Is Apple’s aggressive patent warfare strategy about to backfire? After winning legal cases that have blocked sale of Android devices in Australia, will Apple become a victim of similar legal actions?
Motorola won the first of two patent-infringement cases against Apple’s European sales division based in Ireland, granting Motorola an injunction against all of the infringing products in Europe.
The products Apple can no longer sell in Germany include the:
- iPhone 3G
- iPhone 3GS
- iPhone 4
- iPad 3G
- iPad 2 3G
Motorola filed the suit in April 2011, which is likely the only reason the iPhone 4S is not included in the injunction, as it wasn’t launched at that point. Europe-wide injunction
At issue is a Motorola patent for cellular data transmission, part of wireless data transmission standards that are encumbered by an agreement to license the patent on “fair, reasonable, and non-discriminatory” terms.
The ruling suggests that, at least in Germany, raising a “FRAND” (Reasonable and nondiscriminatory terms (RAND), also known as fair, reasonable, and non-discriminatory terms), are a licensing obligation that is often required by standard-setting organizations for members that participate in the standard-setting process.defense against standards-essential patent infringement claims could be a difficult proposition, and may force Apple to accept Motorola’s licensing terms for “past infringement.”
The FRAND defense has worked for Apple elsewhere, including in lawsuits brought by Samsung in The Netherlands and France.
The basic argument is that suing over standards-essential patents instead of working out a FRAND agreement amounts to violation of anti-competition laws. Without some legal barrier to suing over such patents, they could potentially be used as a club to thwart any would-be competitors once they have built products incorporating a particular technology standard. Motorola wins lawsuit
The European patent in suit, EP1010336 (B1) “Method for Performing a Countdown Function During a Mobile-Originated Transfer for a Packet Radio System,” is part of the General Packet Radio Service standard upon which 2G and 3G data services operate.
Basically, that means that all Apple products that use 3G data, including all iPhones and all 3G-capable iPads, use the patented technology.
The iPhone could be off the shelves by Christmas. The end is in site for Apple