back to article Hey, tech titans! Those smartmobe sales bans? Give it a rest. NOW

Companies can only ban the sales of rival products using patents essential to communications standards in rare and specific cases. That's the latest common-sense thinking from the US Justice Department and the US Patent Office. The two bodies have taken the unusual step of releasing a joint policy statement on standards- …

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WTF?

Does this mean they'll stop issuing patents for the blatantly obvious?

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No. Why would they stop doing that?

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Anonymous Coward

The critical shortfall here is it only talks about 'standards' and not the sort of dumb thing Apple have been using (e.g. swipe to unlock) which are so obviously the re-application of common methods (door bolt anyone?) that they should never been granted.

It is not just Apple, but they are currently the 800lb litigation gorilla for such things.

I can see the point of patent protection for genuinely new and useful inventions, but it is high time they (patent office, courts) were given powers to asses how much a patent is worth (e.g. swipe to unlock, even if upheld, is only one of thousands in a typical smart-phone, so maybe £0.02 per patent) and force a sensible financial settlement and stop there use as market bullying.

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Anonymous Coward

800lb??

Apple are precisely NOT the 800lb Gorilla!!!

AFAIK Apple has never filed suit against another company asserting FRAND patents that they own!

The 800lb gorillas are Moto/Google and Samsung, both of which are under serious investigation by authorities in multiple jurisdictions.

Apple are far more concerned with competitors copying their designs and patented software solutions, which they feel they are entitled to protect - Apple are no different from any other company in this respect. They want to stop "copycatting".

Googorola is the 800lg gorilla, and is trying to break the FRAND system because that is the MO of Googorola - when they don't like the rules, they throw their weight around and attempt to make the enforcement of the rules impossible, thus nullifying them - no fine can hurt them (so far) so its working. Google is evil.

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Anonymous Coward

Re: 800lb??

If you re-read the original post you'll see you have got the poster's point totally the wrong way round.

The comment about the '800lb gorilla' was in respect to the previous paragraph - where it specifically states their opinion that Apple are *not* using standards patents.

The relevant part: " talks about 'standards' and not the sort of dumb thing Apple have been using".

In other words, they said the opposite of what you accuse them of.

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g e
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Holmes

They can use SEP's without being sued

They are, however, expected to actually PAY for them.

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Is this a good thing though?

It seems to me that this will simply discourage companies from allowing their patents to be used in standards at all and end up making everything even more proprietary and fragmented. Patents in standards are a really bad idea but I'm not sure the alternatives are any better,

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Stop

Re: Is this a good thing though?

I think the reason it's a bad thing is that it allows Apple to sue whoever they like for rounded corners while merrily refusing to pay FRAND rates for legitimate patents.

How much did the judgement cost Tim Cook?[1] A crate of iPads?

[1] Actually, how much did this cost Paul O'Grady in his shiny new Tim Cook persona. There is no Tim Cook.

Also - in before Eadon says this is Microsoft's fault.

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Anonymous Coward

Re: Is this a good thing though?

"...merrily refusing to pay FRAND rates for legitimate patents."

None of these agreements or rulings would allow Apple to refuse paying for legitimately infringed patents. In fact, if Apple does refuse to pay, then Google can claim Apple is an unwilling licensee and seek an injunction.

Apple and Google may disagree on validity, infringement, or value; but that is why we have a court system to sort out those disagreements. In the end all companies who infringe valid patents, including Apple, should pay an appropriate amount for those patents.

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Standard pricing

Surely the pricing should be negotiated when the patent is standardised. At that point it should be decided the owner of the patent gets x pence for each device implementing the standard for the next y years falling to z pence per device after that.

The price is set, there's no negotiation after that point and anyone is free to use it at the prescribed cost. If they don't want to pay the price, they don't use the standard.

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Anonymous Coward

Re: Standard pricing

If they don't want to pay the price, they don't use the standard.

That's sort of what happened when Apple were seeming to want $1 per port for firewire licensing when everyone else seemed to think 25c per unit (regardless of number of actual ports) was "fair and reasonable". Result was most of the rest got together and decided to put their weight behind USB and, as they say, the rest was history.

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@Anon 13:59

That's fine in the case of firewire, but points out an important difference in types of standard.

Some standards are created as proprietary technology and then submitted to a standards body, at which point they become subject to FRAND licensing. This is how Firewire was born, it became a standard only after it was presented to the IEEE (and probably tweaked a bit) and dubbed IEEE1394.

Other standards are initiated directly by a standards body, creating a true industry standard. LTE and h.264 are good examples of this. They were born from the ITU and MPEG-LA, respectively. They get together a bunch of smart guys to figure out the new standard, but the price for a company's smart guys having a seat at that table is the requirement that any patents they hold that become part of the eventual standard become subject to FRAND licensing.

It was easy for PC makers to refuse to use Firewire, because it was just one competing standard that did somewhat the same thing. When the PC makers decided to go with USB instead, they didn't have to worry that every single consumer product in the world would be using Firewire and they'd be left unable to connect digital cameras, external storage, etc.

