As I see it, the argument that injunctions are not available if the patent has been declared to ETSI is a reach.
Nokia's argument is more subtle and much stronger than this.
Nokia is arguing that Qualcomm has offered it irrevocable licenses on FRAND terms, through ETSI, for each of the declared "Essential IPRs".
Furthermore, Nokia claims that they accepted, by implied consent, each of the licenses offered by QCOM, through ETSI, that they actually do implement, and they have not accepted, by implied consent or otherwise, any of the other offered licenses. Consequently, they *do* have an irrrevocable license to the Essential IPR that they are implementing, so they can not be prevented from using what they have a license to use, by injunction or otherwise.
Nokia is claiming that what is in dispute is price. They admit they owe Qualcomm a FRAND price, but that under French Law it is now up to Qualcomm to inform them of which licenses offered to Nokia they require Nokia to pay for, and, for each of these licenses, the amount to be paid. So far, Qualcomm has refused to do this (I suspect they have been attempting to assert a one-price-buys-all proposal instead).
The corrolary is that Qualcomm can not expect to be paid for any of their (multiple) licenses until they have declared a price for that license to Nokia which fits within the ETSI interpretation of FRAND, and therefore it is Qualcomm's fault that Qualcomm isn't being paid, therefore no injunction should issue.
In other words, I read this as a negotiating tactic. I read it as NOK saying to QCOM "Unless and until you provide unbundled pricing, on a patent by patent basis, which of course we will dispute on a patent by patent basis, you can take your threat of injunctive relief and shove it... Now, about that discount...". |
