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?
According to Florian Mueller over at FOSS Patents, this means Apple has to be careful, and iterative in their defense.
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
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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.
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.
Ah, Rene, can you link the sentences where is said that Motorola or Samsung attacks are unfair, unreasonable and discrimnatories?
"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?
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.
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.
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.
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.