Essential patents vs. relevent(sp?) patents - I do not know of any such legal distinctions, so I have to guess what is meant here. My guess is that 'essential' patents are those that all conceivable versions of W-CDMA (as spec'd!!!) must use, while 'relevent' patents are those which could be used (i.e. not explicitly called out in the spec), or might be considered infringing. Given that definition, were I Nokia or Ericsson or ... (anyone not Qualcomm, and especially those without a full CDMAOne suite) I would design W-CDMA such that as many of Qualcomm's patents are moved from the 'essential' category to 'relevent' and to make as many of Ericsson's, Nokia's, NTT's ... patents 'essential'. Were I really good I could even then claim that I owned as many 'essential' patents as Qualcomm.
But this is a very serious distortion, and as I have said many times, numbers of patents are very very deceiving. The best way to illustrate this is with a somewhat hyperbolic example:
Suppose that Company X owned a patent such that no one could build a CPU without X's patent. But Companies A, B, and C have between them a patent on the color green for computer screen backgrounds, a particular non-QWERTY keyboard and a particular instruction set for a CPU. Given that they are three companies they can control the standard for the next computer and they will inevitably try to require a green computer with the non-QWERTY keyboard and their instruction set. Now Company X has only one of four essential patents. Is it entitled to only 1/4 of the royalties. No? Because company X can just walk away - "Ok, I'll do my own with a violet screen, a QWERTY keyboard and my own instruction set." Companies A, B and C do not have that option, and although they will never, ever admit it, and sometimes they may even deceive themselves, eventually they will figure it out. But this requires steely nerves in a serious game of chicken by Company X, since there isn't a good way to litigate this - at least within patent case law. (There may be some sort of restraint of trade issue, or some such, but that is way way outside of my knowledge base.)
Again - numbers of patents is very very deceiving.
Clark |
