Compliance with 3G Standards ‘Prima Facie’ Evidence of Infringement

A recent procedural decision of the Federal Court of Australia (Vringo Infrastructure Inc v ZTE (Australia) Pty Ltd (No 4) [2015] FCA 177) has revealed new details of the case against Chinese telecoms equipment manufacturer ZTE by Vringo Infrastructure, Inc.

Vringo is a US-based non-practising entity (NPE) which commenced patent infringement proceedings against the Australian subsidiary of the Chinese company ZTE Corporation back in June 2013.  Although Vringo has been called a ‘patent troll’ by some media outlets (e.g. smartcompany.com.au and itwire.com), I have previously disputed that description in the case of this litigation by Vringo.

In the most recent development, the Federal Court has granted an application by Vringo allowing it to have the Chinese parent company joined to the proceedings in Australia.  I believe that Vringo’s motivation for this latest move is because it wishes to obtain further technical details regarding the ZTE products it is alleging to infringe its patents.  By adding the Chinese company – which manufactures the products – as a respondent, Vringo will be able to ask the court to order discovery by ZTE Corporation of the information Vringo needs in order to prove infringement.

Other interesting details to emerge from the recent decision are:

1. that the accused products include a USB device used to access a 4G cellular mobile data network supplied by ZTE to Telstra;
2. the accused products further include an item of network equipment identified as the ZXWN MSCS Mobile Switching Center Server; and
3. the Vringo patents are said to be essential to implementation of standardised mobile data networking features including HSPA+ in 3G networks, and the Radio Link Protocol (RPL) which is a feature of 2G networks that was carried over into 3G.

The decision is also interesting in showing the relatively low bar set for establishing a prima facie case of infringement at an early stage of patent proceedings, i.e. prior to the availability of detailed evidence.  Vringo was able to meet its burden by relying upon analysis prepared by a patent attorney (i.e. without the evidence of an established technical expert), and based only upon a comparison between the patent claims and the technical standards documents (i.e. without reference to the operation of the actual products said to infringe the patents).

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Tags: Australia, Licensing, Patent litigation, Patent pools, Trolls, Vringo, ZTE

Licensee Wins, But Loses, Termination Appeal

A full bench of three judges of the Federal Court of Australia has ruled that the Australian Patents Act 1990 does not authorise the termination of a licence covering multiple patents in circumstances where some, but not all, of the patents have ceased to be in force (Regency Media Pty Ltd v MPEG LA L.L.C [2014] FCAFC 183).

The decision is important because it would appear to settle the interpretation of a provision, in section 145 of the Patents Act, that has long been regarded as potentially ambiguous.  In over a century, however, this provision, and its precursors in the Australian and UK patent laws, has not been closely examined with a view to resolving this potential ambiguity.

In the interests of full disclosure, I should point out that Regency Media (the licensee, and appellant, in this case) has been a Watermark client for a number of years.  I have personally worked closely with them, and Watermark Intellectual Property Lawyers represented Regency in the appeal.  This post will therefore focus on the legal reasoning of the Full Court.  The judgment itself summarises the factual background, should you wish to read more.  I published a similarly dry summary of the original decision of a single judge of the court, back in March last year.

Interestingly (or frustratingly, depending upon your point of view) this was a case in which the appeal court ruled that the judge at first instance had got it wrong.  As the Full Court stated, at [18], ‘Regency succeeds in the appeal.’  However, MPEG LA went on to succeed based on an argument first raised in an amended notice of contention filed in the appeal.  It is thus notable that the period within which Regency could have applied for special leave to appeal the Full Court’s decision to the High Court of Australia has expired, and no application has been filed.

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Tags: Australia, Licensing, Patent law

CSIRO Scores US$16m Wi-Fi Win Over Cisco

In the most recent decision relating to the CSIRO Wi-Fi patent, a US Federal Court Judge in the Eastern District of Texas has ordered networking equipment manufacturer Cisco Systems, Inc, to pay the Australian research organisation US$16,243,069 (plus interest) in damages for infringements dating back to 2005. 

The bulk of the award relates to 18,073,797 consumer-grade products sold under the Linksys brand (Cisco acquired Linksys in 2003), with the remainder being for 1,471,319 Cisco enterprise products.

The case, Commonwealth Scientific and Industrial Research Organisation v Cisco Systems, Inc, Case No. 6:11-cv-343 [PDF, 303kB], is interesting for a number of reasons. 

