I agree Whisperer and have said as much before. The problem with Nokia's ETSI theory is that, although it prevents patent hold up, it can give the licensee allowance to be unreasonably intransigent (in terms we have previously used and you use "bad faith" in a non-legal sense). Accordingly, I agree at some point injunction must be available to prevent stick-in-the-mud licensees.
I also agree that Nokia's payments evidence nothing more than its willingness to pay for a license, some form of good faith. Normally, one would tender a payment and state that it is what one believes is the amount owed for x and y, that is, identify what the tendered payment is to be applied to. In that instance, the creditor can accept the payment without giving up a right to claim that more is owed. Instead, according to Qcom there were pages of conditions.
A debtor generally has the right to designate to what debt a payment will be applied. For example, if we have a running account and I dispute the amount you billed for March (assume $1,000), I can send you a check for the amount you billed for April (assume $925) and write that the $925 is to be applied to the April invoice. You have to apply it to the April invoice--not in partial payment of the March bill of $1,000.
My recollection is that Nokia only tried to tender the first payment, maybe there was a second. Subsequently, Nokia has merely booked $20 million a quarter on its books or, according to one of its PR releases, put the money into an escrow or trust account. Its nothing but an attempt to show some kind of good faith and avoid a wilful infringement claim. |
