You disagree with this: To my mind, Nokia's assertion is that the value of patents in a patent portfolio is distinctly non-linear. Which means that in any patent portfolio, a very small handfull of patents are truly very valuable, and the rest have negligible individual value, but might, if numerable, add value by virtue of being numerous.
I don't understand your disagreement.
Firstly you say "If your contention was correct, there would have been no need for the expert to make the comment about the difficulty of valuing individual patents"
Perhaps my contention is more clear if you substitute the word "painting" for "patent", after all, some paintings are more valuable than the others. A single Monet might be worth more than the entire year's production of the Middle Vale Primary School art class, for example.
An IPR portfolio, when translated to the art metaphor might be like a gallery containing a few pieces by Monet, Renoir or Picasso, augmented by several outstanding(?) works by the graduating class of the New York Acadamy of Fine Art, and rounded out with countless works of the owner's daughter, friends, and associates.
Like its patent portfolio cousin, such a "painting portfolio" would be non-linear with respect to the distribution of value between various paintings. Simultaneously, most art experts would agree that predicting the actual purchase price of each individual piece in advance (including perhaps a spectacularly colorful finger-painting by the owner's kindergarten daughter), let alone the whole portfolio all together... well, it is extremely difficult.
Ergo, I really don't see a conflict between non-linearity and difficulty determining value. In patents or paintings.
You also wrote "The fundamental tenet of [patent proportionality] is that every essential patent is equal."
This is absolutely not true. In actual fact the fundamental tenet is that the *average* value of one large bundle of patents is approximately equal to the *average* value of another bunch of patents, to the extent that it isn't worth making a more accurate determination (e.g. valuing every patent one at a time). This is less easy to prove as malarky as you might like, although the malarky factor may not be lower than any other method for valuing a patent portfolio.
Nevertheless, you and I do agree that patent proportionality is a completely dumb metric to use. Our reasons may differ. The reason I oppose it is not on merit, but on usefulness. Basically, if we adopted the method, then we'd see patent factories erupt in a numbers game. To sweat the art metaphor, if painting-proportionality was the metric by which galleries were measured, galleries the world over would be knee deep in kindergarten finger paintings before long.
As far as a judge ruling in favor of Nokia's position as undermining FRAND... I'm not sure about that. If I am a rental car company, and I agree to rent you a car at a fair price, you might flinch if I forced you to rent my whole fleet, even if it was at the same price I rent my fleet out to all the other taxi companies.
It seems to me that Nokia's argument is that they should not be forced to pay the same royalty rate as everyone else, in part because they have already paid for some of the licenses for which others are currently paying, and in part because they should be credited for some of the IPR which Qualcomm requires. Therefore, that is not FRAND. As this is the only offer Qualcomm has put on the table, and it is not FRAND, Qualcomm has not yet met their obligations through ETSI.
This is *not* an unreasonable argument. While it ultimately might not be decided in Nokia’s favor, there is a non-zero risk that it might. |