The judgment is entirely devoted to a determination of damages, based on an assessment of a ‘reasonable royalty rate’, since the parties agreed that liability for infringement, and validity of the patent, were not in dispute.  And although both CSIRO and Cisco had originally demanded a jury trial, in the end they consented to a bench trial (i.e. where the case is heard and decided by a single judge).

Additionally, the dispute has a historical context lacking in CSIRO’s other Wi-Fi litigation.  In 2001, Cisco acquired the Australian start-up, Radiata Communications Pty Ltd, originally established in 1997 by Macquarie University Professor David Skellern and his colleague Neil Weste.  Radiata took a nonexclusive licence to the CSIRO wireless LAN patent with the intention of developing chips implementing the technology (see ‘The Story behind CSIRO’s Wi-Fi Patent “Windfall”’.)

The judgment also addresses issues around CSIRO’s obligations (or not) to licence the patent on ‘reasonable and non-discriminatory’ (RAND) terms, the basis for calculation of royalties (i.e. final product prices, or the value of individual lower-cost components) as well as the usefulness of expert evidence in these kinds of cases.

In the end, CSIRO was largely successful.  Although the final damages award is around half of what it had asked for, it is about fifteen times the amount Cisco argued it should have to pay.  And the court found in favour of CSIRO on almost every other issue that was in dispute.

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Tags: Australia, Licensing, News, Patent litigation, Public research

Do You Have a Licence to Sue?

It is very common to establish a corporate structure including two or more entities, in which one entity holds the assets of the business, while another entity acts as the operating or trading company.  I am not a corporate lawyer or a financial advisor, so I do not propose to go into the pros and cons of such arrangements in general.  The only important point to make for the purpose of this article is that ‘assets’ generally include intangible assets, and that intangible assets include patents.

This raises the issue of authorisation: if one entity owns a patent, and a different entity exploits the patented technology, then the operating entity must be licensed by the holding entity.  It may be that the two entities are companies with common ownership and/or directorship, in which case the terms of the licence may not be set out fully (or perhaps even at all) in writing.  It is not uncommon for an operating company to carry on business without any formal written licence agreement with its related holding company, with the effect that an ongoing royalty-free licence to exploit the patent rights would usually be implied from the circumstances.

There are all sorts of reasons why this is an undesirable situation.  For example, a formal licence agreement can set out in detail what happens to the licence in the event that the operating company is sold or becomes insolvent.  An implied licence, or verbal agreement, will never be sufficiently clear to address such situations without ambiguity.

However, I am concerned here with one very specific issue that arises under the Australian Patents Act 1990.  Section 120 of the Act provides that ‘infringement proceedings may be started … by the patentee or an exclusive licensee.’  Thus, if the operating company is not an exclusive licensee it will not have standing to sue for infringement.  An exclusive licence is one which grants to the licensee a right to exploit the patented invention to the exclusion of all others, including the patentee.  By comparison, a licence limited to a single licensee where at least some rights are retained by the patentee is known as a sole licence, while a non-exclusive licence leaves the patentee free to grant further licences to other parties.

In the case of the holding/operating company structure, the operating company is likely to be the entity suffering damage as a result of infringing activities, and with the funds to take action.  Thus an inability to do so on its own behalf may place it at a disadvantage.

This issue arose recently in a series of decisions issued by Justice Middleton in the Federal Court of Australia, Damorgold Pty Ltd v JAI Products Pty Ltd [2014] FCA 150, Damorgold Pty Ltd v JAI Products Pty Ltd (No 2) [2014] FCA 377 and Damorgold Pty Ltd v JAI Products Pty Ltd (No 3) [2014] FCA 651.  It is the third of these judgments that relates specifically to the issue of standing.  Despite what might be described as some degree of informality in past licensing arrangements, Justice Middleton was prepared to find that Damorgold’s operating company, Vertilux Corporation Pty Ltd, had been, at all relevant times, an exclusive licensee of the patent at issue.

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Tags: Australia, Licensing, Litigation

Patents, Competition and Anticompetitive Conduct

Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), has instituted Federal Court proceedings against Pfizer Australia Pty Ltd (Pfizer) for alleged anticompetitive conduct (misuse of market power and exclusive dealing) in relation to its supply to pharmacies of blockbuster cholesterol drug atorvastatin.

