While FRAND fosters cooperative efforts including the kinds highlighted in IDCC's press release yesterday -- the company's specialized IP-driven partnerships -- it would be counterproductive to technical achievement to view the FRAND concept as a philosophical shift toward favoring the licensee half of the IP creator / IP user relationship.
In the likelihood that IDCC and NOKIA come to terms, the past-usage component of the deal will be viewed by many as an important barometer of the ultimate cost of free riding, of stalling to contract, of free use of what competitors are paying for. Any concessions from the patent holder for past usage, beyond that which can be seen as an exchange for more favorable (to the IP holder) forward usage terms will serve as incentive for any prospective licensee to consider illegal usage of IP, especially IDCC's.
If the end result of this years-long multi-venue legal tie-up is that Nokia will wind up having spent substantially less on lawyers plus past infringement make-good than it would have spent on proper licensing, there it will stand for all to see -- that it's smart business to just go on and put IDCC's ideas into one's devices without paying and to refer IDCC to your attorneys when they come calling again. To hell with that, FRAND or no FRAND. Perhaps IDCC's position is or will be strong enough to make a deal good enough to disincentivize infringement. It's peculiar and of course frustrating that due legal recourse seems to be a rare event in the world of invention.
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