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.