How Apple is defending against Samsung and Motorola's unfair, unreasonable, discriminatory patent attacks

Apple is increasingly playing defense against lawsuits from Samsung and Motorola that seek to take iPhones and iPads off the shelves and out of stores. Apple is trying to do the same to their competitors, of course, but there's a subtle difference -- Samsung and Motorola are suing Apple over FRAND (Fair, Reasonable, And Non-Discriminatory) patents and are apparently seeking licensing that's anything but fair and reasonable, and may in fact be discriminatory.

FRAND patents are typically typically pledged as part of a standard, which makes them essential to a technology, the organizations that govern those standards require them to be equitably licensed back to everyone. That's the whole point of having standards. If you want your invention to become a standard, you let it be used as a standard.

FRAND vs. non-FRAND

Apple doesn't play the FRAND game with the iPhone or iPad. They don't want their multitouch patents to be a standard. They don't want other companies using them. (Unlike Microsoft, they don't want to make their competitors' products more expensive, they want them to stop being Apple-like.)

Samsung and Motorola did play the FRAND game, however, and did want their wireless patents -- covering core 3G technologies, among other things -- to be standards. However, when Samsung and Motorola infringe on Apple's non-FRAND patents, they then demand outrageous terms from Apple to license their FRAND patents -- which Apple has to use for their products to work on existing networks -- hoping Apple will cave and cross-license their non-FRAND patents as part of the deal.

Put another way, it's like the owner of your local public pool refusing to let you swim there unless you let them swim in your private pool at home. Worse, it's like the manager of your local public pool demanding you pay him $1,000,000 dollars to swim in a pool you're supposed to have fair and equal access too, unless he gets to swim in your private pool at home. Worse still, it's like the manager of your local pool has made agreements that force anyone who wants to swim anywhere to get a license from his pool first, then demands you pay him a fortune for it, and give him access to your private, home pool. (In one case, in a swim-suit that looks surprisingly like yours. Only bigger.)

What can Apple do?

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According to Florian Mueller over at FOSS Patents, this means Apple has to be careful, and iterative in their defense.

Apple won't get a deal that meets its needs unless Samsung and Motorola (or Google) are forced to recognize the fundamentally greater strategic and commercial value of Apple's non-standards-related patents, which are the fruit of independent innovation and independent commercialization as opposed to a company's ability to push its patented ideas into industry standards everyone is forced to implement after a collective of major industry players defines them.

Samsung and Motorola (or Google) would like all patents to be treated in more or less the same way. They give nothing more than lip service to their FRAND licensing obligations. They may hope that the law on this isn't sufficiently settled in major jurisdictions. They look for loopholes in the rules -- including certain opportunities in Germany, where the case law on this is more favorable to them than elsewhere. If they realize at some point that this strategy doesn't work out because of a combination of court rulings, regulatory intervention and Apple's determination to stand its ground, then -- and only then -- Apple will ultimately get the kind of deal it wants. Until then, Apple doesn't even have much to talk about with Samsung and Motorola (or Google).

Sure, you can say Apple is being selfish by not licensing multitouch to one and all, but they never agreed to in the first place. (Are you being a selfish by not letting everyone who wants to come swim in your private home pool?) Samsung and Motorola did agree to let everyone use their patents under FRAND terms so those patents would be become essential to the standard.

Enter the European Union

Now Samsung and Motorola are certainly free to do and to sue what and who they want... up to a point. The European Union has already announced they're investigating Samsung for FRAND abuse, and Motorola may not be far behind. With pressure from Apple on one side, and anti-trust action on the other, it puts them in a delicate position.

In the meantime, Apple can't give in to Samsung and Motorola's unfair, unreasonable, and discriminatory demands, and they can't risk injunctions like the one that was temporarily in effect in Germany last week, becoming permanent before the EU sorts everything out.

Whether or not there will ultimately be a settlement, like the one they achieved with Nokia over similar FRAND patents, only time will tell. All Apple can do for now is continue the careful, iterative defense.

Mueller's whole article, which delves into the patents and legal issues in great detail, is worth a read.

Source: FOSS Patents, x2