I was explaining that although QUALCOMM has done the same thing that Nokia was arguing, [heaps more patents since 1992], that is irrelevant.
There we agree...
what matters is not the quality of one poxy little obvious patent, but the market and market power that that one little patent, or 5,000 patents, provides access to
And again, we agree. It's all about market power.
In which case, what is FRAND?
Folks on this thread have asserted that an offer is FRAND when it is acceptable to a great many players. And agreements are acceptable to players when they reflect the balance of market power.
Is it appropriate to say that an offer is FRAND merely because it represent the balance of market power between others in the same marketplace? Where a different balance of power exists?"
Can the "FRAND"lyness of an IPR agreement be evaluated separate and apart from the very imbalance of market power which that agreement is purported to represent?
To assert as such is preposterous.
Just because it is FRAND for Nokia to extract licensing revenues from VitelCom who hold no patents doesn't mean it's FRAND for Nokia to extract licensing revenues from Qualcomm who hold a ton of patents, for example.
I imagine that if Nokia refused to sign any terms but that, I am sure Qualcomm would be applying for injunctive relief faster than you could swat a fly, on the basis that Nokia isn't willing to accept FRAND terms... even though Nokia can point to court-approved FRANDly royalty bearing cross licenses with other parties. And in actual fact, Qualcomm made just that type of argument in "they won't accept FRAND" claims in the Broadcom case.
Once we admit, as we must (and as Qualcomm has even done), that FRAND is contextual, then we fall back to the question "how do I detect that terms are FRAND?".
An entirely useful way of detecting FRAND would therefore be compare two agreements. Both are FRAND if either (a) the terms are identical and there are no underlying material contextual differences, or (b) the terms are different, and the differences can be adequately linked to differences in market power.
But at least one of the terms is not FRAND if the terms are equivalent but the market power is different, or if the terms are different by the market power is the same.
In the case of Nokia & Qualcomm (01) versus Nokia & Qualcomm (07) what are these differences?
Nokia now holds a fully paid up license to technology that was CRITICAL. It did not hold this fully paid up license before.
Qualcomm desires to make chipsets that work in GSM, and has no significant GSM IPR. Qualcomm was not interested in this market before. And of course, both parties have added to their IPR portfolios, which you and I have both characterize (absent some whiz bang doozey of a patent percolating to the top of some court docket somewhere) as irrelevant. Proportionality aside.
Therefore, the only way the terms which Nokia and Qualcomm ultimately enter into today should fairly and reasonably be the same as they were in 2001 is if Qualcomm, through their intervening activities, have increased their market power by as much as they have lost. And that's just comparing Nokia/Qualcomm to Nokia/Qualcomm. There is also available the ZyRay/Qualcomm deal to compare as yet another benchmark.
In other words, assuming the '01 offer was FRAND (which we can assert by the parties hard-bargained agreement), then unless a licensing offer by Qualcomm to Nokia is discounted from the '01 offer by enough to offset the intervening increase in Nokia's market position value (as observed in '01) of Nokia's fully paid up license to IS-95 and other patents, AND the value of Qualcomm's access to the GSM market, which Qualcomm did not then need, then such offer might reasonably be deemed as "not FRAND".
This is not for me or you to decide, it is for the good judge.
As observers, all we get to debate is which way we think the good judge will tilt. |
