Art, being an international legal expert on standards and regulations I can advise [and note my low fees for this advice, which QCOM should take note of - the fees if not the advice] that the cases are totally different.
The reformulated gasoline matter was not a standards agreement among a bunch of companies, formed by joining a group, a trust if you will, for the purpose of sharing property to build an entity [a standard], which members of the group can share on the basis of the trust agreement, and outsiders can share on the basis of paying lots of lovely loot [LoLL] to the greedy GSM guild [GGG], [using an example in 3D reality for explanation].
Standards agreements can take different forms. The GGG was one highly successful trust which anti-trust busters could reasonably attack, if trusts are in fact untrustworthy from a communal point of view and are price-fixing monopolies.
The price fixing among the GGG entailed all for one and one for all anti-competitive patent pooling with each patent not being valued correctly, but shared for the explicit purpose of building a standard, which was forced on the Euroserfs by governments, and which would force LoLL to be paid by those not in the conspiratorial collusion to the GGG.
The standards agreement which QCOM is alleged to have broken in the video case currently under advisory to the judge in the Broadcom vs QUALCOMM argument was of a similar type where participants volunteered their intellectual property for the purpose of getting a standard created and enjoying LoLL.
From my reading of the case, QCOM wasn't actually in the agreement, so it's absurd to think that QCOM should "disclose" [a ridiculous expression in these situations] to the standards group that QCOM owns patents which are used to form part of the standard. Yet that's what the jury, with the collective intelligence of a frog, advised the judge.
If somebody isn't participating in an agreement, then they are not part of the agreement and are neither bound by the terms of the agreement nor entitled to receive benefits of the agreement, such as free access to the shared patents without payment of LoLL.
The standards agreements are sneaky ways of forming monopolies with the express purpose of price-fixing and excluding competition, which is anti-competitive [ipso facto], conspiratorial collusion. If it was Microsoft doing it, there would be foaming at the mouth rabid attacks by baying anti-monopoly bloodhounds demanding hanging, drawing and quartering of $ill Gates and trust-busting legal fees to ensure LoLL is paid to the legal guild [which makes the GGG look like children playing in a sandpit].
QCOM wasn't part of the Broadcom conspiratorial collusion on image compression using hyperbolic integer transforms or whatever the conspiratorial collusion [cc] was doing. So was neither bound by the terms of the agreement, nor entitled to free use of cc member patents. At the same time, cc members are not entitled to free use of QCOM patents if QCOM is not in a particular cc. I believe QCOM subsequently joined the cc for cosine integer transforms and image processing [called H264 or some such name].
Further, my understanding is that the image processing agreement wasn't a patent pooling cc, but one in which people would buy the rights to patents on FRANDly rates, which is an absurd, undefined legal expression which has no boundary conditions so lawyers can argue for years over it, until all the money is gone, which is the usual boundary condition for lawyers to work to.
The gasoline reformulation case on the other hand, is not a cc by a bunch of Petrol Producers [PP] for the purposes of replicating John D Rockefeller's predatory pricing [pp] to destroy competitors for the purposes of getting LoLL, but was a regulation forced on PP by government for the purpose of reducing pollution of air.
Governments are legally perfectly entitled to make any stupid laws and regulations they like, as they are the law makers and enforcers, so any law they make is ipso facto a legal law, even if it's a cc for LoLL to go to their buddies and supporters, which is the primary purpose of governments. They can make it illegal to carry bread in your left hand for example. Or tax breathing as a surprisingly untaxed activity. Imagine the tax they could collect for that. They regulate and tax water extraction from the ground, and oil. They even control collecting water from rainfall. Taxing and regulating breathing is a surprising omission.
So, a cc of gasoline technology forcing everyone to buy use of patents owned by Unocal, which gives LoLL to Unocal as they can charge like wounded bulls for others to use the technology is perfectly reasonable. It is quite different from the cosine integer transform image processing litigation and other standards disputes which companies enter voluntarily [not the litigation, the standards ccs].
If the USA Federal Government forced everyone to use CDMA and banned any use of TDMA, analogue and other modulation schemes, then that would be perfectly reasonable and indeed would be a very good idea as CDMA causes less brain cancer than other technologies, since it enables lower frequencies to be used and requires much lower strength signals as well.
There should be class action suits against the government and TDMA [which includes GSM] and technologies other than CDMA [or OFDM] for damages by people who have suffered various brain cancers and tumours.
There is sufficient data and obvious physics which means that a proportion of brain tumours is caused by GSM, TDMA and analogue high energy 2GHz radio frequency propagation when combined with background radiation and landing in the wrong place at the wrong time, precipitating the mutations which lead to tumours, loss of function, brain cancer and death.
450MHz CDMA is a very very low contributor to the problem and 800Mhz not bad.
W-CDMA is bad too if used at 2GHz, though would be okay if used at 800MHz, but I expect slightly worse than CDMA2000 as it's less efficient so needs more energy to effect a given bit transfer.
Anyone buying cellphones or cyberphones should demand 450MHz CDMA and if they really really can't get that, then they should demand 800MHz CDMA and preferably not the W-CDMA version.
Back to reformulated gasoline, which, by the way, I was promoting back in 1986 during my BP Oil International days - gasoline being my one and only job in 1986 in Market Strategy Branch so this is quite a hobby horse for me and deserves a 45 page rant.
It is simply bad luck for competitors if governments adopt the technology of a particular company and force it on everyone. Others just have to pay the LoLL demands of the technology owner or change their business to making gumboots or something.
Speaking of which, since Nokia seems to be going back to making gumboots after April, there should be a good market for polymerized muck from the refineries which refuse to buy the rights from Unocal to make reformulated gasoline. Nokia could build a factory by the refinery and produce billions of gumboots. Joking aside, well-designed gumboots would be an excellent product and might make more money than selling cyberphones in competition with swarms of people from Huawei, Samsung, Sanyo etc.
The Supreme Court sensibly declined to get into the act on reformulated gasoline.
Indeed, part of my effort in BP Oil was to promote to BP management that they promote to governments rules and regulations for environmental protection which would make air quality better, improve life for motorists, make loads more money for BP Oil and ruin competitors.
In the 1990s, BP started doing that. In the 1980s, I didn't think I was making much progress on shifting BP away from the idea of single grade 95 octane [R+M]/2 made from low quality muck and avoiding capital expenditure on refining and distribution to investing in high quality fuel and refining processes and distribution facilities which would be like an arms war against competitors and result in higher margins for both the low quality stuff [to be sold to cheapskates as 91 octane] and high quality stuff [to be sold to snobs with Mercedes as 98 octane] and have the happy outcome of cleaner air and happier engines and engine oil. Not to mention exhaust pipes and children who would avoid brain damage from lead.
That's another huge class action suit waiting to be run - lead in brains was a huge 20th century MADness which was never understood as being as harmful and costly as it was. The harm was some $10,000 [average] per person for the whole population [if I remember my figures correctly]. Which is quite a good class action amount of money which has been retained by the lead producers who I believe knowingly inflicted the harm on people and if they didn't know, they should have done. I saw one particular piece of data manipulation which showed to me criminal activity and I would be happy to provide that information to a court [if I can find it - I think I kept the piece of paper but aren't sure].
Reformulated gasoline is a good idea [depending on price and exactly what that means]. Lucky for Unocal, bad luck for the others.
This is a long rant because it's a legal opinion on a few issues and legal opinions are supposed to run to 50 pages or so to make the cost per word less eye-watering. This one is a bargain.
Pro Bono,
Mqurice [the rest of U2 is pretty good too]
PS: Maybe you'd like to write an Executive Summary for general readers. Feel free. |
