Thanks qveau for the explanation. It seems the question turns not on intellectual property, but functionality. Microsoft has intellectual property, being the software used to drive the user interface called a browser. Another company, such as Netscape, has their own intellectual property, which also drives a browser, of perhaps almost identical appearance.
Under your description, Microsoft can reasonably say that they are selling a license to use one or all of their intellectual property, just as QUALCOMM does. If somebody chooses not to use the browser, but installs a Netscape browser, Microsoft doesn't have a problem with that, provided they are paid their licence fee for any or all of their intellectual property. Same as QUALCOMM. Somebody might use the power control patents, but not the radioOne patents. Which is okay by QUALCOMM, provided they are paid their licence fee for any or all of their intellectual property.
Microsoft doesn't say that a buyer of their intellectual property isn't allowed to use Netscape instead of the Microsoft browser. People can do what they like. As long as they pay the set fixed fee for one or all. I get Freecell bundled in there too. There isn't a separate price for that. I get other software too. All bundled in together for one fixed price. Just as with QUALCOMM, I pay for them all, whether I use them or not.
If I had to separately buy a radioOne equivalent licence from somebody else, and it was included in my all-in-one price from QUALCOMM, I would be unlikely to buy it. Apart from the money, the radioOne would be likely to integrate well with the other QUALCOMM technology. Similarly, I'd be inclined to use the Microsoft browser because it would be likely to integrate well with the other Microsoft software. Also, the other browser equivalent would cost money.
It seems to me to be putting a very fine point on the pencil used to separate the two situations. I suppose with the QUALCOMM situation, the buyer doesn't actually take delivery of the technology in the form of bits taking up space in their equipment, so it's different in that respect.
When software is stored on remote servers and used only when required, the difference becomes trivial.
I think it's a stretch to say QUALCOMM is giving away the tied products. In fact the products are one big bundle and people can only buy all of them, or none.
I don't think people list the particular patents they want to use, then have to pay extra if they decide to use some others too. I doubt they even have to go back to QUALCOMM to seek an extension of the licence agreement to include the other patents. People automatically get the right to use new patents which QUALCOMM develops, as far as I understand it anyway.
That doesn't seem a good idea to me because if they develop something really great, which everyone on Earth wants to use, and it's worth $1000 per person, it seems silly to give it away in the bundle of previously developed patents.
<the distinctions are that QCOM will sell one without forcing you to buy them all, and even more importantly, the remaining patents they are willing to throw in for free if you want them are not like browsers in the sense that other people don't "make" those patents and compete with QCOM in the sale of them. >
Neither does anyone "make" a Microsoft browser. They make something similar. Microsoft's technology is their own invention, even if the functionality is almost the same as doing the job in another way. The customer uses Microsoft technology just as much as somebody uses QUALCOMM's technology.
I'm not being deliberately obtuse and I can see some nuances differentiating the two situations, but the differences seem so slight as to be pathetically pedantic. I really wouldn't want to try to explain the differences to a skeptical audience.
Similarly on the predatory pricing aspect. Customers are obviously harmed by QUALCOMM's pricing as competitors can't enter the market solely on some equivalent technology which QUALCOMM might invent this week, because that technology will be given away, obviously below cost, along with the rest of the technology portfolio which has already been enjoyed. A competitor would have to charge something for their equivalent, which they might also develop this week. So they couldn't enter the market.
This perpetual leveraging at one fixed license fee and royalty seems an excellent way of keeping competition out. Maybe I've got it wrong and in fact, the up front licence fee is for particular listed technology and if the buyer wants to use other patents, they have to negotiate another up front licence fee, but once they've done that, the royalty is just the same old royalty. That would certainly make the new technology not free!
As I say, I'm not arguing just for the fun of it. Yes, I can see there are subtle differences. They seem too subtle to me for the average jury or even judge to make sense of, especially if it was "Get QUALCOMM" day and there was a LOT of money sloshing around to be had and QUALCOMM's technology was dominating the world, with a monstrous toll gate on something everyone simply had to use.
I wonder if that up front licence fee is an out. That makes sense to me. It would also solve the issue of pricing a very valuable new technology. Up front fees for a very valuable technology could be set very high and royalties just the usual, all included.
I hope that's the situation. I suppose it is.
Mqurice |