This is definitely not the case for standards like LTE and h.264. Since they were born of a standards organization as the next generation of a previous widely adopted standard, there's no way that say Nokia could have said "sorry, we think the LTE licensing is too expensive, so we're going to use China's TD-LTE standard in all our phones. That couldn't work, because telcos follow ITU - they're legally required to do so in many countries.

You can sell a computer that doesn't do Firewire in a world where device makers are allowed to make devices compatible with any standard they want - and even if they prefer Firewire they'll support USB when there are hundreds of millions of PCs sold in a year with USB ports. The telcos however don't base their decisions on what type of 4G technology to deploy based on what technology phones are out there. They're going to install LTE, and if your phone doesn't support it then you're SOL, making it hard for phone OEMs to "veto" a standard in the same way that PC OEMs did with Firewire.

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Meh

And there's the problem

"Of course, while their opinions may carry some weight with judges and lawmakers, no one actually has to obey the statement as it's not legally binding."

Neither Apple or Samsung or anyone else will play nice unless they are legally forced to. "Why the hell should we when all these other bastards aren't?"

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Re: And there's the problem

"Neither Apple or Samsung or anyone else will play nice unless they are legally forced to. 'Why the hell should we when all these other bastards aren't?' "

That frankly doesn't matter. The advisory is for Judges when making rulings. Tech firms can indeed still *ask* for products to be banned, but the Judge now has good reason to say "no, according to guidelines we shouldn't be doing that".

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rare and specific cases

...where the specifics are 'unwillingness to negotiate a licence' and 'rare' is more descriptive of how often SEP owners need to resort to seeking bans than anything. The most frequent (ab)user of ITC fast track bans in mobile is a company that owns no SEPs!

If we needed proof that lobbying buys regulatory opinion this is it. With luck this will have no tangible effect, the known attempts to get bans on SEPs all trigger the 'rare and specific' conditions. It's just a specific pair of SEP light companies that have nothing to lose by destroying the rights of SEP holders, lobbying for commercial advantage. Unfortunately it's a win-win for them, stop enforcement they win, discourage involvement in SEPs damages public standards that compete with their proprietary ones and they win.

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FAIL

If the DoJ and USPTO are fed up...

...then maybe they should put their own houses in order and stop allowing stupid patents and allowing the enforcement of stupid patents. This may actually lead to a positive change, but I doubt it.

It's hard to feel sympathy for them when the design for the rod they have made for their own backs is probably patented too...

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WTF?

the LATEST common sense thinking ???

That is the ONLY common sense that we've seen from the US Patent Office. A lot of the current behavior is CAUSED by their cretinous stupidity.

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Pint

Re: the LATEST common sense thinking ???

I agree on that, seems to me, in addition, that standards should include no patents, that is, if you want your great ideas to become a standard then forget about your patents, else try to have some market share of your own. Optimist once again. The glass is half full or half empty as usual.

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Anonymous Coward

Re: the LATEST common sense thinking ???

Call me opportunistic, but if I come up with a great idea that could benefit the world by being incorporated into an industry standard, is it asking too much for "fair" compensation for said idea? No one will contribute great technology to industry standards if there is no incentive to do so.

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Devil

Thus ends progress

Without protection for SEP there will be no SEP. Nor standards either. Everybody gets to go back to the bad old way of making proprietary stuff that doesn't work with anybody else's stuff.

Oh well. It was nice while it lasted.

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Alternatively, some companies might just allow interoperability with open & free standards to build up a supporting 'ecosystem' around some new product, rather than trying to gouge others for all they can?

Oh I don't know, like TCP/IP?

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Or in lighting control - DMX, RDM, sACN and ACN

All with no patents, you only pay for a copy of the actual standard document(s).

There are a lot of industries that have managed to produce patent-free interoperability standards, to the benefit of all the players in the market.

Any particular implementation is copyright, and some companies have better implementations than others.

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Boffin

I think

it has more to do with unfair prevention of trade

Eg Company A and Company B make smartphones, they compete with each other to get the best on the shelves in the run up to christmas

Now Company A takes Company B to court for patent infringement and gets Company B's smartphones banned from the shelves in September, In January Company B gets the ban overturned on appeal... but its too late... its missed the christmas shopping period plus Company A has had its products on sale for 4 months competition free.

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Re: I think

And if company B was in-the-wrong, then what you just described is right but there is no 'unfair prevention of trade;' it is a very necessary prevention of trade.

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Re: I think

But what if company A is proved to be in the wrong? Company A should be held liable for multi-million dollar losses, as unlike the racketeering done by the MPAA/RIAA, such an injunction actually hurts real sales on company B. Penalties should be incredibly steep, coupled with company A losing the patents in question if they have gone for the ITC fast-track as to discourage abuse of this.

And it should be extended to cases where the patents are done over trivial stupidities...

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