Microsoft waves Frand at Motorola
Asks court to set 'fair' patent rates
Microsoft has filed suit against Motorola, not for patent infringement but for refusing to license patents on "fair, reasonable and non-discriminatory" (Frand) terms like it promised.
Microsoft is suing Motorola, claiming that the licensing terms Motorola is demanding exist "for the purpose of extracting unreasonable royalties from Microsoft", and is asking the US court to say how much Redmond should be paying for licences on Wi-Fi and H.264 patents owned by Motorola.
Patent rates are more usually a private matter, to be decided between companies, but Motorola is under an obligation to to license the patents on Frand terms, a condition often imposed by standards bodies before the technologies can be incorporated into their standards.
Microsoft alleges that Motorola isn't playing fair:
Instead [of living up to its Frand commitments], Motorola is demanding royalty payments that are wholly disproportionate to the royalty rate that its patents should command under any reasonable calculus.
So Redmond is now asking the court for "a judicial declaration that Motorola has breached [its Frand] obligations by demanding excessive and discriminatory royalties from Microsoft" as well as a "judicial accounting of what constitutes a royalty rate in all respects consistent with Motorola’s promises".
The same claim has been made by Apple, of Nokia, as Florian Mueller points out when looking at the context of the claim. Frand agreements don't apply to all technical standards: the W3C, for example, requires that internet standards be unencumbered by patent licences. But lots of important standards are protected only by Frand agreements, so the ability of such agreements to stand up in court is critical – and these cases could have far-reaching implications. ®
Suing Motorola over Android was a big mistake. HUGE. Microsoft is just now figuring out how huge.
FRAND doesn't preclude a company from conducting reasonable negotiations for things of value other than money - technology cross-licensing for example. And if the negotiations take so long that products are delayed, that can't be helped. Microsoft would never play this game to its own competitive advantage with ActiveSync and the other patents they're suing people over. Oh, no.
Windows contains all sorts of patented technologies
Microsoft is trying to ensure that they don't have to charge $20 or $25 to Asus or Acer. Part of the cost of a Windows licence is the per-copy royalties for MPEG2, MPEG4 AVC (H.264), WiFi, JPEG, etc, etc. 'Fair and non-discriminatory' means the same terms for all licensees, and that's something MS have had to swallow - that they can't charge Acer more than they charge Asus or Dell.
Motorola only mimicking MS - screw the competition!
I guess Motorola is no 'frand' of Microsoft.
Motorola is simply returning the MS' compliment after it was sued. The hypocrisy is amazing to behold.