Patent roundtable seeks to provide a way forward

Yesterday the International Telecommunication Union (ITU), a UN agency that co-developed (for one example) the H.264 video codec standard, held a patent roundtable to discuss the implications of widespread patent litigation in the wireless devices industry.

Closed-door working group talks are continuing through Friday, and ITU officials noted at the press conference that the working group will be able to meet as often as it wants over the next 12 months or so.

I had the opportunity to follow over the Internet the first two of four sessions, subject to the  Chatham House Rule, and would like to share my observations. You can find some stakeholders’ positions in their contributions published on this page.

Clearly, the industry is deeply divided over the issue of SEP enforcement. Against this background, it speaks to ITU’s influence that it managed to bring players like Apple on the FRAND-friendly side and their opponents, above all (though not exclusively) Google’s Motorola Mobility, together for a day.

Attendees also included competition regulators and patent offices from different continents.

The two key issues are injunctive relief over SEPs and the question of an appropriate royalty base. Regulators are genuinely concerned. They are taking action and slowly but surely stepping up the pressure.

Yesterday’s New York Times  reports on “widening scrutiny” of Google’s use of Motorola’s SEPs by the Federal Trade Commission of the United States. The European Commission has three SEP abuse investigations going (one involving Samsung, two involving Motorola Mobility). South Korea’s Fair Trade Commission  is investigating its local hero, Samsung.

While these investigations are in progress, regulators are reluctant to take definitive positions on some of the key issues, other than arguing that there is a need for greater clarity. It became clear that antitrust enforcers still hope that the companies involved will strike agreements that render antitrust penalties unnecessary.

Finally, there are organizations defending the interests of the patent system who on the one hand realize that the current SEP mess is a threat to the credibility of the IP regime as a whole (even though SEPs are only a minority of all patents) but on the other hand don’t want to weaken the enforceability of patents if they can avoid it.

The two key issues I mentioned above – injunctive relief and royalty base – are pretty binary in nature.

While a “no injunction” policy could have limited exceptions, such as the enforcement of injunctions after a company refuses to pay a court-determined royalty rate or the pursuit of import bans if infringing goods originate from unidentifiable sources, there’s no way that any serious improvement over the status quo can be achieved as long as there’s a huge loophole of arguing that injunctions must be available against those who are not “willing licensees”.

None of the speakers said that injunctions based on SEPs should be available under all circumstances there would be no support for that proposition. Still, certain stakeholders wish to use their SEPs not only for rent-seeking but even more so to extort cross-licenses involving non-standard-essential patents, and in order to have this opportunity (to the detriment of competition and innovation) they argue that everyone should be allowed to be a little bit pregnant.

The fact that some whose conduct is already under antitrust scrutiny get support for their cause from companies that are actually pretty reasonable in their SEP enforcement doesn’t change anything about the need to bar bad-faith players from engaging in hold-up.

You can’t set rules coming from the assumption that everyone will adhere to them in reasonable ways. The rules must have teeth because sooner or later someone will breach them. And the only way in which hold-up, which one regulator accurately defined as seeking compensation in excess of a FRAND rate at the threat of an injunction, can be effectively prevented is to remove the threat of an injunction except under clearly identifiable and egregious circumstances.

The only solution to the hold-up problem is a very high degree of legal certainty. Unspecified distinctions between the willing and the unwilling just aren’t helpful at all.

When watching or reporting on an event, it’s always important to think about important stakeholders who did not attend.

For example, no consumer organization spoke out, at least not during the part I had access to. There are presumably many companies in the industry who are concerned about the hold-up problem but stayed away from today’s meeting because they decide to spend more time on problems they face today than on an issue that could cause even bigger problems tomorrow.

This is not ITU’s fault. The event was as open and inclusive as it could be. But I believe there’s a silent majority of stakeholders who oppose injunctive relief over FRAND-pledged SEPs, yet don’t have as much motivation, and in some cases may lack awareness or simply the resources, to voice their positions the way certain FRAND abusers and rent-seekers do.

 As a result, the number of speakers taking a particular position at a given event isn’t necessarily representative.

With regulators hoping that industry will work it all out (though they’ll act if that hope fades), standard-setting organizations are continuing to see a rift within their membership.

