The Nokia amended complaint is fascinating. In detail explains its French law theory of how it gets a country by country, patent by patent FRAND licensing. But, if it's applied then why isn't each patent worth 2-6%. so the overall royalty is the same or more? And, it raises the question about the other terms of a licensing agreement. A simple way to resolve the conflict is not patent by patent but as a bundle of essential patents for each standard, e.g., UMTS, 3G, 2G, etc. rather than on a patent by patent basis. The agreement to license on FRANDly basis doesn't itself say patent by patent; that is Nokia's gloss on its interpretation of French law that there can only be one subject matter for the license. Second, the pleading, in a way, bolsters Qcom's argument that the 2001 licensing agreement supersedes FRAND. The French forced contract to third parties, it seems to me, would not apply where the parties enter a licensing agreement as they did in 2001. Nokia has the problem that it performed in contradiction to its new argument; when a party interpets a contract in a certain way and performs that way, courts generally take that pretty seriously as to what the party expected from eg FRAND. Nokia cites a history of negotiation that it says supports its new position, but I am not sure it was clear enough to anybody that it wanted a patent by patent deal. Still, if they are going to pick and choose, then each patent is looked at separately because its a single subject. That to me is its achille's heel. It can't get bundled pricing if it wants to pick a few patents.
AS I have stated before, its argument that FRAND absolutely prevents injunction, and restricts Qcom to compensation only, is based on the idea of hold up. But, the problem is a two-way street, because Nokia is using that to hold up Qcom by not offering a proper level of compensation. Yoiu have to ultimately be able to enjoin a patent implementer or the latter has no incentive to negotiate.
Remember also, that the commitment to the ETSI is merely to use reasonable efforts to offer a FRANDly deal. No breach occurs unless Qcom is found not to have done so, and I find it difficult to believe that Qcom has not made reasonable offers. Only this new interpretation of French law supports Nokia's argument that Qcom has not made reasonable efforts. I would love to know something more about third-party beneficiary contracts under French law. |
