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Patent goodwill? What the FRAND!?

Patent goodwill? What the FRAND!?

At first glance it would appear that a trickle of goodwill had leaked into the ongoing technology patents battle currently raging around the world, with key players this week assuring industry regulators they will play fair over patents which are deemed “essential” to an industry standard.

Such essential patents cover industry standard setting technology like MP3, JPEG, 3G and GSM. If a company owning these patents were able to use the courts to prevent a competitor shipping products that infringe, the firm would easily be able to create a monopoly; which nobody wants.

Actually, assurances from Microsoft, Google and Apple of their good intentions over this issue, which have come to light in recent days, are more like attempts to sooth the fears of concerned regulators. Though the seeming outbreak of fair play has done little to assuage fears over how this attritional patents war will pan out.

In a short blog post on Wednesday, Microsoft outlined its policy with regard to these essential patents, stating that it would adhere to promises it had made not to use them to seek injunction or exclusion against any firm.

“Microsoft is one of several firms that have been discussing these concerns with antitrust enforcers over the past few months,” wrote Microsoft lawyer Dave Heiner in a blog this week. “In these discussions, we have offered our view that any patent holder that promises to make its standard essential patents available on reasonable and non-discriminatory terms should do just that.

“That means that such patent holders should not seek to block shipments of competing products just because they implement an industry standard— a license on reasonable terms is always available.”

A letter from Google to the Institute of Electrical and Electronic Engineers (IEEE) which also came to light this week, appeared to set out how the firm planned to deal with the patents it will acquire through the purchase of Motorola Mobility.

A number of Apple products were blocked temporarily blocked from sale in Germany last week through Motorola enforcing essential patents in court.

Google lawyer Allen Lo, said that following the acquisition, Google would continue to license essential patents, but would maintain Motorola Mobility’s policy of demanding the 2.25% royalty payment “of the net selling price for the relevant end product”.

Crucially, Google has not stated that it will not seek injunctions, though suggested that only firms refusing to accept its pretty steep 2.25% licensing requirement would find themselves at the business end of an injunction.

A letter, from Apple to the European Telecommunications Standards Institute (ETSI), sent last year but only recently leaked, suggested that all tech firms should sign up to the same fair, reasonable and non-discriminatory (FRAND) commitment.

Apple’s policy of, “we’ll play fair if everyone else does”, has already garnered support from tech giant Cisco. Google has raised as many hackles as it has smoothed with its bullish approach to FRAND licensing. And with Samsung currently under investigation for enforcing patents of a ‘FRAND’ nature in Europe, it seems likely that other firms will yet weigh in.

Posted by: Brian

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