Fussing over whether it was OK for QCOM to offer Broadcom the same deal as Zyray and whether this violates FRAND, thereby making QCOM a villain, is like asking how many angels can dance on the head of a pin. It is pointless
True. At least to the same extent that it's pointless fussing over such similar (but oppositely framed) questions as "how can Broadcom’s failure to sign a nonexhaustive royalty-free cross license be anything but failure to negotiate in good faith?
Either both of these are merely completely reasonable negotiating stances by two parties, or both of these are, by virtue of being inexplicably unreasonable, failure to negotiate in good faith.
Logic should apply bi-directionally, and fairness should not depend on being Qualcomm.
Beyond that, with respect to the FRANDly or unFRANDly differences between SULA and chip license agreements, totally agree: different horses for different courses. The underlying principle of this slices somewhat against the grain that "fair = everybody pays the same rate", but it is at least to my mind entirely reasonable.
"QCOM established, well before the WCDMA standard was finalized, that its SULA position was to charge equal license rates regardless of the CDMA flavor. What theory allows QCOM to demand this rate, regardless of a handset maker’s IP or a few patents that may be off the table? Because QCOM does not compete in the handset market, it can effectively set the rules there for use of its IP without violating antitrust concepts. "
This is the most cogent compact argument raised to this point so far. It does however rest on several pillars.
The first pillar is that nobody has IPR that Qualcomm wants or needs. Qualcomm took this initial stance with Broadcom, and appears to adopt this stance on a FRAND, or at least AND basis. There is an off chance that Qualcomm will need IPR from Nokia somewhere. Again, as the Broadcom case is showing, all it takes is one.
The second pillar is that it is "fair" for Qualcomm to establish a policy whereby everybody gets everything and pays the same. Nokia's challenge is that different manufacturers require different IP, and that one can not compel any single manufacturer to license what they do not need. Consequently, compelling all manufacturers to pay the same price for different things is, ipso-facto, charging different manufacturers different prices for the same thing. Which, arguably, is either not Fair, or not Reasonable, or not Non-Discriminatory. The key word being "arguably".
I totally agree that it's about market power.
What we keep losing sight of here on the thread, and what I keep circling back to is that it really doesn't matter whether Nokia or Qualcomm are right or wrong. At least, our opinion doesn't matter. The only opinion that matters is that of the good judge.
Meanwhile, the market power of the word "arguably", is incredibly large and somewhat random. |
