If you recall I have been stating all along that the interpretation by the French lawyers failed to take the next step in solidifying and validating their thesis. I have maintained and communicated to the Staff that in order to assert FRAND defenses, the asserting party must admit that the patent claims in question are in fact intersected by the standard and essential to standard compliant terminal units, the products under the 337 investigation are standard compliant, the presumption of patent validity cannot be rebutted and that the only unresolved issue is the royalty rate. If the ITC agrees to undertake a 337 investigation, the respondent/defendant should be allowed to make the required admissions and seek a determination of a FRAND royalty rate in another venue and the ALJ upon motion should stay the 337 investigation until the rate is set completing the formal licensing which would trigger the dismissal of the 337 proceedings or evidence is presented that the respondent is unduely delaying the rate setting action necessitating a removal of the stay. This would relieve the threat of a ban and accomplish the stated goal of the ITC to encourage resolution of disputes between US patent holders and those using the patent without agreement. If the alleged infringers wish to challenge the essentiality, validity and infringement claims, then they do so knowing the consequences if their defenses are denied by the ITC and a ban is the result.
It is nice to see the Staff cited for their position in this document in their opposition to the Nok motion. They now understand that the ETSI documents are two-way streets.
The Apple license should not be relevant to FRAND determinations. It should be classified as a mutual mistake resulting from the refusal of the bad faith large manufacturing companies to accept a FRAND rate at the time. If Nok had licensed establishing a benchmark with the largest manufacturer at the time, The Apple license would certainly have had a different result. That being said, unless IDCC can get a renegotiation of the Apple license accomplished, they may have to consider an action to void the current license on the basis of mutual mistake or offer equivalent terms for past use to new licensees and establish a solid rate going forward for the remainder of 3g while holding steadfast to a uniform rate for 4g/Lte as we enter the rollout of this technology. Successful licensing boils down to trust and IDCC must establish that every manufacturer is in the same boat with respect to royalty. Nobody gets a better effective rate unless they earn it from a standard set of available discounts to all or enter into engineering agreements for the creation and application of our inventions in their products. IDCC is in the business of bolstering the wireless sector for a fair rate of return from all standard compliant manufacturers. We expect to be paid and should be paid. None essential inventions are another story and the company can get whatever the market will bear for these technologies. If IDCC focuses on gaining the trust of the manufacturers causing more licensing, the Street will better reward its successes. The recent patent sale demonstrates that IDCC has the goods and is continuing to produce more goods on a monthly basis. The goal is to be paid for every terminal unit and uniformity and level playing fields are the proven tickets to success.
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