Until May 2012, Pfizer held an Australian patent on atorvastatin, and was therefore the sole supplier of the drug to the Australian market, under the brand name Lipitor.  The drug was prescribed to over a million Australians, and had annual sales exceeding A$700 million.  Put simply, the ACCC alleges that Pfizer misused the market power it held during the term of its patent to restrict competition from generic substitutes after the patent expired.

A patent is, of course, inherently ‘anticompetitive’, in that it provides the patentee with exclusive rights to exploit the claimed invention commercially.  The intervention in the free market represented by a patent is justified on the basis that providing a limited-term monopoly-style right is an incentive for people and companies to invest in research, development and commercialisation of innovative new products and services.

However, once the patent expires, other suppliers are free to enter the market with competing products or services based on the formerly-patented invention.

The rights grated by a patent do not, however, permit a patent-owner to do anything they like during the term of the patent.  The term ‘exclusive right’ means a right to exclude others from exploiting the invention.  A patent does not grant the patentee the right to use the invention in ways that are contrary to the law, or that infringe upon the rights of others.

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Tags: Australia, Competition law, Licensing, Pharmaceuticals

The Right – Or Not – to Terminate a Patent Licence

The Australian Patents Act 1990 contains a provision, in section 145, permitting the termination of a patent licence, by either party, following expiration of a licensed patent.

The existence of this provision may well raise questions for some people.  For example, why would there be an need to terminate a licence after a patent has expired – would the licence not have also expired as a result?  Well, maybe not.  There is nothing to stop parties from entering into contracts with terms that continue beyond the expiry date of a patent. 

Which then raises the question of ‘freedom of contract’, i.e. if someone has signed a licence agreement in good faith, knowing its terms, why should they be granted a statutory right to nullify that agreement?

Last week, this question was addressed in a decision of Justice Flick in the Federal Court of Australia: MPEG LA, L.L.C. v Regency Media Pty Ltd [2014] FCA 180, at [15]

That object and purpose, at least in part, is to prevent the holder of a patent from taking potentially unfair advantage of the statutory monopoly conferred by a patent after it has expired. Like s 144, s 145 is aimed at anti-competitive conduct. A licensee wishing to use a patent may have no commercial option other than to enter into an agreement with a patent holder to pay royalties whilst the patent remained in force and for a period of time thereafter.

The issue in last week’s decision was, more specifically, whether or not s 145 permits a party to terminate a licence covering multiple patents when some, but not all, of those patents have expired.  The court ruled that it does not.

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Tags: Licensing, Patent law, Patent pools

Recording Security Interests in Australian Patents and Other IP

If you own a patent, or some other valuable intellectual asset, you might want to use it as security to obtain a loan, or other financial support, for your business.  Conversely, if you have funds that you are thinking of investing in a business that owns relevant IP, you may wish to secure an interest in the IP so that you can take ownership if the investee defaults on its obligations.

These types of arrangements are perfectly legitimate.  Registered intellectual property rights, such as patents, trade marks and registered designs, are like any other property in that they can be used as collateral, mortgaged, and otherwise dealt with as securities.

It is preferable that any such security interests be officially and publicly recorded.  There are a number of reasons for this.  For one thing, if somebody is considering buying or licensing a patent, they ought to be able to find out whether any third party holds an interest in it (in the same way that, when buying a second had car, you need to find out whether it is still under finance).  Furthermore, when something goes wrong, such as the rights-holder declaring bankruptcy, there should be some simple way for a party with an interest in the assets to establish its priority.  This is particularly important in more complex cases, in which a number of investors and creditors may have competing claims.

But how, and where, should you record any interests in Australian patents or other registered IP rights?

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Tags: Australia, Licensing, Security interests

NZ’s PowerbyProxi Sits on a Potential SEP Goldmine

A $4 million investment by Samsung Ventures Investment Corporation in New Zealand company PowerbyProxi Limited has received wide coverage over the past week (see, e.g., the IAM Magazine blog, scoop.co.nz, gigaom.com and AllThingsD, among many others).

On the face of it this is a good news story for the NZ start-up company, which was founded in 2007 based, in part, on intellectual property originally developed at the University of Auckland.  PowerbyProxi claims to have developed the world’s most advanced and safest wireless power system, and the first commercial wireless recharging system capable of 3D power transfer, regardless of how a device (such as a smartphone) is oriented within the recharging unit.  It also claims to own a portfolio of 126 granted patents worldwide, along with numerous further pending applications.

