I know saying this will be unpopular. But this is entirely the right decision. Most now understand what FRAND refers to. But I've noticed most wade into this debate without understanding what standards essential patents and how they may or may not be technically essential patents. A standards essential patent is a patent on a design that is incorporated such that it becomes a mandated design aspect of the standard. Often standards essential patents are not technically essential. So if we are camera companies and want to agree a new standard for interchangeable camera lenses, there may be a couple of different locking mechanisms put forward. Each camera company might have it's own locking mechanism and they may be as good as each other's, but one has to be chosen for the standard. In this case, if each company has patented it's locking mechanism, one is chosen to be mandated by the standard and will, for this reason become known as standards essential. It will not however be technically essential.
Now understand, each companies locking mechanism patent isn't worth much because their competitors have alternative solutions. However the patented locking mechanism that gets chosen for the standard can potentially come to be worth a lot, because once the standard is established, everyone has to use it.
As part of the standards making process, companies Agee to put their patents into a patent pool so users of the standard (which includes pool members and their customers) do not have to fear being sued. Patent pool members especially have to agree that patents which are chosen to be standard essential will always be licensed on a FRAND basis. The whole point of a patent pool is, because the web of IP ownership can be so complex, customers should be able to use a technology without having to acquire all licenses up front. Most pools are designed to work that way. Additionally patent pool participants need to know they and their customers will not be held hostage by a member who's patents have been chosen to be standard essential. A condition of joining the pool is that pool members give up the right to aggressively pursue license fees.
All Samsung's patents used against Apple are standards essential and not technically essential. They choose to put them in a patent pool (nobody is ever forced too, famously Qualcomm held technically essential patents out of the 3G standard for years, because they had the best patents and could do so until the pool agreed to give them the special terms they wanted) and only have the value they have because they choose to allow them to be used as part of a standard (and agreed to the rules). Companies contribute to patent pools in the belief their patents will be worth more if if they continually accrue small incremental fees because they are part of a standard that gets used more than their patented inventions otherwise would be. You agree to forsake the right to hold-up pool members or their customers.
Samsung, on being sued by Apple, realised they had no patents they could reply with. They found all the patents relevant to Apple's business that they own, had already been contributed to patent pools (and they had been quite happy to accept the conditions of being part of the pool when they joined). They then unconscionably took advantage of the fact that though they had previously agreed to license the patents on a FRAND basis, the enforcement of civil agreements is a distinct legal process from the legal avenues available to to the patent owner (this incidentally is a reason they won the injunction, because the ITC's first duty is to enforce the rules and laws around patent ownership, not the civil agreements of patent pools. They do have some leeway to take patent pools into account but it seems they decided to avoid the politics and just look narrowly at the case, leaving the politics to the president).
Samsung have in effect torn up their patent pool agreements and use the patents that should have been out of reach for aggressive action, to attack Apple.
Apple chose not to contribute their patents to a patent pool, so retain the right to do whatever they wish with them. Samsung tried to make it a condition of licensing their encumbered standards essential patents, that Apple should be forced to cross license their unencumbered patents. Brazen. They have essentially made up new provisions entirely outside the scope of the patent pool and have been behaving as though their patents have not been contributed to pools at all. This is why they are now under anti-trust investigation in both the US and Europe.
Biting the hand that feeds IT
