Fine them, but make sure it is proportional to the mistake

The news is that Microsoft is set to be fined by EC on non-compliance of its IE settlement.

Yes, they breached the agreement. Yes the excuse that it was a technical glitch is not acceptable. It is not acceptable because  Microsoft is not adhering  to agreement set by one of the biggest (quasi-) government body and thus has the duty to triple-check that they are in compliance.

However, on the issue of IE, Microsoft is a different creature from the time the agreement was struck. In particular, it is not so intransigent anymore. One should take that into account. Moreover, the harm caused by this non-compliant, while still large, is not as big deal as it was back in the 2000s.

Thus, by all means, fine them to cover the damage they had done, plus a bit extra as a penalty to make it not worthwhile for them to repeat what they had done. Make an example out of Microsoft? I do not think it is necessary. The risk that punitive fine making the EC looks like a overbearing enforcer is not worth the money collected. Nowadays we talk about rehabilitation, not retribution. Thus, we should acknowledge that Microsoft behaviour had changed since the agreement and take that into account when setting the level of the fine.

There is no need to worry that the world at large will not be reminded that fulfilling one’s obligation to the EC is very important. The size of a proportionate fine will already make sure it makes it to the headlines and not buried in the business pages.

Samsung should sue Apple just to clarify what FRAND means

According to theRegister, our favourite self-styled FOSS Patent expert advises Samsung not to sue Apple over 4G/LTE essential patents.

I disagree. I say go ahead. The general point of having a patent is to bring  it to bear on others. Samsung has every right to sue Apple if it thinks it patents are valid and Apple infringed on them. Samsung also have every  right to use those patent to its advantage in any dealing with Apple, especially when it comes to patent cross-licensing agreements. Suing Apple is one way of exercising that advantage so Samsung should use it as it sees fit. Finally, at this point, nobody can say Samsung was not provoked by Apple into suing the latter.

However, I  think the most likely patents Samsung will throw at Apple are standard-essential patents licensed under Fair, Random and Non-Discriminatory Terms (FRAND). This is also where my personal interest comes in. I think what constitute FRAND needs clarification, on a jurisdiction-by-jurisdiction basis if need be.

The closest we get into a proper look at FRAND is in Germany with the Motorola and Apple lawsuit. Both eventually settled the case out of court that leaves one important question unanswered, i.e., what is acceptable behaviour under FRAND? In that case, the sticky point is Apple wanted to cure its past infringement by limiting the royalty it paid to the agreed rate. I do not think that is fair to the patent holder. Infringement need to be punished. Not to the extent of outright ban but should be more than the  royalty would had been if a FRAND agreement is in place.

On the other hand, the patent holder should not be permitted to deny other party a license by demanding over-the-top royalty or tie the FRAND promise  to other  things, such as cross-licensing.  How do we strike a balance here?

Also, if a party is found to had infringed a FRAND license, how do we deal with the infringement in a way that punish the infringement, but still remain fair to all parties.

We need lawsuit  or a set of lawsuits to bring various issues with  FRAND licensing issues out in the open for a proper discussion of what it means today. The end game is to update  FRAND licensing practice. That will be to everyone’s benefit.

In my view, FRAND has its place in the licensing world. What it means does vary from industry to industry.  The best outcome here is for the court to establish the bottom line, and then for standard-setting bodies to publish and enforce a set of guidelines/regulations to ensure FRAND is indeed Fair, Random and Non-Discriminatory. Right now, we have an opportunity to establish the bottom line, we should take it.