There are two components to the Samsung deal.  Samsung Electro-Mechanics has entered into a strategic partnership with PowerbyProxi, under which it will license the NZ company’s consumer electronics and home appliance wireless power IP and technology.  The other component is the $4 million in strategic funding from Samsung Ventures Investment Corporation, which will also see Samsung Ventures America senior investment manager Michael Pachos joining the PowerbyProxi board, suggesting that the deal gives Samsung a substantial equity interest in the company.

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Tags: Innovation, Intellectual Asset Management, Licensing, New Zealand, Technology standards

A ‘Patent Troll’ Down-Under? Why Vringo Has Sued ZTE Australia

“It is a truth universally acknowledged, that a patent troll in possession of a good portfolio must be in want of a victim.”

– Jane Austen, Pride and Prejudice and Patent Trolls

I am on the record, on this blog and elsewhere, as being of the opinion that Australia is not a jurisdiction in which the ‘patent troll’ business model can work effectively.  I have expressed the view, in particular, that the US litigation system, and related patent laws, make that country an almost uniquely happy hunting ground for patent trolls.

So, you might expect that I would have been surprised to learn that US-based non-practising entity (NPE) Vringo Infrastructure Inc has commenced patent infringement proceedings in the Federal Court of Australia against the local subsidiary of Chinese telecommunications equipment manufacturer ZTE Corporation.

I confess I was a little surprised, until I remembered who Vringo is, and where I had seen the company’s name before, and realised that this lawsuit is not typical ‘troll’ activity, but is more likely part of a global patent licensing strategy conducted at least partly for the benefit of the very much practising entity, Nokia.

As I shall explain further, I do not consider Vringo to be a patent troll – at least not when it comes to the patents at issue in the dispute with ZTE.  However, I have to acknowledge that a number of online media outlets have used the ‘t-word’ in relation to Vringo, e.g. smartcompany.com.au and itwire.com (and again, here).

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Tags: Australia, Licensing, Patent litigation, Patent pools, Smartphone wars, Trolls

Patent Pools – Some Not-So-Frequently Answered Questions

In our previous article, Fragmented Patent Pools Will Not End Smartphone ‘Wars’, we wrote about two separate initiatives intended to make patent licences more easily available, and affordable, for companies wishing to implement standard mobile communications technology.

These initiatives are known as ‘patent pools’.  This is not a new concept, and the notion of companies ‘banding together’ to share access to patented technologies, sometimes with anticompetitive effects, has existed for well over a century.

However, the contemporary structure of patent pools, generally intended to facilitate access to patents required to implement an industry standard or some other widely-desired technology, is a relatively recent development.  Modern pool operators are mindful of the anticompetitive potential of patent pools, and are careful to establish legal structures and agreements which do not fall foul of competition or antitrust laws and regulators.

Patent pool arrangements began to gain official sanction from competition regulators back in the 1990s.  In 1995, the US Department of Justice (DoJ) and the Federal Trade Commission (FTC) issued the Antitrust Guidelines for the Licensing of Intellectual Property (PDF, 230 kB), which highlighted the potential pro-competitive benefits of pools.  On 26 June 1997, the DoJ Antitrust Division issued a Business Review Letter in response to a request by the MPEG LA group, which was proposing to establish a pool to license patents essential to the implementation of the MPEG-2 digital video coding standards, which were in the process of being widely adopted for a range of commercial applications, including DVD-video, digital video transmission and broadcast, and digital video recording and storage.

The DoJ gave its stamp of approval to the proposed MPEG LA pool arrangements, and these have become a template for subsequent patent pools seeking to avoid violating antitrust and unfair competition laws.

While the idea of pooling patents seems simple, there are a number of subtleties that are perhaps not so readily appreciated.  With this in mind, we ask and answer a few basic questions about modern patent pooling arrangements.

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Tags: Licensing, Patent pools

Fragmented Patent Pools Will Not End Smartphone ‘Wars’

Depending on where you are in the (developed) world, the next generation of mobile communications networks is either already with you, or on its way.  Colloquially known as ‘4G’, it is more accurately termed ‘LTE-Advanced’, an upgrade from the Long Term Evolution (LTE), or ‘3G’ technology which is now widespread.  LTE-A is an improvement in every respect over 3G – higher peak data rates, greater spectral efficiency, reduced latency and increased throughput.

And, of course, there are more patents than ever before covering networks and devices capable of communicating using the full range of available standards.

