qveauriche,
I have read in the past that the patent expiration issue is neutralized by provisions in the licensing agreements which set a term that extends beyond the patent expiration date to a date that is more likely to be the anticipated lifecycle of the standard. Therefore, QCOM has an enforceable contractual right to collect royalties even after the IP rights have expired. Such a provision, I would think, would be supported by the consideration of licensing the standard during the IPR period, and is therefore enforceable.I don't know if this is true. Perhaps someone can clarify that issue for us.
As an attorney, maybe you can fill us in. I don't think that a patent holder can license in a way that it is collecting a royalty for the patent beyond the the term of the patent. It seems to me that would be clear patent misuse. Most patent licenses therefore have a provision that royalties from any expired patent cease upon expiration of the term of the one particular patent.
My understanding has always been that QCOM does not even get anywhere near that kind of patent misuse issue. What I believe QCOM does is throw all of its IPR related to a particular genre of CDMA (IS-B, CDMA2000 1XRTT, CDMA2000 EV-DO) into a pot, makes a Qualcomm CDMA stew, and then licenses out the right to make or resell that strand of Qualcomm CDMA stew. (It also supplies components of the stew that you can also buy from QCOM.) Any one patent of an ingredient in the soup may expire, and then I believe that the royalties attibutable to that particular patent also expire
I don't think that QCOM licenses any patent for a period beyond the term of the patent, and I believe such a contractual provision would be unenforceable beyond the term of the expired patent. But even after expiration of one particular patent's term, there are other ingredients in the Qualcomm CDMA stew that you probably still need to use and pay licenses for.
To extend the soup analogy, the patent on carrots may well expire, and then QCOM cannot collect royalties attributable solely to the carrots. But there is still the patents on the broth (the 5-10 patents which QCOM holds that are essential to CDMA soup), the onion patent, corn patent, the tomatoes patent, etc. The license would apply if you want to continue to offer your restaurant's customers that rich mixture, with or without carrots that may no longer be covered by a patent.
Meanwhile, QCOM is back in its central kitchen. It may come up with new ingredients that it slips into your Qualcomm CDMA stew. If the recipe changes a bit, you still get to eat the particular flavor (IS-B, CDMA2000 1XRTT, CDMA2000 EV-DO, etc.) of soup you licensed.
The bet of the LTB&H crowd is that QCOM is smart enough to progressively cook up something new so that the expiration of any one particular patent in its dynamic portfolio is not consequential.
saukriver |
