VP8 and MPEG LA (WebM blog)

Posted Mar 8, 2013 18:41 UTC (Fri) by iabervon (subscriber, #722)
In reply to: VP8 and MPEG LA (WebM blog) by pboddie
Parent article: VP8 and MPEG LA (WebM blog)

In their comments on the FTC proposal I mentioned (at http://ftc.gov/os/comments/motorolagoogle/index.shtm). The proposal would prohibit getting injunctions based on standards-essential patents, which leaves you with nothing you can do if someone doesn't pay. I suspect that Microsoft's patents are mostly not essential (you could theoretically do it differently, since the standard relies on the outcome, not the method) or not for official standards (only needed if you want to interoperate with Microsoft products).

VP8 and MPEG LA (WebM blog)

Posted Mar 8, 2013 22:25 UTC (Fri) by pboddie (guest, #50784) [Link] (2 responses)

Skimming those submissions (because I don't have the time or inclination to read them closely), it appears that Apple and Microsoft favour FRAND-encumbered standards where the licensing terms should be decided through some process outside the courtroom. That's quite different from regarding patents in standards as irrelevant: anyone not getting a licence for some patent that is supposed to be essential to a standard is still going to get a letter asking them to pay up, but I imagine that the responsibility for deciding the matter, setting the price, and sending the letter is likely to fall on the appointed cartel rather than on some legal functionary or the lawyer of any particular company.

VP8 and MPEG LA (WebM blog)

Posted Mar 8, 2013 23:21 UTC (Fri) by iabervon (subscriber, #722) [Link] (1 responses)

Sure, they get a letter asking them to pay up. But they just ignore that letter, because there aren't any meaningful consequences to not paying, because the patent holder can't get an injunction against them. Apple doesn't mention this in their comments, but that would be an implication of the proposed FTC rule, and the whole thing came up because Apple has been ignoring that letter and Motorola wants something done about it.

Injunctions are not a replacement for damages

Posted Mar 9, 2013 3:04 UTC (Sat) by tialaramex (subscriber, #21167) [Link]

Not being able to impose an injunction doesn't mean that there are no consequences.

Injunctions are a means of _preventing harm_. The court must be persuaded that without the injunction some type of harm will occur to the plaintiff (e.g. their priceless 10th century wall painting will be destroyed, or their stranglehold on the desktop PC market will be broken) which is unlawful, and which cannot be made right through any of the court's normal remedies (e.g. monetary damages). If this is so it can decide based on very limited evidence (often timely action is essential) that the plaintiff is on balance likely to succeed in their claim and that it's not excessive to prevent the defendant from doing something (e.g. demolishing the wall, or shipping a new OS) meanwhile.

But even without an injunction all the ordinary remedies are still available. You just have to actually go through the entire lawsuit process to reach a judgement and get the remedy you want, rather than cutting straight to the injunction and hoping it strangles the defendant so badly that they've no choice but to forfeit their day in court altogether.

A world where Apple can ship infringing iPhones despite a lawsuit, but then has the bailiffs at One Infinite Loop repossessing the office furniture is not one where there "aren't any meaningful consequences" to not paying.