Considering that the holders of patents covering the previous generation technologies seem unable, or unwilling, to resolve their existing disputes over access and licensing terms for access to standards-essential patents (SEPs), it may be difficult to imagine how there could ever be peace as the number of such patents – and associated patent holders – only seems to be increasing.

The creation of ‘patent pools’ – collections of SEPs owned by multiple proprietors, and made available as a block via a single licence agreement – may therefore be seen as an encouraging sign.  Two such pools have recently been established covering subsets of the LTE SEPs.  And while we would like to think that this is the beginning of a more peaceful coexistence among competitors in the mobile communications space, a closer look at the LTE patent landscape suggests that there is a long way to go before these pools will represent a realistic option for achieving a truce in the industry.

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Tags: FRAND, Licensing, Patent pools, Smartphone wars

Five Reasons Why Ars Technica’s Savaging of CSIRO is Appalling

A few days ago Ars Technica published a piece by Joe Mullin entitled ‘How the Aussie government "invented WiFi" and sued its way to $430 million’.  At around the same time, we published a post on the same topic – the CSIRO WLAN patent settlement – broadly based on the same facts, and yet of a very different nature (see The Story Behind CSIRO’s Wi-Fi Patent ‘Windfall’).

The fact of the matter is that, even trying to set aside our own Australian bias, Mullin’s article is a nasty piece, replete with snide insinuations giving the overall impression that CSIRO is some sort of patent troll with diplomatic connections, seeking to extract a ‘tax’ on behalf of a foreign government, from hard-working US companies and consumers, on the basis of a patent of dubious merit.

Since every part of this characterisation of CSIRO’s position is demonstrably false, we can only conclude that Mullin’s piece is an appallingly poor example of journalism.  And we are not alone in this view.  The article received so many negative comments that Mullin felt compelled to post a ‘justification’ addressing the criticisms (Responses and clarifications on the CSIRO patent lawsuits).

Of course, Mullin does not concede that he might have been unfair, or got anything wrong.  But we think he was, and he did.  Here are our top five reasons – in no particular order – why Mullin’s article, and his subsequent ‘justification’, are deserving of strong criticism.

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Tags: Australia, Inventions, Licensing, Politics, Public research, Trolls

The Story Behind CSIRO’s Wi-Fi Patent ‘Windfall’

windfall: noun 1. something blown down by the wind, as fruit. 2. An unexpected piece of good fortune. (Source: The Macquarie Dictionary.)

As has been widely reported in recent days, Australia’s CSIRO has settled outstanding patent claims against US telecommunications companies including AT&T, Verizon and T-Mobile for around $220 million.  The case against these companies has been ongoing for almost two years, although litigation involving the patent in question, which relates to technology underlying all commonly-deployed wireless local area networking (WLAN) systems and components, has a far longer history than this. 

So far, taking into account previous settlements with numerous device and component manufacturers – including HP, Dell, Intel, Microsoft, Netgear, Nintendo, Belkin, D-Link, 3Com and others – CSIRO has reaped over $420 million in income from its WLAN patent.

CSIRO – which stands for Commonwealth Scientific and Industrial Research Organisation – is Australia's national science agency, which lays claim to being one of the largest and most diverse research agencies in the world.  It started life as the Council for Scientific and Industrial Research (CSIR) in 1926.

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Tags: Australia, Inventions, Licensing, News, Patent litigation, Public research

The Fraught Issue of FRAND III: Antitrust and the Future of FRAND

In Part I of this series, we introduced a few background concepts, namely: FRAND licensing; royalty stacking; and patent pooling. In Part II we focussed on the recent political manoeuvrings of various interested parties, in particular Google, Apple and Microsoft. In this final part, we look at the tension between patents, FRAND licensing agreements and competition law, and what this might mean for the future of FRAND and the current disputes.

On 31 January 2012, the European Commission (EC) announced that it has opened a formal antitrust investigation into whether Samsung’s use of its standards-essential patents constitutes illegal anticompetitive behaviour.  It had been conducting a ‘preliminary investigation’ for some months, as part of which the EC had requested that both Samsung and Apple provide information regarding ‘the enforcement of “standards-essential” patents in the mobile telephony sector’.  Samsung’s response at the time was that it had ‘at all times remained committed to fair, reasonable and non-discriminatory (FRAND) licensing terms’ for its wireless standards-related patents,” and was cooperating fully with the EC.

