costs assessed and any unknown costs such as currency fluctuations should be managed by risk processes.

A known patent licensing cost, I would not expect to have in the risk section.

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Re: Corrections

@Tim99

"If it relies on a patent, it should not be a Standard - Or, if it is accepted by the standards body, the licence must be Free"

Just what planet are you living on? What you are saying is that company should spend significant sums of money and R&D to develop technology that is so good and innovative that the worlds standards bodies agree to use it, and then get paid nothing in return?

How long do you think it will take for companies who do real innovation and real development in electronics and telecommunications, to turn round and refuse to allow any of their technology to be used in standards, as they will lose money on it? Once that happens, all those competing companies will develop their own methods of performing common tasks, methods that inevitably will not interoperate. Then all standards will collapse and nothing will work with equipment from other manufacturers. The likely outcome of this will be collusion by a small number of big players, who will group together to form their own "standards" body. If that happens, they will be in a position to charge as much as they want for others to use their technology.

The only good prospect that would come out of that is that it is unlikely Apple would be asked to join the club, leaving them sitting out from the good stuff, getting sued if they try to use the technology and eventually giving up phone manufacture altogether.

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I don't see an appeal as likely.

This was a minor legal skirmish, not the main battle.

Apple was trying to get the courts to rule that Motogoogle must offer a Fair and Reasonable rate, rather than have to enter negotiations. Their legal approach was to argue for "specific performance" on contracts between Motorola and the standards organization -- a contract that Apple was not a party to.

There were several flaws with this argument. The biggest one was that there was a negotiation and arbitration process indirectly included as part of those contracts, and Apple didn't even attempt to use it. Apple wanted the court to ignore that part, and even go so far as to set the rate.

"With prejudice" just means they'll need to make a token effort at following the negotiation process before refiling a slightly different lawsuit. Which (I believe) they have already started. The sole impact is that they lost this lawsuit, and may be held responsible for court costs or even fees.

Why was this so important to Apple (and also to Microsoft)? Because they had been using the patents without being part of the patent pool (the way essentially all other industry players are) or paying royalties. And any arbitration would certainly include their failure to previously pay as a factor in setting the rate. If they could get the courts to instead force a rate that matched what the other members of the standard organization were paying (an "insider" rate), they would pay much less. Oh, and wouldn't risk an injunction for brazenly selling products incorporating the patents without having a license.

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Hmmm, why would you think the "insider" rate was any different to what they offered Apple? If it was, then under abitration Apple could claim it wasn't being offered under FRAND (non-descriminatory).

Apple seem to just not want to pay, as they would *only* be paying out. The majority of other phone companies have patents involved in the standard - they don't pay each other the full whack as the costs are balanced across the companies patent portfolio.

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You're wrong on a couple of counts here

They are offering a VERY different rate to Apple. Everyone else is apparently paying 2.25% of the cost of the chip implementing 3G, or something close to that figure. Certainly no one else is paying a percentage of the device's sales price. No one has ever licensed standard telecom patents in such a manner before. Motorola specifically cancelled their license with Qualcomm (who was/is providing Apple chips that implement 3G) for any chips sold to Apple. Then they came to Apple demanding 2.25% of the sales price of the phone itself. As others have pointed out, if you implemented 3G in a Boeing 787, similar logic would try to claim 2.25% of the sales of each airplane. This is neither fair (the 'F' in FRAND) and while some may consider it reasonable (the 'R') it is most definitely not non-discriminatory (the 'ND') They didn't do this for others who use Qualcomm chips, such as Samsung, who uses them in some of it's phones (mostly those sold in the US)

Also, Apple would not only be paying out. People seem to forget that Apple bought up Nortel's patent portfolio a while back, and while I'm not sure how many 3G patents it includes, it must include some. More importantly, it includes 5% of the ENTIRE patent pool for LTE. So if Google wants to try to screw Apple over this, as they seem to want to do, Apple could do the same to all the Android vendors and pull the LTE licenses to Qualcomm and anyone else producing chips implementing LTE, and make them pay Apple 2.25% of the phone's cost for the LTE patents, without which they cannot offer LTE. Even with Android phones selling for less on average, their 5x greater sales would end up with more money going Apple's way than Google's. If it ever comes to that, it would be a terrible outcome for everyone, because plenty of patent trolls who produce no products own FRAND licenses, and this would mean open season for them to charge crazy prices for a single patent that's required to implement a standard such as 3G, LTE, h.264 or whatever.

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Anonymous Coward

Re: You're wrong on a couple of counts here

Motorola has a couple of % and Samsung has 12%. 5% of the ENTIRE patent pool isn't much to write home about...

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