3 ms·

Seems to me that in the future, companies are going to withhold some of their patents from FRAND even if they would be potentially more useful as FRAND to conti

Seems to me that in the future, companies are going to withhold some of their patents from FRAND even if they would be potentially more useful as FRAND to continue to use them as a weapon. The potential royalties of many of these FRAND patents seem small compared to the damages from infringement. In fact, it seems the value of a patent is inversely proportional to it's usefulness. A patent which covers a critical wireless protocol component is worth a few pennies and can't be used to get injunctions, but a patent for some rounded corner button can be used to sue for billions. If you look at the patent trolling going on, a lot of the cases are for really, obvious, trivialities. While I don't think one should be able to get bans like this, sooner or later, Apple or Microsoft has to lose a patent case in a painful way so they stop trying to shake down competitors. Mutually assured destruction doesn't work if it's not mutual. This ITC case was the closest they've come to experiencing a real threat of pain.

ianlevesque 13y ago
An interesting opinion. It'll be interesting to see if the incentives align better with the guaranteed royalties from FRAND licensing vs. as you say "potential" royalties from trolling. If they don't this is an obvious place for policy changes (not that that is likely to happen if this kind of interventionism prevents real pain for large corporations).
- denis1 13y ago
  The problem with "the guaranteed royalties" is that they aren't really guaranteed. Samsung has been in negotiations with Apple for ages. I'm not sure who is to blame, but there sure as hell isn't a licensing agreement between them. If Samsung can't force Apple's product of the market, what is stopping Apple from never agreeing to a license?
distant-uncle 13y ago
I've been mulling over the most common argument predictably wheeled out by the patent aggressors and their supporters: "Theft! We don't want them to steal our stuff!!" Never mind that even if one allows that the whole concept of patents is a legitimate, and an ethical legal framework, patent infringement is never theft. Theft would involve actual trespass of someone's physical property, that involves removing and/or otherwise exploiting said property without the owner's permission -- in effect depriving them of it. So for an obvious example, if Corp A. breaks into Corp B's engineering offices, and literally steals their code and/or design documents. That would be theft. Of course, computer break in is not technically a physical trespass, but the distinction still stands: an actual trespass must occur. We already have time-tested criminal laws for this, and justly so. Patents are completely redundant for this case. But if you think about, there is actual, honest to goodness theft that goes on in patent cases... and the thief, it's the aggressor! Albeit for a "limited time" (that's of course subject to interpretation, in 20 years many things happen, to someone who dies, that limitation is permanent), someone is given the government-sanctioned go-ahead to literally deprive another of their own discoveries and hard work. Independently discovered, independently arrived at and hammered out. No matter.
- saraid216 13y ago
  I'm not a fan of the concept of intellectual property, but... ...you apparently don't understand the concept of an analogy. The whole reason that IP is called intellectual property is precisely to draw an analogy. Thus, the violation of that property is called theft. And besides, you don't understand theft of physical property either. It does not require physical trespass: taking someone's wallet when they put it down on a table for a moment is theft. Theft is a transfer of possession without an accompanying transfer of ownership. In intellectual property, theft is a duplication of possession without an accompanying duplication of ownership. The result is nevertheless that someone comes into possession of property without the right to own it. Distilled, this is an entirely fair conceptualization of theft.
  - distant-uncle 13y ago
    Infringement is not theft, it is an entirely separate legal concept. Dowling v. United States http://www.techdirt.com/articles/20100913/22513210998.shtml http://www.techdirt.com/articles/20100913/22513210998.shtml The above deals specifically with copyright, but the concept is the same. Secondly, in the post you replied to, I'm not talking about "intellectual property", I'm talking specifically about patents. I think that the copyright laws for instance, are far more balanced, and fair... lengthy time scales notwithstanding. > It does not require physical trespass: taking someone's wallet > when they put it down on a table for a moment is theft. Indeed, it is also trespass on someone's physical property. This is obvious, and brings into question your own understanding. Back to patents. Suppose I discover, and implement a product, doing so entirely independently. I'm then summarily denied the right to practice it via a patent shakedown. Am I still in possession of it? Is one still in possession of one's freedom, if all one has remaining is a tiny cell to walk around in? Let's now break it down in your terms. If Alice infringes on Bob's patent, both have possession, but only Bob, under the law has ownership. However, in the case of patents, Alice can come into possession of "Bob's property" without even knowing of Bob's existence, much less of the existence of "Bob's property". This is not theft. Now let's turn it around. Assuming Alice came into possession of "Bob's property" without being aware of Bob, or "his property", i.e., Alice discovered and implemented it entirely independently. It is now Bob, who can deprive Alice of her own property, in effect taking the ownership of it, as well as having it in his possession. If this is not theft, then I do not know what is. One more time... in the event of infringement, Bob can still practice his art and make use of his property. Alice then merely engages in competition with Bob. In the event of patent enforcement action via the iron hand of the government, Alice can neither exercise, nor even posses "Bob's property".

