I would hope FRAND changes as facts change
What is the motivation for Nok, Sam or others not to go the distance and then accept IDCC proposed rate following a loss but prior to an injunction?
I would think that the value of patents that have been ruled essential and infringed on by a court and the ITC would have greater value than patents that are licensed without legal testing. It seems that good public policy would allow companies that come forward and license without resorting to litigation (thank you LG) to get a better rate than those that are dragged to the table kicking and screaming. If you can get the same rate either way, there is little incentive to cooperate and license if you can come up with any legal strategy that gives you any shot at winning. Legal costs vs. license expense makes the risk/reward so high that even a 1% chance of winning makes it worth litigating if the license terms are the same.
Those knowledgeable in the area please correct me if I'm wrong, but non-discriminatory does not mean everyone ends up paying the same amount, it means that if you get the same contract the other licensees would get based on the facts known at the time of license, including volume discounts, prepayment discounts, value adjustments for multi-funcional units and other variables that affect rate with out being discriminatory in the FRAND sense. Obviously, if Nokia can get all of IDCC patents ruled non-essential Nokia would be able to negotiate a lower rate than LG has. If IDCC had a new, absolutely necessary patent approved tomorrow, IDCC would not be under any obligation to license others at the same rate as LG even if LG's license included patents approved during the life of the license, correct? If the above common sense statements are true, then anything that affects the value of the patent should change the fair and reasonable rate and not be a violation of the non-discrimination requirement. Having patents tested legally adds value to them. Negotiating in good faith should be factored into the terms vs. battling every step of the way. Is that how FRAND works? I appreciate any knowledgeable feedback or real life examples.
Whizzer, thanks for your great summation of the importance of March 24. That post will be referred to often over the next three weeks.
