It's that gray area that Apple has fully embraced. Today, Apple was able to temporarily halt a ban on its products in Germany by invoking a frand claim against Motorola Mobility. Motorola had won the ban last month when a German court ruled that Apple had illegally violated an essential patent related to 3G UMTS technology. Apple claimed it had been attempting to work out an agreement but that Motorola had violated its obligation to act fairly in negotiating terms. "Apple appealed this ruling because Motorola repeatedly refuses to license this patent to Apple on reasonable terms, despite having declared it an industry standard patent seven years ago," said an Apple representative.
Motorola argued that it had approached Apple in 2007 with fair licensing terms and attempted to work out a deal for three years with little result, But Apple's defense is fairly positive, Its argument that it is entitled to a licensing deal under frand was enough to win a speedy halt on sky iphone case Motorola's ban, despite Motorola's protests, "Apple's refusal to negotiate in good faith, as well as their aggressive litigation campaign against Android, left Motorola Mobility with no option other than to seek to enforce the company's rights and patent portfolio," said a Motorola representative, The company added that it remains committed to licensing rather than litigation..
Apple and the Android players have opted to use different strategies in their patent offensives. Companies such as Motorola and Samsung have gone after Apple using industry-standard patents. While these are vitally important pieces of intellectual property, they also leave these companies open to frand claims by Apple. Apple doesn't appear to have invoked any essential patents in its lawsuits against the Android companies, said Florian Mueller, a legal consultant who has done work companies such as Microsoft and runs the blog Foss Patents.
The counterargument is that because those patents are so essential, they make for a more potent case against Apple, Frand could potentially just be a stall tactic for Apple, Because frand patents are based on technology that everyone is supposed to have fair access to, the use of them in patent litigation comes with many pitfalls, "The Android camp would sky iphone case like to leverage those kinds of patents to reach a state of mutually assured destruction, but that's a very problematic strategy," Mueller said, "The fallout from this would far transcend the current mobile patent wars."..
For instance, Samsung's aggressive use of essential patents in its lawsuits could come back and haunt it, with the European Union focusing its antitrust lens on the company's recent activity. The EU's European Commission arm is attempting to determine if Samsung is charging unfair rates or holding back on access to patents to stifle competition. The European Commission's decision on Samsung could have a ripple effect on how patents are used in litigation. Frand was set up for the good of the industry. But the essential patents that fall under its guidelines have increasingly been used as weapons, which flies in the face of the original intent of frand. Mueller says frand does allow for a light form of patent enforcement--but not a more heavy-handed approach.
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