Lately, Apple has some issues with Samsung these days and even Samsung has gotten a couple punches in on Apple. Now Motorola Mobility, which was purchased by Google this year, has an issue with Apple and this week won an injunction banning the sale of iPhones and 3G equipped iPads in Germany. This comes from an infringed patent that Motorola owns that has to do with cellular data transmission. Part of the issue is that the cellular data transmission must be licensed on “fair, reasonable, and non-discriminatory”, or FRAND, terms. The infringement could force Apple into a licensing agreement whether FRAND is an issue or not, because of “past infringement” according to the ruling.
Apple is not a stranger to the FRAND agreement as they have worked out a couple of them with Samsung in France and the Netherlands. More or less, the lawsuit regarding standards-essential patents could be considered a violation of anti-competition laws. A FRAND agreement would solve the issue and the lawsuits would not be needed at that point. If a limit is not set on lawsuit regarding these types of patents, larger companies could use the lawsuits to keep smaller companies out of the same market, even after the company has built products using the patents.
Apple should not be surprised about the injunction as Motorola said they went to the company back in 2007 when the first iPhone was released regarding the licensing of the patent. The vice president and general counsel for Motorola Mobility said, “We have been negotiating with Apple and offering them reasonable licensing terms and conditions since 2007.” At the time, Apple did not think the terms were fair and the issue went into the court system. Motorola went after Apple and filed complaints alleging Apple infringed on 18 patents. Motorola filed other infringement suits over European patents, as well.
Certain conditions do apply for a FRAND agreement in Germany and that is that a company must have made an offer to license the patents in question and posted a bond regarding the future royalties that are expected to come from the agreement. Apple said they made the offer for the patents, but included a stipulation that would invalidate the patents if Motorola made claims against Apple regarding older infringements not covered by the current FRAND rate that was agreed upon.