Since then, both Apple and Microsoft have filed official complaints about similar behaviour by Motorola Mobility (with Microsoft’s complaint also naming Google).

The main competition concern appears to be over holders of standards-essential patents seeking injunctions based on those patents, which they have pledged to make available on FRAND terms.  As discussed in our previous article in this series, we cannot see why a patentee should not be entitled to an injunction in appropriate circumstances, such as when another party has refused to take a license on identical terms to other licensees.  However, Europe’s competition regulator, and companies that do not have large portfolios of standards-essential patents, may well see things differently.

In this final article in our series on FRAND we look at the antitrust complaints, the effect these may have on the balance of power in the ongoing disputes, and what this may mean for future developments.

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Tags: Apple-v-Samsung, Competition law, Europe, FRAND, Google, Licensing, Microsoft, Motorola

The Fraught Issue of FRAND II: the Politics of FRAND

In Part I of this series, we introduced a few background concepts, namely: FRAND licensing; royalty stacking; and patent pooling. In this article we will focus more closely on the recent political manoeuvrings of various interested parties.  Part III looks at antitrust issues and how the current disputes over standards-essential patents might be resolved. 


In particular, recent actions by Apple, Microsoft, Google and the European Commission are of interest:

1. the reported ‘leaking’ of a letter from Apple to the European Telecommunications Standards Institute (ETSI), dated 11 November 2011, complaining about ‘a lack of consistent adherence to FRAND principles’;
2. Microsoft issuing a statement promising to make ‘essential patents’ available to competitors at fair and reasonable licensing rates, and promising not to seek injunctions or exclusion orders against unlicensed companies making products that infringe these patents;
3. reports that Google was informing standards setting organizations that Motorola Mobility's standards-essential patents will continue to be available on FRAND terms after its acquisition of the company, followed closely by a ‘leak’ of Google’s actual letter to the IEEE standards body; and
4. the decision of the European Commission (EC) to open a formal antitrust investigation into whether Samsung’s use of its standards-essential patents constitutes illegal anticompetitive behaviour.

Notably, all of the companies identified above – not to mention the EC – are large, powerful and well-heeled.  They do not need to make promises or issue complaints, or launch investigations, in order to resolve their differences.  If they wished to do so, they could settle everything amongst themselves behind closed doors. 

Failing this, all of the companies involved are perfectly capable of funding the litigation necessary to have the courts decide their disputes for them.  And we should not forget that this is the role of the court in civil litigation – to reach decisions, based on the law, about disputed matters coming before it, and to make orders as to how the parties are to settle their differences.  In short, parties go to court to get an adjudication because they could not – or would not – sort their issues out for themselves.

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Tags: Apple-v-Samsung, Competition law, Europe, FRAND, Google, Licensing, Microsoft

The Fraught Issue of FRAND I: A FRAND Primer

This is the first of a three part series of articles.  Part II looks at recent political manoeuvrings of various interested parties, in particular Google, Apple and Microsoft.  Part III covers antitrust issues and how the current disputes over standards-essential patents might be resolved.

Readers who have been following the various mobile device patent disputes over the last few weeks will almost certainly have encountered the term FRAND (‘Fair, Reasonable and Non-Discriminatory’) in relation to patent licensing, and the rights of patent-holders – such as Samsung and Motorola – to sue competitors – such as Apple – for injunctions barring sales of competing products.

However, those not involved in patent licensing might never have heard of FRAND until recently.  A few time-limited Google searches for the term ‘FRAND licensing’ reveals 345,000 results for the past year, with 160,000 for the past month.  Going back, however, there are 104,000 results for the previous 12 months, and only 74,000 for the 12 months prior to that.  Additionally, while the older results are largely legal texts, academic commentary and policy documents, recent results come primarily from the media, including traditional mainstream outlets, as well as online sources such as industry, trade and technology news sites and blogs.

Thanks to some highly-publicised actions by some high-profile entities, FRAND is now pretty much mainstream, at least within the technology media.

The tenor of much recent online commentary is to the effect that the use of FRAND, or ‘standards essential’, patents as weapons in the patent ‘wars’ is at least unethical, probably unconscionable, and possibly illegal.

But before you pick sides in the debate over FRAND, we think there are a few matters you need to mull over, which are not getting the airing they deserve.  And the first, and most important, of these is that most of the current fuss over FRAND is political, not legal, and its media profile is largely the result of carefully-executed PR work by the main players, including Apple, Google, Microsoft, and even the European Commission.

