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

By Rene Ritchie
last updated

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?

ITC judges says Motorola Android phones not violating 3 Apple patents

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

Rene Ritchie
Rene Ritchie
Contributor

Rene Ritchie is one of the most respected Apple analysts in the business, reaching a combined audience of over 40 million readers a month. His YouTube channel, Vector, has over 90 thousand subscribers and 14 million views and his podcasts, including Debug, have been downloaded over 20 million times. He also regularly co-hosts MacBreak Weekly for the TWiT network and co-hosted CES Live! and Talk Mobile. Based in Montreal, Rene is a former director of product marketing, web developer, and graphic designer. He's authored several books and appeared on numerous television and radio segments to discuss Apple and the technology industry. When not working, he likes to cook, grapple, and spend time with his friends and family.

38 Comments
  • Wow couldn't tell that this was going to be yet another bias article. Let's try it this way:
    BUSINESS IS BUSINESS. When you are in business you are trying to do what is strategically best for your company. Would you expect Motorola to act differently? Would you expect Apple to act differently? This is not a "score one for the boys back home at Motorola WINNING" type of pursuit. Believe it or not, executives at Motorola are trying to do what is best for their business, not gain respect on the Internet forums by battling in court.
  • I agree completely. If I were Samsung or Motorola, I would do the exact same thing. (Though I'd also be working really hard at making phones to do to the iPhone what the iPhone did to the Treo -- make it look old and outdated.)
  • This whole article is bias. The feature set in FRAND was designed to be fair and equitable for all of the companies involved in designing the patents. Now, each of them are being sued by apple in an attempt to keep them from using patents that were developed by Apple, meanwhile, Apple wants to continue using their intellectual property without paying a cent in royalties or allowing the trade-out in technologies. What a crock.
  • The thing that makes me laugh is the peploe who insist on having a 40+ inch tv on their wall are usually the same peploe willing to watch movies on their smart phone screen.
  • "Are you being a selfish by not letting everyone who wants to come swim in your private home pool?" - No, but I am selfish when I claim to have the only pool in the world and sue anyone else that tries to build one.
  • But if I had the patent on the pool then I am within my rights to not allow anyone else to build one. Just because you don't agree with how a system is setup doesn't mean you can simply not abide by it in it's current form. Apple has multi-touch patents and the bottom line is they simply do not want anyone else to have these features. Under our current system that is their right to protect what has been declared legally their creation.
  • But I have the right on the water (3g) and your pool is useless without it. I've allowed you access to the water for five years and now would like you to allow me to build a similar pool, and you sue me. Now its a boring summer for everyone. You b#%@h.
  • Wow dude when you resort to name calling you discredit yourself and come off pathetic and stupid.
  • I wasn't calling the commenter any name. It was a simple metaphor to describe the way the other companies must feel about apple's recent business practices. I'll compare that practice to Apple's use of the notification center, which is a direct rip off of Android. I understand that Android is open sourced and they have no right to sue, but really? You cannot call it ethical or moral to use someone else's idea and then sue that same person for using yours (albeit legal, by Google's lack of a patent of the notification shade and open source platform) My apologies to sting7k, not directed at you. Can't believe someone with "izzle" in their name called me pathetic though, Hello pot, meet kettle. Chill out dude.
  • How do the sparkees compare to the normal 15 xps that has the JBL sound system? I know the regular 15 xps sounds amazing, but how does this compare to it?
  • Apple decided they were going to do business by suing their competitors and now the strategy is biting them back
  • Didn't Motorola sue Apple first?
  • No.
  • Motorola sued Apple on Oct. 6, 2010. Apple counter-sued on or abouts Oct. 30, 2010
  • And Tim Cook was threatening lawsuits at least as far back as January 2009, in the famous "we will go after anybody" speech, which was directly targeted at Android, and had already filed against one maker, HTC. Give those actions in 2009-2010, It is difficult to see Motorola's filing as anything other than anticipatory (and yes, pre-emptive) defense.
  • "unfair, unreasonable, discriminatory patent attacks"
    Ah, Rene, can you link the sentences where is said that Motorola or Samsung attacks are unfair, unreasonable and discrimnatories?
  • The link is the source link at the bottom of the page. They're suing Apple over FRAND patents. Unless and until Apple can pay FRAND rates, the attack in un-FRAND.
  • The link is an opinion article.
    "Unless and until Apple can pay FRAND rates, the attack in un-FRAND."
    What? I repeat, can you show me a link where is stated that Motorola didn't offered a FRAND license?
  • Are cross-licensing deals FRAND terms?
  • Yes, actually.
    FRAND terms can be whatever the companies in question can agree upon. Quite commonly, it involves cross-licensing of patents. Not always, mind you, and it is certainly not required, but it does happen with some frequency.
    The bottom line is that Apple has to pay something. Motorola is not asking for anything out of the ordinary to ask for cross-licensing as part of that package; it is certainly not unfair or discriminatory, as you state. However, Apple is not acting unreasonably by refusing to include it, either.
