At some point the essential patent holders are going to have unite and paint the picture for folks behind government regulations. The entire premise of UMTS is to define standards upon which global wireless technology will operate optimally in all geographical locations. It is the basis for carriers and operators to build their systems with the metric "standards compliant" on all of the equipment used throughout. The standards process calls for contributors to present their best mousetraps for review and to determine if the technology makes the final cut. Each member participating in the process agreed to produce all of their patents that may be involved in the ultimate set of standards. Each member covenanted to enter into Frandly licensing agreements whether they were the patent holders or the users. They had created an UMTS approved third party licensing arm that still exists, but never reached its potential because Qcom and Nok did not participate. Without these two juggernauts, most companies opted to go it alone. There were 100+ companies declaring essential patents, but the large manufacturers began to buylly the smaller companies because they felt they were a cut above the others. They believe that because they contributed to standards and also make the products, they are the elite and should be given better deals. The antitrust groups allowed them to conspire and create a cabal that cross-licensed with each other with a rate cap. This allowed them to begin a scorched earth litigation assault on the non-manufacturing contibutors using their conspired rates as a FRANDLY benchmark to thumb their noses at the offers of the smaller companies seeking to license their IPR.
The only fair solution is a ruling that the manufacturers can only be free from injunctive relief by depositing to the registry of the court an initial amount for past use and an additional quarterly amount for as long as the litigation process to set a rate continues. The rate to be used for the deposits should be 1/2 of the rate offered plus theb rate demanded (.4 + 1.2 over 2 equals .
. This would stop the process of allowing the users to finance their litigation efforts with the money that should be being paid to the essential patent holder. If the users opt to not make the deposits, then they can be subject to an injunction and additional damages for the use and benefit of money for which they should not have been entitled from the inception of placing standard compliant products into commerce and receiving money from the purchasers. This would level the playing field significantly. If the big boys are stopped from using the money that should be rightfully in the hands of the patent holder against their opponents to conduct litigation, they may think it wiser to just negotiate in good faith and license before manufacturing.
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