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Motorola Mobility's global smartphone market share shrank faster than usual yesterday when the mobe maker pulled all but one of its products from Germany. Patent infringement lawsuits launched by Apple and Microsoft against Moto have demanded a sales ban on the Google-owned handset biz's Android tablets and smartphones in …


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  1. Anonymous Coward
    Anonymous Coward

    Interesting how M$ worms its way out of a ban due to a US court, but how there is no such luck for Motorola. I guess Google needs to figure out who they pay in the US to give them such protection in the future.

    1. Anonymous Coward
      Anonymous Coward

      HTC and Samsung already pay Microsoft for use of the patent, it's Moto who haven't.

      The legal precedent is there, so Moto/Google need to pay up.

      1. Carl


        Mate, WHAT are you on about.

        Microsoft shaking dow 2 mobe manufacturers does not make it a "legal precedent" any more than it would Al Capone shaking down 2 restaurants and using that as justification to shake down the third.

    2. RICHTO Silver badge

      The Motorola patend is a FRAND one essential to standard tech. so Motorola are obliged to license it at a reasonable rate, which they have so far failed to do....

      1. Chris Fox

        Obligation on Microsoft to negotiate a licence

        Under the (F)RAND terms, Motorola is obliged to *offer* a licence. And they have done. Microsoft, in turn, is under an obligation to enter into negotiations. And they refuse to do so. Motorola has therefore satisfied its FRAND obligations, and Microsoft have not. Microsoft lawyers claim the FRAND terms are a contract, when in reality they are a commitment of negotiate a contract. If they really were a contract, then Microsoft, not Motorola, would be in breach for refusing to negotiate a price with Motorola.

        Meanwhile Microsoft, Nokia and friends set up shell companies so that they can split standards-essential patent portfolios. This has effectively allowed Nokia, and others, to break commitments to cap total unit-cost FRAND licence fees for the standard-essential patents, commitments that were made as part of the standard setting process.

        Microsoft and Nokia, et al. are thus exploiting loopholes in FRAND undertakings, and using corporate socket-puppets to extort potentially unlimited royalties from others, for patents that were supposed to be fee-capped, while refusing to pay FRAND licence fees themselves.

        This is an issue that standards bodies really need to address; it's not just software-libre that has a problem with all these FRAND-based "open" standards --- an approach to standardisation which appear to be a fundamentally flawed fix necessitated by a basically broken patent system.

        1. a_been

          Re: Obligation on Microsoft to negotiate a licence

          Motorola must offer FRAND terms, it can't offer whatever it likes and say "you have X amount of time to negotiate" which is what it has done. That's why Motorola has lost every recent court case involving FRAND patents and is being investigated in both the EU and USA.

          Also it is Google using Motorola to "extort potentially unlimited royalties from others, for patents that were supposed to be fee-capped". Microsoft hasn't refuced to pay a FRAND licence fee because Motorola hasn't offered a FRAND licence.

          Motorola has a legal undertaking to offer a FRAND licence, not just any licence and say "now we negotiate". There is no fundamentally problem with FRAND, it's worked very well in the IT world for over 3 decades. There is a problem with companies like Motorola & Rambus trying to game the system and how long it takes the courts to force them to meet their obligations, however as more cases are decided against FRAND abusers it get harder for them to game the system.

          1. Anonymous Coward
            Anonymous Coward

            Re: Obligation on Microsoft to negotiate a licence

            @a_been, instead of sounding clueless, get correctly informed about FRAND issues. You are just spewing Apple's incorrect line.


        2. Anonymous Coward
          Anonymous Coward

          Re: Obligation on Microsoft to negotiate a licence

          "Under the (F)RAND terms..."

          There is no legal definition of "FRAND" and that is the crux of the issue.

          Motorola argues that only the final value needs to be "reasonable" and Microsoft argues that the whole process is "unreasonable" if negotiation starts from an unreasonable offer. Both are understandable positions for their respective organizations.

          In the end, either regulators, courts, or standard-setting organizations will have to legally define FRAND. Seeing as it usually takes several years to develop and release new standards, and it appears the regulators are still hoping for the industry to sort this out themselves, it seems most likely that the courts will define FRAND.

          1. Anonymous Coward
            Anonymous Coward

            Re: Obligation on Microsoft to negotiate a licence

            Read the Groklaw post, which quotes a lot of what the ITC judge concluded. The ITC is actually quite clear about FRAND. If M$ (or Apple) doesn't like how much someone is trying to charge, they should negotiate first, next there is mediation under ETSI. Did this happen? No. What a surprise that M$ and Apple want to avoid this route.

        3. Mike Dimmick

          Microsoft patent is not FRAND

          My understanding is that the Microsoft patent at issue is the one on the Windows 95 Common Controls library. ListView, TreeView, spinner controls, date-time picker, etc. This is not part of any international standard and therefore is not subject to FRAND, even if you think (as I do) that it is a ridiculous patent.

          Moving their patents to a subsidiary company is a tax dodge, not a royalties dodge. Again, I don't agree with it, but the aim is simply to move that revenue to a tax haven and play games with transfer mispricing to artificially increase the subsidiary's revenue, reducing the tax paid in the US.

