Thickets are all bad

Summary: Putting in perspective Motorola's SEPs, which the FTC has just ruled on in the United States

Standard-essential patents, better known as SEPs, are anticompetitive and we have criticised them all along (there are 75 posts in our RAND section). But sometimes they are being used for AstroTurfing by the likes of Florian Müller, who conveniently ignores the real source of the abuse. That would be his employer Microsoft that hires him to spout out nonsense and foist that onto journalists. Android, being the leading operating system of our time (at Microsoft's expense), is under attack from Apple and Microsoft, which now work together (publicly even) to stop Android. They are using patents. A pro-Apple site says that some "newly published patent application from Apple describes a "power management for electronic devices" system, which detects the usage patterns of a mobile phone and estimates the required energy needed to run the phone between charges."

We have already seen the Microsoft-occupied Nokia using such patents against Android in Europe, so there is a pattern here. Based on this article and another about Motorola, the fight against Android increasingly consolidates on patents as the means, coupled with antitrust complaints (via Microsoft proxies like Nokia). Groklaw says that:

The ban on injunctions on the Motorola FRAND patents has been lifted, although there remain certain restrictions. What does it mean? It means, to me, that there have been reverberations from the ITC decision recently to grant an injunction against Apple for reverse patent hold up, rejecting its defense that Samsung was violating its FRAND obligations by asking for too much to license. That told the world that injunctions are available to FRAND patent owners. Second, I think it means that the Microsoft/Apple/FOSSpatents campaign to make the world believe it should be impossible for FRAND patent owners to seek injunctions is failing. The tide is turning. Third, this is an order based on a settlement agreement, so it doesn't apply necessarily to anyone else but Google's Motorola patents. But it should have an impact on litigation currently in progress.

This was also covered by Andy Updegrove, who said that the FTC "issued the Final Order in its action against Google involving that company’s assertion of certain “standards essential patents” (SEPs). Google gained control of the patents in question through its earlier acquisition of Motorola Mobility and asserted them against various mobile device vendors. Those parties cried foul, claiming that the terms that Google had demanded were inconsistent with the obligations assumed to license the SEPS on “fair, reasonable and non-discriminatory” (FRAND) terms to all implementers of the standards in question.

"It is essential to remember that Google picked up Motorola and picked some patents only after it had been repeatedly attacked by CPTN members like Oracle, Apple, Microsoft and their patent trolls.""Google agreed to a settlement with the FTC this past January, following which the FTC released a draft settlement order for public comment. The Final Order just released includes a variety of adjustments and changes resulting from the 25 comments received during the public comment period. The 34 page Final Order can be found here and a seven page letter, sent to each commenter and explaining the changes made, is here."

Updegrove added that "[b]ecause the FTC and European Commission regulators are urging standards setting organizations (SSOs) to take action to diminish the current wave of FRAND disputes, these final materials will be read with great interest by SSO members (and their lawyers). Along with the court decisions that continue to issue in FRAND cases, they will have a significant impact on the evolving discussion about what rules, if any, SSOs and their members will decide to enact in reaction to the requests of regulators, and to their own concerns regarding uncertainties in the marketplace. Despite the desire of the regulators to see action sooner rather than later, that process is likely to take years to fully mature."

Complaints on a FRAND/blanket basis have merit when it comes to patent stacking by Android foes. It is essential to remember that Google picked up Motorola and picked some patents only after it had been repeatedly attacked by CPTN members like Oracle, Apple, Microsoft and their patent trolls. Don't be misled by spin from Microsoft, Apple, and mouthpieces of theirs (like Müller). ⬆