OK, I am running out of bandwidth to reply to all of the replies... but I am enjoying the dialogue and it is forcing me to think very carefully. Your post raises most of the questions raised by everyone else, so apologies to everyone else to whom I don't respond.
I think I addressed the important logic in my post to JGoren, and I think we would be remis if we lose sight of the big picture.
IF QUALCOMM BEGINS TO UN-BUNDLE THEIR PRICING, THEY ARE TOAST.
It is all well and good to pretend patents are like kleenex or donuts and are therefore cheaper by the dozen. The practical reality is that *a scant few* patents are valuable. If Qualcomm does not have to bundle the patents, then they can avoid having to point out which *few* of its patents are worth something, thus avoiding either discounting their overall pricing strategy (by the defense of "I don't need that one, so I'm not paying for it"), or attracting a concerted invalidity attack. Both of these will ripple destructively through Qualcomm's business model, both are to be avoided.
IF QUALCOMM CAN'T INVOKE THE "NONE" PART OF "ALL OR NONE", THEN THEY LOSE BARGAINING POWER OVER NOKIA.
If Nokia's theory that Qualcomm can not *not* offer them licenses, then Qualcomm can not significantly harm Nokia. "All or Some" is an entirely different proposition than "All or None". The threat of injunctive relief is a patent holder's weapon of last resort.
By neutralizing this weapon, at least in respect to essential IPR, Nokia can stall for an indeterminate time. This is not good for Qualcomm.
FOR SO LONG AS QUALCOMM IS SUCKED INTO THE DEBATE OF WHAT IS AND ISN'T FRAND, QUALCOMM IS IN REVENUE PURGATORY.
It doesn't matter so much whether all at X% or one at a time at Y% is or isn't FRAND. If Qualcomm is sucked into this argument, shareholders are the losers. As long as Nokia has a plausible argument that the prices it is being offered are not FRAND, they have a valid issue for trial before the courts. This is such a quagmire that resolution could drag on for years without resolution. And there is so much money at stake that a fraction of what Qualcomm is suggesting Nokia owes them will keep an entire stable of Nokia laywers busy for an indeterminate period of time, whilst simultaneously sending yet another stable of lawyers a chunk of cash that could otherwise fuel profits and dividends and stock price appreciation and other things that bring folks like me to the market. Meanwhile, Qualcomm suffers uncertainty in its business model and Qualcomm's stock languishes. Qualcomm may be absolutely right that its terms being offered to Nokia are indeed FRAND, but still lose more economic value for shareholders in the process of winning that victory than losing quickly and inexpensively in the first place. Pyrrhic victories make bad investments. |