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Tags: Apple-v-Samsung, Competition law, Europe, FRAND, Google, Licensing, Microsoft

Samsung Appeals, Retaliates, in Patent War With Apple

Last Friday, we reported in detail on the published judgment of Justice Annabelle Bennett, in the Federal Court of Australia, granting Apple a preliminary injunction against Samsung’s Galaxy Tab 10.1 (see Samsung’s ‘Eyes Wide Open’ Sinks Australian Galaxy Tab 10.1).

While we were doing so, Apple and Samsung were back in court arguing about the scope of the injunction.  As reported by Fairfax Media (Apple fails in new Samsung court bid), Apple’s lawyers argued that the injunction should be broad enough in its terms to prevent Samsung from launching any new tablet device, and expressed concerns that the Korean company would simply launch a near-identical problem under a different name.  Samsung, for its part, rejected this argument, pointing out that a broad injunction could impact upon products already on the market in Australia – such as the Galaxy Tab 7 and 10.1v – about which Apple has not complained.

Unsurprisingly, Justice Bennett – who indicated earlier in the proceedings that she would entertain issuing only a narrow injunction – rejected Apple’s submissions.  The Court Orders require that Samsung ‘will not import, promote, offer to supply, supply, offer for sale or sell in Australia the device, examples of which were supplied by the solicitors for the respondents to the solicitors for the applicants on 25 August 2011 (Australian Galaxy Tab 10.1)’, or ‘any version of a Galaxy Tablet 10.1’ which includes the ‘heuristics’ feature or ‘touch screen’ panel as demonstrated to the court, and allegedly covered by Apple’s patents.

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Tags: Apple-v-Samsung, Australia, FRAND, Injunctions, Licensing, Smartphone wars

That Dilbert Strip – What It Tells Us About the ‘Smartphone Wars’

It is all over the internet, and it’s funny, so it might as well be here, too – Scott Adams’ take on the current fad amongst tech companies for suing one another for patent infringement.



Of course, it spoils the joke to analyse something like this too deeply, but we cannot help but comment on the fact that when something as uninteresting to the general public as patent law makes an appearance in the ‘funny pages’ of newspapers worldwide, something unusual is going on.

However, contrary to much of what you might read on the web these days – including contributions from the likes of Google – the problem with the patent system is not that it is hopelessly broken. It clearly is not, although like most things in the real world, it is far from perfect.

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Tags: Computer programs, Humour, Licensing, Litigation, Smartphone wars

Apple v Samsung: Google Says It’s All About Android

As the ‘patent war’ over smart phone and tablet devices continues, Google Senior Vice President and Chief Legal Officer David Drummond has publicly alleged that legal actions by ‘Microsoft, Oracle, Apple and other companies’ against Barnes & Noble, HTC, Motorola and Samsung are really all about Android.

In a posting on the Official Google Blog, Drummond states:

…Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents.

So what is Drummond trying to say here?  That it is all a big conspiracy, and poor little Google is the target?  That companies with technologies which compete with Android have formed an evil cartel to squash competition?  This all seems a bit rich, and Google’s claims that this is really about their technology, and the incumbents’ fear and loathing of the upstart, smack somewhat of the new kid on the block crying out for attention.

In other words, all this whining is neither very attractive, nor particularly mature.

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Tags: Android, Apple-v-Samsung, Australia, Computer programs, Google, Infringement, Licensing, Litigation, Smartphone wars

Why Has Oracle Sued Google?

On Thursday, 12 August 2010, Oracle America Inc filed suit against Google Inc in the U.S. District Court for the Northern District of California, contending that Google's Android software for mobile devices violates Java patents and copyrights that Oracle acquired when it bought Sun Microsystems Inc back in January.  (Read the complaint here.)

Oracle America representative Karen Tillman said last Friday that "in developing Android, Google knowingly, directly and repeatedly infringed Oracle’s Java-related intellectual property.  This lawsuit seeks appropriate remedies for their infringement."

This appears to be the story of a clever strategy by Sun/Oracle to monetise intellectual assets (patents, copyrights, and other intellectual capital embodied in the Java platform) through open-source licensing, and an ambitious plan by Google to work around that strategy.  Time will tell who prevails, but in the meantime we will take a look at the story so far.

 

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Tags: Computer programs, Licensing, Open source, Oracle v Google, Smartphone wars