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Update: Motorola’s Sales Ban overturned by Apple

by Charlie Rothbart on 3 February 2012

Back in December, Motorola was successful in imposing a sales ban in Germany on iPhones and iPads (with the exception of the new iPhone 4S and the wifi-only iPads) for infringing a Motorola-owned GPRS patent.

This patent is deemed essential to the standard for GPRS data transmission, and, as with the 3G standard-essential patent Samsung is asserting against Apple, should have been licensed by Motorola under its FRAND obligations (standard-essential patents must be offered under fair, reasonable and non-discriminatory license terms).

But this didn’t happen, and Motorola went on to assert this patent against Apple in court.

Today, however, the German Court overturned the sales ban which it had imposed on Apple’s products in December. This appears to be due to Apple making a new offer to Motorola to accept a licence to the patent, which implies that up until now, the parties had been unable to agree ‘fair and reasonable’ terms, most likely in relation to the price-tag.

This is an interesting development which, if it turns out to be centered on a failure to agree a price, could mean that the same is true of the Samsung case. And if Apple is found to have been too rigid in its negotiations with Samsung and Motorola, or in the language of competition law, ‘unreasonable’, it could face significant penalties.

According to a Bloomberg report, Samsung says that it is confident it has fully complied with competition law and its licensing obligations, and the Motorola decision  could be good news for Samsung in relation to the EU Commission’s anti-competitive investigation, which we reported earlier this week

Perhaps today’s Motorola ruling is indicative of Apple overstepping the mark?

 

 

 

 

 

 

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Apple, Samsung, and Antitrust

by Charlie Rothbart on 1 December 2011

It has been announced today that Samsung has had its first little victory over Apple, with the ban on Samsung’s sale of tablets in Australia being overturned. This could be very good news for Samsung, especially if it manages to get the product back on the shelves in time for the Christmas rush.

A stay has been granted until Friday, in which time Apple can appeal the decision, although whether or not it will do so remains to be seen.

Samsung is now hoping that this decision will pave the way for other jurisdictions to follow suit, and that the German courts will also lift the injunction it imposed against Samsung.

This case could have significant influence over the way in which standards-essential patents can be used in the future. OK, Samsung’s bans have been in relation to infringement of less fundamental technology, but the battle has highlighted to the world the dangers of patents being used to block competitors in the market where the patents relate to technology essential to the market as a whole.

The ITC and the EU have both started antitrust probes, with the EU Commission issuing RFIs to both companies last month. The investigation appears to be more of a threat to Samsung, as it is only Samsung asserting standards-essential patents in this instance. However, although there are rumours that Samsung refused to negotiate a licence with Apple before this litigious period began, there is a risk that Apple could also be fined for not taking a licence under FRAND.

Having said all of that, so far Samsung has been unsuccessful in stopping Apple, so whether it can really be said that these patents are being asserted with anticompetitive outcomes is questionable.

We will know more further down the line. Antitrust investigations can take several years, and if the RFIs are still being completed, it is very early days and nothing will be made public at this stage.

Rather than keeping an eye on who does and does not get fined, it will be more interesting to watch the impact this litigation and investigation has on the future of standards-essential patents, FRAND, and patent litigation in the telecommunications market in general.

 

 

 

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The smartphone battle: Apple v Samsung – What does it all mean?

November 25, 2011

In my last post I mentioned the number of questions raised by this on-going battle between Apple and Samsung. This post will outline what some of these questions are. 1. What’s Going On? We all know what this fight is about in terms of IP infringement, but what is it really all about? Can it [...]

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Steve

October 6, 2011

It is a very sad day for everyone involved with ipVA and the technology world. Steve (like Bill) deserves and earned the right to be referred to by his first name only. No surname needed. That alone generates a familiarity that makes someone like me feel like I knew him well even though I have [...]

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Apple Samsung spat goes Apple’s way in Germany

August 28, 2011

It is a delight to wake up on a Sunday morning and scout around the mainstream press for more IP news. Good also to see Florian Mueller at FOSS patents getting good exposure and giving insightful comments on both the BBC and this article in the Guardian on the Apple and Samsung spat. http://www.guardian.co.uk/technology/2011/aug/26/apple-wins-ban-samsung-galaxy Without [...]

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Trolls hit small app developers….Google really should step in

August 27, 2011

The Beeb seems to be following its software patents are all bad trend with an article showing the extent to which Lodsys threats are touching even small app developers using the Android platform. http://www.bbc.co.uk/news/mobile/technology-14682700 Google’s “not our problem” stance is wearing a lot thin. Key question… What is Google’s purpose in promoting Android? Answer, just [...]

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Now that’s what I call a break fee!

August 23, 2011

Widespread reports over the past 48 hours that Google must pay a $2.5bn break fee to MM if the deal does not proceed. It is reported to be the largest break fee negotiated. It surely is a monster. It does appear that whatever Google finds in the coming months it is still half pregnant with [...]

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All join in–the mainstream press are piling into talking about IP

August 21, 2011

Lots and lots and lots and more lots of press comment focussed on the great IP debate. Maybe Ben Goodger was right in saying that Nortel could be a tipping point. The truth is that we’ve never had more work or more enquiries. Something is stirring! I like the Guardian Online and this piece on [...]

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Google-we really really hope that you know what you are doing!

August 17, 2011

Google’s widely reported acquisition of Motorola Mobility is continuing the run of the prominence of IP and specifically patent reporting in the financial press. The FT runs a very good insights piece here, though you’ll need to activate an account to read it. I’ll come back to the financial reporting of this when back from [...]

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IP Strategy (Post 1-What Exactly is IP?)

August 15, 2011

What is an IP Strategy? In this series of posts we wanted to give the ipVA perspective of what is an effective IP strategy? To back up these posts we are going to post a white paper on the ipVA main site at the end of the series. This explains in fuller terms the ipVA [...]

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