Motorola Wins Injunction Against Apple's iCloud in Germany

[watcha]

[citation][nom]irish_adam[/nom]no your wrong the patent for the push email service is not a FRAND patent and they dont have to let apple use it at all.The other patent was a FRAND patent (the one that got the apple stuff banned) however Apple refused to pay the fair fee they offered a few years ago so now they have to agree to a settlement for those years not paid before they get to use the patent legally[/citation]

Just re-read this, you're right, but I was talking about the FRAND patents (the ones which actually had a consequence).

 

[watcha]

[citation][nom]irish_adam[/nom]@watchaThe separate push email ban would only come into effect if Motorola decided to enforce a second judgement that Apple's iCloud and MobileMe infringed another of its innovations.The patent relates to two-way communications between pagers and other devices and was granted in 2002.If Motorola decides to enforce the judgement some iPhone users in Germany would lose the ability to automatically receive emails as soon as they have been sent. Instead they would either have to manually check their accounts or set their devices to periodically check for updates.This patent is not deemed to be critical to an industry standard, so the firm does not have to license the technology to Apple even if the iPhone-maker offered to pay.[/citation]

Yep, I agree with this,

 

[irish_adam]

>_> then i dont understand you quoted molo9000 and said that the push cloud email was covered under a FRAND patent but it isnt the FRAND patent that got the i-devices banned was to do with GPRS data transmission and nothing to do with the i-cloud at all.

you own quote says

Apple reportedly did not contend in the trial that the patent was covered under FRAND. Instead it tried to narrow the scope of the patent to allow iCloud to appear sufficiently different so as not to infringe. This approach basically failed in the lower court.

 

[watcha]

I know, sorry irish_adam, I posted the wrong bit. What you said was accurate.

I was more talking about the FRAND patents which caused the devices to be temporarily banned from Germany - which were FRAND.

You're right though, in that Apple has not contended that they are FRAND in the case of the PUSH email to iCloud.

Personally though, I think push email is potentially a FRAND type-patent, but you're right that it isn't at the moment.

 

[irish_adam]

but they are not committing FRAND abuse like you claim Motorola offered them to licence it in 2007 for the FRAND rate but apple refused to pay it and as past infringements are not covered under FRAND it means that they are well within their rights to ask for above FRAND rate for the past 4 years. Apple just wants to pay 4 years of FRAND rate without any amount of damages to motorola.

Apple is in the wrong here, they had the chance to licence this technology fair and square since 2007 and now its been taken to caught its moaning as it has to pay a premium

 

[watcha]

See, this is where you ARE wrong.

Apple contends that the licensing offered by Motorola is not fair or reasonable, an entirely subjective thing.

It has NOT been decided by the courts yet whether this is the case or not, but either way, it is not a refusal by Apple to pay, it's an overpriced licensing offer by Motorola.

 

[watcha]

[citation][nom]DailyTech[/nom]
Apple rebukes the claim that it was unwilling to pay a license fee, instead arguing that Motorola's proposed licensing offers weren't "fair" or "reasonable".
[/citation]

http://www.dailytech.com/Article.aspx?newsid=23929&red=y#747969

 

[irish_adam]

"Apple had offered to pay a Frand-set fee in the future and was willing to pay a similar rate for past infringements. But it lost the case because it tried to retain the right to contest the validity of the patent with a view to past damages.

It tried to do this because Motorola had defended its right to charge an above-Frand rate for Apple's use of its technology over the past four years. This could have been many times higher than the rate Apple was willing to pay and potentially very expensive."

...

"We have been negotiating with Apple and offering them reasonable licensing terms and conditions since 2007, and will continue our efforts to resolve our global patent dispute as soon as practicable."

http://www.bbc.co.uk/news/technology-16112259

as i said, Aple are just crying because they have to pay more as they were caught

 

[watcha]

Your own quote proves the fact that Motorola are not offering fair and reasonable amounts.

[citation]Motorola had defended its right to charge an above-Frand rate for Apple's use of its technology over the past four years.[/citation]

You aren't allowed to charge 'above-Frand' rates for FRAND technology.