The patent system is also torn between concerns over the reputation of the system and the enforceability of the intellectual property rights it grants every day. Litigation continues unabatedly, requiring the courts to resolve the pending and steadily-progressing disputes with the means at their disposal.

For a long time, standard-setting has been extremely consensus-oriented, with decisions usually being reached unanimously even after heated debates over the right way forward.

But in my opinion, the stakes are too high this time around. This is about the rules under which some of the most deep-pocketed companies in history are fighting for market share in a rapidly-converging high-tech industry, in which hardware, software and services of different kinds are all part of one market as opposed to the separate industries they used to be for decades.

A company like Apple can’t allow others to abuse SEPs in order to force Apple to relinquish its crown jewels in the form of comprehensive cross-license agreements involving SEPs and non-SEPs on terms that don’t meet Apple’s strategic needs. At the same time, Google wants to get away with  Android’s proven wide-ranging infringement of non-standard-essential patents, and it either wants to get so much leverage out of Motorola’s SEPs that it can reach the point of mutually assured destruction and solve the problem through a cross-license on favorable terms or it wants to at least create a situation in which non-SEPs are subjected to pretty much the same enforcement restrictions as SEPs.

Either way, Google would neutralize Apple’s patents. They can meet at a dozen roundtables and still won’t agree. Those are just two of the companies involved, but their diametrically-opposed strategic interests show that even the most skilled dealmakers wouldn’t be able to broker an immediate agreement.

The conflict is too fundamental for a solution to be brought about exclusively at the negotiating table. All of these companies just do what they believe is best for their shareholders.

Courts and regulators have to apply the law with a view to overarching policy goals. It wouldn’t make sense to base any decisions on one’s vision for the smartphone industry standards are relevant beyond this one field.

One of the speakers told the story of how sun time had to be replaced with standardized time in order to have reliable railroad schedules. The following was not said by the aforementioned speaker, but just imagine for a moment what would have happened if the owners of essential patents had been able to prevent their rivals from measuring, communicating and processing standardized time.

With such non-smartphone standardization issues in mind, I believe it’s not hard to see that the positions advocated by Apple in a  letter to ETSI last year and indirectly endorsed by Judge Posner this year are, for overarching reasons, in the public interest, regardless of whether one agrees with Apple’s enforcement of non-standard-essential patents against its Android rivals.

Even if it’s impossible to find common ground right away, meetings like yesterday’s ITU roundtable serve various useful purposes.

The quality of the presentations I saw was really high, starting with an excellent overview of the issues. The ITU considers itself uniquely positioned, thanks to its vast experience in resolving global issues, to provide a forum in which a constructive exchange of thoughts may lead to a compromise.

But in my view a roundtable is a complement to, and not a substitute for, the judicial and regulatory decisions that will have to come down in the months and years ahead. Only a couple of hours after the roundtable, an important summary judgment decision came down in the United States in a Microsoft-Motorola case involving H.264, making it clear that a district court will set FRAND terms (both a range and a point) for Microsoft’s access to Motorola’s SEPs at a trial next month. If no one else provides clarity, the courts will give meaning to FRAND and their decisions may at some point facilitate an agreement among industry players.

While I was watching yesterday’s debate, I was thinking that some of the participants may recycle parts of today’s manuscripts and slide decks further down the road if, for example, the European Commission conducts hearings on some of the pending SEP antitrust cases. If it gets to that point, a decision in favor of one position or another will come down.

There were no winners or losers this week because they all contributed to a timely, well-organized and informative event.

Florian MuellerBy Florian Mueller.

Florian Mueller is the author of the FOSS Patents blog, which provides cross-jurisdictional coverage of wireless patent disputes. As an analyst, he helps financial investors navigate the smartphone patent wars, and as a consultant, he advises industry players including Microsoft and Oracle on standard-essential patent issues.

2 comments

  1. Josh Green · · Reply

    Florian is on the wrong side of the fence, trolling the FLOSS community with patents, while being paid by Microsoft.

    This is unethical.

  2. Thanks for your comment. Just to reiterate the issues highlighted here will include those that are controversial, alongside others on which consensus is building. Contributors will be invited from all fields, as well as ITU experts. This blog is not an “official” ITU perspective but rather a platform for discussion and knowledge sharing. Each contribution is the author’s own.

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