  • Rene is right. Apple just does not want other products to have features they deem essential to their own that they have patents too. If they did they would license them and make money off those fees. Microsoft is doing exactly that and being successful at it. But that is not what they want, they only want companies to stop using their tech. Motorola could sell 5 times as many droids compared to the iPhone but if those droids are not using Apple's multi-touch (or any tech they feel Motorola has stolen) then I guarantee you Apple would not care about Motorola or Android at all.
  • If WM would have nearly 50% of U.S. market share, Apple would be suing them. Motorola sued Apple cause Apple wanted to pay less than everyone else, and Moto didnt agree. This was all Apple and their greed.
  • about Google & Motorola, also think what you are siayng about Windows Phone 7 & Nokia may be very true, i think the MeeGo N9 is a lovely phone & would love to see more phones like that but it is probably the first & last, sad
  • You are missing another subtle difference -- Apple is suing over non-technologies such as "slide to unlock" and "using a level measuring sensor to determine when to rotate a visual display"
  • That's a fair point, thought not all the Apple/Fingerworks patents are as arguably trivial. But the patent office granted them, just like they granted Motos, Sammys, and countless others.
  • Live by the sword die by the sword; Apple has been the undisputed king of litigation for quite a while. This is little more than a case of the chickens coming home to roost.
  • Unfair, unreasonable and discriminatory attacks? Oh my, I thought it was multi-million dollar companies doing business, not some poor helpless kid being bullied at school.
    Seriously, Samsung and Motorola have a fiduciary obligation to go after Apple at any and every opportunity, because Apple is eating away their profit and their market share.
    Besides, what was that Steve Jobs said about Android: "I will spend my last dying breath if I need to, and I will spend every penny of Apple's $40 billion in the bank... I'm going to destroy Android...I'm willing to go thermonuclear war on this." That is the mentality he left at Apple. Both Motorola and Samsung are heavily dependent on Android at this point, so how can you really call their actions unfair, unreasonable and discriminatory? Has the CEO of Samsung threatened to go thermonuclear on Apple? How's THAT for unfair and unreasonable.
  • Remember when Microsoft bailed Apple out all those years ago, and Steve said that:
    Because Apple believe in being open and that people should have a choice we'll be shipping our computers with safari and Internet Explorer.
    Not an exact quote, but still.
    Apple once fought against the giants; To help consumers, but now that they are the giant they don't want to give anyone any choice at all. It's Apple's way or no way. Stop suing each other and grow a pair of balls. Each company is doing well. Apple definitely more than others. Android and iOS take from each other. It passed the point of whether Android was stolen or not when Apple started taking things from it.
    Sooner or later both OS' are going to run out of things to implement and they'll be the exact same, only differing in looks.
  • It's almost as though all these lawsuits are really just a plot created by the lawyers of each company to increase billable hours for the hourly law staff. What are all these lawsuits achieving for consumers who buy these products? Apple isn't going to stop Android from creeping up on it and Android isn't going to cause Apple's popularity to wane to the point that on Apple launch days there are not people standing in line to buy Apple products. Moto and Samsung have yet to produce products that inspire the kind of desire that makes people stand in line. They all need to just get back to producing products people want to buy and stop the general counsel's of each company from filing these stupid lawsuits. The lawyers are the only one getting anything out of it.
  • Re: "All Apple can do for now is continue the careful, iterative defense."
    And time is on Apple's side. They're leading in the smartphone and pad computing spaces, in terms of design, technological innovation, profitability, mindshare, and value-add infrastructure / ecosystem. The longer it takes to sort out the patent suits, the better for Apple. They move a little (or a lot) further ahead every day. It's the competitors who are in a hurry.
    And beating all the Samsungs of the world in their attempts to abuse FRAND-encumbered patents will serve the same purpose as "patent reform" would. Anyone who says they want "patent law reform" is willfully ignorant. Just because you don't understand patent law doesn't mean it shouldn't exist. Eventually, tech companies will stop attempting to use FRAND-encumbered patents as ultimate weapons. They'll use them for their real purpose: to allow widespread use of common, essential technology, and to earn a fair licensing fee for the inventors.
  • Totally agree, in fact have a look at the iPod-phone in the igaems. Clearly would be a big hassle to use if it had launched.Excuse me for being cliched, but the quality here mattered more than the quantity
  • I just found you cnrhmiag blog on Coreys blog..Have you on my fave list..Thank you..I llive 6 months in Michigan and 6 months in Florida..Love to sky ,but hate snow LOL
  • I'm too sick of the patent wars to care. I'm a fan of tech, not a lawyer.
  • surprise surprise my comments been removed lol
  • Dude, knowing what your comments are normally like , I'm not surprised they're removed.
  • Apple sued Samsung because they felt the Tab looked too much like the iPad.. because, you know, having rounder corners and a touch-screen is such an Apple exclusive thing, right? Are you REALLY saying Apple is any less guilty of abusing BS patents than Motorola or anyone else you think is playing "unfair"? God, Rene. Lay off the Kool-Aid.
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  • President Bush afforded Israel. Now contrast Mr. Obama's behavior and his insulting speech with that of Mr. Netanyahu's the next