Basically you are saying that a royalty bearing license agreement in favor of Qualcomm is FRAND, and a non-royalty bearing mutual cross licensing agreement is FRAND, and a royalty bearing license agreement in favor of Broadcom is FRAND, right?
Yes, yes and yes. It's called negotiation.
Even Qualcomm does not agree with you.
In line 111 and elsewhere, implying that Broadcom has been entirely unreasonble, Qualcomm states that Broadcom "has refused to agree to FRAND licensing terms"
In line 59, they admit that Broadcom offered a broad royalty-free exhaustive cross license agreement, which Qualcomm refused. This prior to the purchase of Zyray.
If (as you assert above) that a royalty free exhaustive license is indeed FRAND, then by virtue of making a FRAND offer, Broadcom certainly demonstrated their willingness to agree to FRAND licensing terms.
You may call it "negotiation", but just because terms are fair and reasonable in some contexts does not make them fair and reasonable in other contexts. Especially when the contexts are vastly different.
To my mind at least, and we may disagree, licensing on terms that are fair, reasonable and non-discriminatory has at its heart that the terms are fair, reasonable and non-discriminatory with respect to the parties at the table. Bringing terms to the table that are "Fair" to someone else but not fair to the bloke across the table might be a reasonable negotiating tactic, but presenting something unfair and unreasonable in context, and calling it fair and reasonable out of context is purely semantics.
The whole purpose of FRANDly licensing requirements is not to create a maelstrom of semantic gamesmanship, but to compel parties to act reasonably towards each other. I can't satisfy an obligation to be Fair and Reasonable to one party merely by doing the same things that might be fair and reasonable to someone else without regard for contextual differences.
In reading Qualcomm's pleading in the Broadcom case, I think it would be fair to say that Qualcomm offered Broadcom a few negotiating positions, some of which can not judiciously be characterized as FRAND with respect to Qualcomm and Broadcom Even though one of them might have been FRAND with respect to Qualcomm and Zyray. |
