Recent Comments:
Nokia vs. Apple: the in-depth analysis {Engadget}
Oct 30th 2009 7:33PM This is an excellent article. As a lawyer, who knows something about these issues, I congratulate Engadget and Messrs. Patel and Gavronski on their exposition of the legal and factual issues. However, I would like to add a correction and another legal issue not addressed. First, whether or not the court hold that any of Nokia's patent is essential, Apple will still be liable for infringement, if the patent at issue is valid and enforceable, and Apple infringes on that patent or patents. Whether a patent is an essential facility is a different issues than whether that patent has been infringed by another’s act.
But whether any of Nokia's patents are essential for a competitor to compete is legally very important and could be crucial to determining the outcome of this case, if Apple chooses to make an issue of it. There are strategic and tactical issues for Apple and its counsel in deciding whether to contest Nokia's admission that its patents are essential. I think that it is safe to say that Apple will only make an issue of whether Nokia's patents are essential, if it believes that it either hasn't infringed on a particular patent, or it believe that patent is invalid. If Apple is using Nokia's patented technology, it makes more sense for Apple to accept Nokia's assertion that its patent(s) is/are essential because that invokes two bodies of law that could be favorable to Apple in this dispute
First, as discuss by Messrs. Patel and Gavronski, supra, Nokia will be obliged under the law of contract, for licenses are contracts, to honor its promise to offer FRAND terms to Apple. Nokia failure to have offered FRAND, if the court so holds, could be viewed as Nokia's prior material breach that would relieve Apple of its obligation to pay FRAND royalties, at least until Nokia offers FRAND terms.
But there is another important legal doctrine of antitrust law that is invoked by any of Nokia's patents being deemed essential: the Essential Facilities Doctrine. If Apple accepts Nokia's admissions that its patents at issue are essential, Nokia is estopped to claim otherwise, and without Apple contesting that issue, there would be no disputed issue of fact on Nokia's patents being essential, and that invokes the Essential Facilities Doctrine (Doctrine). The Doctrine requires that the owner of an technology, which is essential for competitors to compete, must license that technology to competitors on terms that provide the owner of the technology with a fair return on its property, while not being so onerous that they unduly hinder competition. Under the Doctrine, the federal district court becomes the arbiter on what terms satisfy the Doctrine's requirements of providing Nokia with a fair return for its patents, while not unduly hindering Apple's ability to compete with Nokia in the market for smartphones. Because the Doctrine arise from the U.S. antitrust law, it takes precedent over even Nokia's contractual FRAND requirements. See United States v. Terminal Railroad Association, 224 U.S. 383 (1912) and its progeny, and most lately Verizon v. Trinko, 540 U.S. 398 (2004), setting forth the modern elements of a claim under the Doctrine. Thus, even if Nokia is offering Apple the same terms that it offered others and that others accepted, Apple might get better terms from the district court, if the court holds that prior FRAND terms unduly hinder competition.
So Nokia could be risking that the court will impose terms that are consistent with the Doctrine that are better for Apple than the terms, whether FRAND or not, that it offered to Apple, while Apple is only risking paying the royalty that Nokia demanded with pre-judgment interests and legal fees, if the court concludes that Apple was simply engaged in a good faith dispute. The case may come down to what are the customary licensing terms for Nokia’s patents and whether those terms are consistent with the Doctrine’s requirement that such licensing terms do not unduly hinder the ability to compete.
Apple uses a jailbroken iPhone in patent application {Engadget Mobile}
Mar 29th 2009 3:24PM Dear Ms. Patel: Apple's intellectual property is its property. Thus, it can do what it wants with its property within the bounds of the law. So, unless Apple violated some law or protected property interest, even if arguendo, it used some third party utility to modify the iPhone's UI, it has every legal right to do so. However, other, who do not have Apple's permission, can't use Apple's IP. So there is no irony, because there is no theft--no more theft than there would be if lent your car to a friend. However, if I take your car without your permission, that's theft. Get it. Most third graders get it.