 

[irish_adam]

you can charge above FRAND rates for past infringement, you cant just break the law for 4 years and get away with it by handing over what you should have to start with. If that was so there would be no point in licensing FRAND patents until you were caught incase you were never caught.

While competition law requires the patent holder to extend a license on FRAND terms going forward, past infringement is a different matter.

http://fosspatents.blogspot.com/2011/12/motorola-mobility-wins-german-patent.html

i suggest you read that whole article as it explains why legally Motorola CAN withhold a FRAND patent

 

[watcha]

Irish_Adam,

'In Germany, however, a legal precedent has established that a FRAND defense can only be used under certain conditions. Namely, a company must have made an offer to license the patents in question on FRAND terms and posted a bond for expected future royalties. If a patent holder then refuses the offer and sues, the FRAND defense can be used.

Apple apparently made an offer to license the patent on FRAND terms going forward. But the matter was complicated by the fact that Apple's agreement included a clause that would allow it to try and have the patent invalidated if Motorola tried to seek damages for past infringement over and above the agreed FRAND rate.

Apple is in fact contesting the validity of the patent in suit in another federal court in Germany. Obviously it doesn't want to have to pay for infringing a patent that might not be valid.'

http://arstechnica.com/apple/news/2011/12/motorola-wins-injunction-against-apple-could-spell-trouble-for-eu-sales.ars

Also:

'Motorola claims that it approached Apple in 2007, after the launch of the original iPhone, to license this and other standards essential patents for FRAND terms. "We have been negotiating with Apple and offering them reasonable licensing terms and conditions since 2007," Scott Offer, senior vice president and general counsel of Motorola Mobility, said in a statement e-mailed to Ars.

Apple apparently didn't consider the terms very fair, and the issue spilled into the courts in October last year, with Motorola filing lawsuits and ITC complaints against Apple over 18 patents.'

In other words, Apple only refused the original offer because it was NOT reasonable, not because it was 'waiting to be caught'. Furthermore, it offered to pay the FRAND rate but simply protected it's rights to make sure that it legally HAD to pay for the patent. Entirely reasonable.

And that is why they are appealing the case, and the FRAND defence can be used in cases where an offer to pay FRAND rates was put forward, which it was in this case.

 

[irish_adam]

Apple has already admitted its liable to pay for past infringement because it was included in their offer, this was one of the reasons why it was accepted by the German court

But the Orange-Book-Standard decision didn't address the issue of past damages explicitly. I have talked to several lawyers who are uncomfortable with its lack of specificity. Motorola's German counsel found multiple ways to justify a rejection of Apple's FRAND offer and avoid having to grant a compulsory license, at least at this stage (this will likely be the most important issue on appeal). The one I just described at length is the one that won the day. Therefore, the court didn't see a need to look into some of the other FRAND questions raised, which include the following ones:

Motorola apparently argued that it would not have to grant a license for future use only if someone recognizes liability for past infringement in principle. They apparently want to receive a payment for those past damages or at least a bond that guarantees such payment.

It's unclear whether such licensing offers as the one made by Apple can be limited to a particular patent, or to standards-essential patents valid in only one jurisdiction (in this case, Germany), or whether a patent holder can withhold a license for the German market unless an offer to take a license covers all standards-essential patents held by the patent holder around the world.

The court also didn't address the question of whether willful infringement might preclude a defendant from access to a FRAND defense. Motorola claims to have contacted Apple back in 2007 with a demand to take a license to its standards-essential patents.

http://fosspatents.blogspot.com/2011/12/motorola-mobility-wins-german-patent.html

If Apple didnt think the terms were fair why did it not take Motorola to court over it? why has it admitted it is liable for past infringement?

