Apple and Motorola “legal turf” over the Motorola Mobility’s handling of patents that it holds which are classified as requiring licensing to others on FRAND terms results as Apple has filed an European Union antitrust complaint against Motorola Mobility – the complaint emerged in Motorola Mobility’s latest annual report which was filed yesterday.
According to FOSS Patents notes, the document reveals that the company has only just been informed of the complaint; the iPhone maker believes Motorola is in breach of this commitment, something evident wise in its latest initiated lawsuit in the US.
On February 17, 2012, the Company received a letter from the European Commission, Competition Directorate-General, (the ‘Commission’) notifying it that the Commission has received a complaint against Motorola Mobility, Inc. (‘MMI’) by Apple, Inc. (‘Apple’) regarding the enforcement of MMI’s standards-essential patents against Apple allegedly in breach of MMI’s FRAND commitments. Apple’s complaint seeks the Commission’s intervention with respect to standards-essential patents.
A Motorola Mobility spokesperson has told Bloomberg Businessweek that the company “has a long-standing practice of licensing our patents on fair, reasonable and non-discriminatory terms and we offered those to Apple,” adding, “The two companies have been in licensing talks since 2007.”
FOSS Patents also states Apple’s three-tiered approach to MMI’s conduct:
- It is trying to reach a point at which German courts won’t allow any further enforcement of injunctions against Apple based on MMI’s standard-essential patents (SEPs). Apple has repeatedly amended a proposal to MMI for taking a FRAND license to its SEPs. The problem is that German courts, especially in one part of the country, continually try to move the goalposts in favor of FRAND abusers and against the public interest in true innovation (SEPs are just a matter of market power, not of huge technological advance) and competition.
- Apple has recently brought an “antisuit lawsuit” against MMI in the Southern District of California. That one is about patent exhaustion and only relates to Apple products incorporating Qualcomm chips. Antitrust plays a role to the extent that MMI’s attempt to terminate its patent license agreement with Qualcomm with respect to Apple as a third-party beneficiary looks like a fairly clear violation of the “ND” (“non-discriminatory”) part of FRAND.
And the conclusion:
Now we know that Apple also brought a formal EU antitrust complaint against Motorola. There were no formal complaints (though presumably a fair amount of informal correspondence) on the table when the EU recently launched a full-blown investigation against Samsung. If Samsung’s conduct warrants an investigation, so does MMI’s in my view. I watch the litigation activity of both companies and differences are only gradual. One difference is simply that MMI has won an injunction based on an SEP, something that Samsung has so far failed to get, but if Samsung keeps asserting such patents, it will eventually also win one somewhere, I’m sure.