More datapoints for the legally inclined....Qualcomm's response to Nokia's request for a stay at the ITC. There is also a response from the ITC Staff but it is entirely confidential.
My initial reading of this is that Qualcomm didnt bring up any particular GSM patents for licensing....but did reserve that right for after the non-assert was over. It seems to me that should preserve the right for Qualcomm (absent any requirements that might have come from ETSI membership).
edisweb.usitc.gov
Instead, Nokia claims that QUALCOMM should be estopped from taking actions that are
expressly permitted by the CDMA Agreement. Nokia does not allege that QUALCOMM ever
stated or promised that it did not have or would not assert patents covering Nokia’s GSM
products. l5 Instead, as discussed below, Nokia’s “estoppel” defense is based entirely on alleged
inferences.
These alleged inferences are based almost exclusively on things that QUALCOMM
allegedly did not do:
0 QUALCOMM did not tout the benefits of GSM, only of CDMA. l6 However,
none of the quoted statements says anything about whether QUALCOMM holds
any IP rights covering GSM technology.
0 QUALCOMM did not mention GSM coverage of its own patents in a FAQ17
posted on the Internet about whether it had sufficient IPR coverage to offer its
own products. l8 In an effort to overcome the obvious non-sequitur of this
argument, Nokia contends without support that “industry standard practice” is to tout one’s own patent portfolio in response to such FAQs.
QUALCOMM did not initially assert patents against Nokia’s GSM products.’’
Evidently, Nokia’s theory is that, because practically everyone else who has
claimed patent infringement by Nokia has focused on the “deep pockets” of
Nokia’s GSM products, QUALCOMM’s initial choice to do otherwise justified
an inference that it could not or would not everpursue Nokia’s GSM products for
infringement.
- QUALCOMM delayed in declaring its patents to ETSI (the European
Telecommunications Standards Institute) as GSM-essential, thus lulling Nokia
into a false sense of security that QUALCOMM would not assert patents against
Nokia’s GSM products in the future.20 Nokia’s account of being misled is flatly
contradicted by 0 6.1.1 of the CDMA Agreement, which expressly reserves
QUALCOMM’s right to assert patents against Nokia’s non-CDMA products -
including GSM products - after the expiration of the three-year non-assertion
period.
0 When GSM came up during negotiations, QUALCOMM did not mention any of
its own patents except the SnapTrack patents.21 It would be more accurate to say
that when the SnapTrack patents were discussed, both GSM and CDMA were
explicitly mentioned.
[
allegation. [
0
]22 The face of the agreement disproves this
A draft CDMA Agreement identified “the only patents that Qualcomm claimed
might potentially read on GSM.” 23 This is merely a statement of the conclusion
now allegedly inferred by Nokia. Nokia does not cite any portion of the draft as
either purporting to provide a list of GSM patents, or as making the representation
attributed by Nokia. |