ianlevesque 13y ago

An interesting opinion. It'll be interesting to see if the incentives align better with the guaranteed royalties from FRAND licensing vs. as you say "potential" royalties from trolling. If they don't this is an obvious place for policy changes (not that that is likely to happen if this kind of interventionism prevents real pain for large corporations).

denis1 13y ago
The problem with "the guaranteed royalties" is that they aren't really guaranteed. Samsung has been in negotiations with Apple for ages. I'm not sure who is to blame, but there sure as hell isn't a licensing agreement between them. If Samsung can't force Apple's product of the market, what is stopping Apple from never agreeing to a license?

distant-uncle 13y ago

I've been mulling over the most common argument predictably wheeled out by the patent aggressors and their supporters: "Theft! We don't want them to steal our stuff!!" Never mind that even if one allows that the whole concept of patents is a legitimate, and an ethical legal framework, patent infringement is never theft. Theft would involve actual trespass of someone's physical property, that involves removing and/or otherwise exploiting said property without the owner's permission -- in effect depriving them of it. So for an obvious example, if Corp A. breaks into Corp B's engineering offices, and literally steals their code and/or design documents. That would be theft. Of course, computer break in is not technically a physical trespass, but the distinction still stands: an actual trespass must occur. We already have time-tested criminal laws for this, and justly so. Patents are completely redundant for this case. But if you think about, there is actual, honest to goodness theft that goes on in patent cases... and the thief, it's the aggressor! Albeit for a "limited time" (that's of course subject to interpretation, in 20 years many things happen, to someone who dies, that limitation is permanent), someone is given the government-sanctioned go-ahead to literally deprive another of their own discoveries and hard work. Independently discovered, independently arrived at and hammered out. No matter.

saraid216 13y ago
I'm not a fan of the concept of intellectual property, but... ...you apparently don't understand the concept of an analogy. The whole reason that IP is called intellectual property is precisely to draw an analogy. Thus, the violation of that property is called theft. And besides, you don't understand theft of physical property either. It does not require physical trespass: taking someone's wallet when they put it down on a table for a moment is theft. Theft is a transfer of possession without an accompanying transfer of ownership. In intellectual property, theft is a duplication of possession without an accompanying duplication of ownership. The result is nevertheless that someone comes into possession of property without the right to own it. Distilled, this is an entirely fair conceptualization of theft.
- distant-uncle 13y ago
  Infringement is not theft, it is an entirely separate legal concept. Dowling v. United States http://www.techdirt.com/articles/20100913/22513210998.shtml http://www.techdirt.com/articles/20100913/22513210998.shtml The above deals specifically with copyright, but the concept is the same. Secondly, in the post you replied to, I'm not talking about "intellectual property", I'm talking specifically about patents. I think that the copyright laws for instance, are far more balanced, and fair... lengthy time scales notwithstanding. > It does not require physical trespass: taking someone's wallet > when they put it down on a table for a moment is theft. Indeed, it is also trespass on someone's physical property. This is obvious, and brings into question your own understanding. Back to patents. Suppose I discover, and implement a product, doing so entirely independently. I'm then summarily denied the right to practice it via a patent shakedown. Am I still in possession of it? Is one still in possession of one's freedom, if all one has remaining is a tiny cell to walk around in? Let's now break it down in your terms. If Alice infringes on Bob's patent, both have possession, but only Bob, under the law has ownership. However, in the case of patents, Alice can come into possession of "Bob's property" without even knowing of Bob's existence, much less of the existence of "Bob's property". This is not theft. Now let's turn it around. Assuming Alice came into possession of "Bob's property" without being aware of Bob, or "his property", i.e., Alice discovered and implemented it entirely independently. It is now Bob, who can deprive Alice of her own property, in effect taking the ownership of it, as well as having it in his possession. If this is not theft, then I do not know what is. One more time... in the event of infringement, Bob can still practice his art and make use of his property. Alice then merely engages in competition with Bob. In the event of patent enforcement action via the iron hand of the government, Alice can neither exercise, nor even posses "Bob's property".