 

[irish_adam]

quoted the wrong bit >_> they were reasons the court didnt even need to answer too because Apples defence never made it past

The logic presented by Motorola's counsel convinced the court: someone using a patented invention should have to pay a price for being found to have infringed. While competition law requires the patent holder to extend a license on FRAND terms going forward, past infringement is a different matter. If, in the alternative, damages for past infringement were limited to a FRAND royalty rate, Motorola and Judge Voß argue, an infringer might ultimately get to use the patent on more favorable terms than someone procuring a license at the outset. They say that favorable terms would result from a scenario in which payments for using the patent in the past can be avoided by proving the patent invalid.

 

[watcha]

That is just the Motorola argument, it's not necessarily the law.

All we're doing is presenting differing sides of the argument in a court case which will take a long time to be resolved, despite Motorola having won this early case it could easily change at appeal.

And the reason why the sentence you said doesn't apple, in this case, according to Apple, is that they were willing to pay 'reasonable' license fees all along - but Motorola did not offer them 'reasonable terms' - so Apple had no choice but to refuse.

What you posted would be relevant if Apple had refused a reasonable license offer from Motorola.

As Dailytech said:

'As part of its antitrust procedure in authorizing the purchase, it may examine whether Motorola unfairly denied Apple FRAND licensing in the two of its three Mannheim Court lawsuits that were based on 3G patents.'

 

[watcha]

apply*

 

[watcha]

[citation][nom]irish_adam[/nom]Apple has already admitted its liable to pay for past infringement because it was included in their offer, this was one of the reasons why it was accepted by the German court http://fosspatents.blogspot.com/20 [...] atent.htmlIf Apple didnt think the terms were fair why did it not take Motorola to court over it? why has it admitted it is liable for past infringement?[/citation]

It has admitted it is liable to pay FAIR AND REASONABLE amounts for the past infringement. Not more than that. It contends that the original license offer from Motorola was NOT fair and reasonable.

Apple is under no duty to take Motorola to court over it, so long as it offers to pay Fair and Reasonable rates, it has satisfied its obligations. It has nothing to gain from forcing Motorola to let them pay at the rates they offered - it's Motorola's problem (if Apple successfully argues what I am pointing out).

 

[irish_adam]

What? Apple want to licence a motorola patent to use in their technology so they either pay what motorola says or they take motorola to court for not offering them a fair and reasonable rate. Doing nothing until they are taken to court over it puts you in the worng, if they felt that Motorola were breaking the terms of the FRAND patent they should have done something about it not just ignored them

 

[watcha]

This is not the case at all.

When it comes to FRAND technology, provided Apple made an offer to pay FRAND rates, their obligation is satisfied, WHETHER OR NOT Motorola accept.

In fact, Motorola refused, and that's their choice. There is no law saying that Apple then has to take Motorola to court. Nowhere, none. You say they 'should have' - the law doesn't.

In fact, the law says that FRAND is a defence where the FRAND rates were offered but refused, which is the case here.

 

[irish_adam]

The offer was only made after previous infringement hence why they argued that they could turn down the offer which is what the court passed the injunction. They didnt make the offer until motorola started proceedings against them

 

[watcha]

[citation][nom]irish_adam[/nom]The offer was only made after previous infringement hence why they argued that they could turn down the offer which is what the court passed the injunction. They didnt make the offer until motorola started proceedings against them[/citation]

You do realise you're now changing your line of reasoning right? So we've now established that what I said was right, and that Apple is NOT under a duty to instigate legal proceedings, and now we're debating timing.

Apple claims that during the original license discussions it offered to pay FRAND rates but that the offer from Motorola was unreasonable, and not in line with FRAND rates. Thus, Motorola breached it's FRAND obligation to license the technology at fair and reasonable rates, leaving Apple with no choice but to decline.

This is why Motorola may find itself (like Samsung) under scrutiny from the EU for unfairly denying Apple FRAND patents. Motorola claims it was open to licensing from 2007 or whenever - but it doesn't specify the terms of that 'offer' - and Apple maintains that it was not reasonable. It is not sufficient if Motorola offered licensing - it has to be fair and reasonable. The court case hinges on whether or not it was, because if it wasn't, that's clearly uncompetitive behaviour from a FRAND patent holder, which would not be very well received by the courts.