Count: You asked several questions.
1. Hasn't IDCC been asserting their patents must be licensed and negotiating with Sammy and others for years. Isn't that IDCC's business model, getting paid for their IP? How could anyone ever say that Samsung did not expect IDCC to assert their patents?
IMO the answer is based upon ETSI rule. The rule states that all a potential licensee has to do is request a license. At that point they can practice the license without fear of being sued. The French experts say IDCC then has to unilaterally set a Frandly rate for the number of essential patents to be used and that failure to unilaterally set a Frandly rate, without commercial negotiation, allows the licensee to sue for a Frandly rate or damages. The damage sought by Sam in our case is equitable estoppel which would result in no injunction.
2. Why not unilaterally set a rate for each declared patent. There is a range of reasonable prices. IDCC can use the criteria that support a higher rate. SAM would have to prove that the rate was unreasonable - so even if they could show a lower rate was more reasonable it would not matter as long as IDCCs rate was reasonable. I know there was a comment earlier that IDCC's case at the ITC asserts that there is no implied license so they don't want to take any action inconsistent with that position. However also mentioned was the S on the wall theory, where SAM is asserting defenses that contradict each other. IDCC can say we don't think the implied license is applicable, but if it is, then we are setting these rates for each of our ETSI declared patents respectively. At the very least, if the ITC buys off on the implied license defense, then the next day IDCC should set the rates unilaterally.
IMO, your reasoning is not unreasonable. LOL However, what's happening is that IDCC may be saying there is no implied license during their phase of the trial, but when SAM plead the defense, IDCC was required to respond/rebutt the application of the French law, SAM was asserting, by trying to show that it did not apply and second that our rates were FRandly. Incidently, from reading the transcripts available, it appears IDCC did not call a French law expert to rebut SAM's French law expert.
SAM is presenting two harms as a result of our rate demands. 1. The rate is unFrandly because it is not proportionate to percentage of our number of patents to total patents in the family. 2. We are trying to bundle non essential patents with the essential patents and also trying to force a joint venture with SAM. Their French expects says this is not Frandly, not good faith and abusive and would cause SAM material harm.
Levi buys these arguments and urges no injunction.
IMO
g hors
AI