          As for licensing Motorola's H.264 patents, Microsoft does pay and participate in the MPEG-LA patent pool which pays many more patent holders, holding many more patents, at tiny fractions of the price Motorola want to charge.

    3. Anonymous Coward
      Anonymous Coward

      Yep, Microsoft went crying to the US government about the Xbox360 getting pulled from every store in Germany (something that barely got a mention by the press, who are clearly afraid of Microsoft), and the US Govement flexed it's muscles with the German government and got it overturned...

  2. Anonymous Coward
    Anonymous Coward

    I blame Apple!

    I blame Steve Jobs as well! It's all his fault!

  3. toadwarrior
    Thumb Up


    Motorola tried getting them banned and it looks like it was thrown back in their face. I hope they like it.

  4. naive

    Don Corleone would be proud

    Racketeering, blackmail and threats seem to have become commonplace. Apple wants to ban everything more modern than a 1996 nokia and costing less than $600, M$ wants to have $30 in licenses from everyone using a mobile phone. Google gives away Android for free.

    My guess is that M$ and Apple don't like "free" things, and want to tax everyone using post stone-age technology, because they filed patents for everything invented since humanity can write.

    It would be interesting to know why "Rounded Corners" on a Samsung 10" Pad can not be brought under FRAND, and a low level communication protocols are to be granted under FRAND to M$.

    1. Ben Tasker Silver badge

      Re: Don Corleone would be proud

      It would be interesting to know why "Rounded Corners" on a Samsung 10" Pad can not be brought under FRAND, and a low level communication protocols are to be granted under FRAND to M$.

      Because you can implement a pad without the rounded corners, but you can't implement a compatible communications device without those protocols.

      Of course, it'd be stupid to give a device sharp corners, but that's more a case of whether something so trivial and obvious should be permitted a patent at all.

  5. wowfood

    What I never got

    Great new technology, amazing, could redefine everything we do, millions in research. You gotta license it for pennies because we decided it's now a standard.

    Something fairly simple, not ever patent worthy really, $20 per device.

    How is this fair? Honestly I think they should be setting FRAND patents at a set price, or hell I don't know, when it becomes FRAND, buy it off the developing company and charge a flat rate to everyone.

    Oh you amazingly fast new functionality? We'd like it in our open standard, here's $1,000,000, or Give us the patent and you'll be void of fees for that standard for the first 1,000,000 handsets or something. Oh look things just got far less complex.

    I also kind of wish that, when patents are made, a value is declared for them, or estimated. $30 for bounceback (i don't know what apple actually wanted, random number) definately not worth it, so the value gets set at a maximum by the patent board.

    I also wish that, when a company tries to enforce a patent, before any legal case comes up the first thing is a case to determine the validity of the patent, and the estimated value of it. I mean I've said it before, you will have court proceedings for months only to find out a patent is invalid, or that rather than being worth $30, the court only awards $3 per handset damages. Reverse the process, it's invalid? Oh look suddenly nobody wants to go to court, it's only wirth 10% of our estimate? Eh not worth going to court, and the negotiations they wanted are higher than that.

    And the final thing. Developing a piece of hardware takes years, it takes an idea, years of design, years of building. Rome wasn't built in a day, space invaders was.

    The cost of, and time of, developing a software solution is marginal compared to hardware, so the time software patents last should be marginal compared to hardware.

    1. Tom 38 Silver badge

      Re: What I never got

      Standards patents are often valuable solely because they are part of a standard, which is why FRAND pools were invented.

      1. Wang N Staines

        Re: What I never got

        The problem is patent leeches like Apple will not 'FRAND' their patents, they abused others' FRAND patents. Simply because their patents are not standard patents.

        Leeches like Apple are expecting to pay $0.0001/device for FRAND and $30/device for theirs.

        1. Ben Tasker Silver badge

          Re: What I never got

          As someone on Groklaw observed though, Reasonable differs depending what side of the negotiating table you're on.

          Want to use my patent? $30/device seems reasonable

          I have to pay to use yours? $0.05/device seems reasonable

    2. Robert Carnegie Silver badge

      I'll try to explain about patents and standards.

      To make modern devices from different manufacturers work together with each other, such as mobile phones working with each other and with the phone network, the manufacturers need to agree standards.

      To protect investment in innovation, manufacturers need patents.

      Bearing in mind that I'm not a lawyer, what happens is that manufacturers agree to set a standard that includes using some of their patents, and that anyone can use the standard as long as they pay a properly limited fee to patent holders, and follow certain other rules of the standard.

      Without that kind of arrangement, each phone manufacturer would have to invent their own patented version of 3G or 4G quality network service, and to have one or more phone networks built using their standard. Your Motorola phone would only work close to a Motorola phone mast.

      So, a standard is liable to include permission, or a reasonable expectation, to use patents at a greatly discounted price - which the patent owner agrees to, because the standard will mean a successful business and a good income from patent fees.

      If I have a patent on, say, a new kind of shoelace, I can charge however much I want for to let people use it. I don't even have to allow anyone else to use it at all. I can just wear them myself and feel smug. On the other hand, if someone uses the patent without my permission, I can only sue them, and maybe also get the government to ban the import of their bootleg shoelaces. It's up to me to find out that my patent was swiped, and to take action.

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