As if we needed someone to tell us that the ongoing patent lawsuits between Apple and Motorola in Germany were getting a little out of control… Today the European Commission has finally stepped up calling Motorola’s enforcement of an injunction against Apple with mobile standard essential patents “abuse of a dominant position prohibited by EU antitrust rules.” The EU Commission, however, does note that the statement of objections sent to Motorola does not reflect the final outcome of its investigation into its use of standard essential patents (SEPs):
The Motorola Mobility SEPs in question relate to the European Telecommunications Standardisation Institute’s (ETSI) GPRS standard, part of the GSM standard, which is a key industry standard for mobile and wireless communications. When this standard was adopted in Europe, Motorola Mobility gave a commitment that it would license the patents which it had declared essential to the standard on FRAND terms. Nevertheless, Motorola Mobility sought an injunction against Apple in Germany on the basis of a GPRS SEP and, after the injunction was granted, went on to enforce it, even when Apple had declared that it would be willing to be bound by a determination of the FRAND royalties by the German court.
The EU Commission essentially states that Apple should be able to license the technology under fair, reasonable and non-discriminatory terms decided by a third-party, and that Motorola’s approach with its latest injunction could “distort licensing negotiations and impose unjustified licensing terms.” Back in February of 2012, Apple was for a short while forced to remove all 3G devices from its online store in Germany following the injunction, and at the time Apple noted that “Motorola repeatedly refuses to license this patent to Apple on reasonable terms, despite having declared it an industry standard patent seven years ago.”
Today’s Statement of Objections sets out the Commission’s preliminary view that under the specific circumstances of this case – a previous commitment to license SEPs on FRAND terms and the agreement of Apple to accept a binding determination of the terms of a FRAND licence for SEPs by a third party – recourse to injunctions harms competition. The Commission is concerned that the threat of injunctions can distort licensing negotiations and lead to licensing terms that the licensee of the SEP would not have accepted absent this threat. This would lead to less consumer choice.
The Commission will not come to a final decision in the investigation, which was originally opened in April of 2012 following the injunction in Germany, until both parties have had an opportunity to enter a defence. It could then possibly “issue a decision prohibiting the conduct and impose a fine of up to 10 % of a company’s annual worldwide turnover.”
According to a report from Reuters, Nokia has this week become the first company to submit an amicus brief in support of Apple’s attempt to secure injunctions on several Samsung products. While the full contents of the brief have not yet been revealed, Reuters reports Nokia argued its position in a summary of the brief that was filed with the U.S. Court of Appeals for the Federal Circuit in Washington on Monday.
In an accompanying summary, however, Nokia argued that a trial court judge got it wrong when she denied Apple’s request for a permanent injunction.
In the filing on Monday, Nokia attorney Keith Broyles from Alston & Bird argued that U.S. District Judge Lucy Koh in San Jose, California, erred by ruling that Apple must establish a “causal nexus” between its patented feature and the demand for its phones in order to secure a permanent injunction.
Nokia argued that the rule “could cause wide-ranging damage to the United States patent protection landscape.”
Companies and advocacy groups will still be able to submit briefs on behalf of Samsung after the company’s written arguments in the coming weeks. Nokia said its decision to submit the brief is to “advocate for patent rights as a means of fostering innovation.”
“Nokia has recently been involved in numerous U.S. patent lawsuits, as both a plaintiff and defendant,” Broyles wrote. “Nokia is thus both a significant patent owner that might seek an injunction to protect its patent rights, and a manufacturer in an industry in which patent owners routinely issue threats of injunctions for patent infringement.”
U.S. Judge Lucy Koh granted Apple’s request for a preliminary injunction against Samsung’s Galaxy Nexus smartphone in June, and the decision resulted in the temporary removal of the device from Google Play pending a software fix with Android 4.1. Today, Reuters reported that Apple’s U.S. injunction on the Galaxy Nexus has been reversed. TheNextWeb got its hands on the official order:
Samsung argued, somewhat humiliatingly, that the sales of the Galaxy Nexus were so poor that they didn’t pose a threat to Apple’s iPhone and that the unified search feature was not essential to the success of its device. The appeals court apparently agrees, as it states in its official order:
…it may very well be that the accused product would sell almost as well without incorporating the patented feature. And in that case, even if the competitive injury that results from selling the accused device is substantial, the harm that flows from the alleged infringement (the only harm that should count) is not.
According to Reuters, the U.S. Court of Appeals for the Federal Circuit ruled the court “abused its discretion in entering an injunction” and will send the case back to the California court for consideration.
Aereo—the service that streams over-the-air local TV to any Mac, iOS device, or PC running Safari for $12 per month—just got a second chance at survival. According to The New York Times, a U.S. federal judge on Wednesday rejected a temporary injunction spurred by television broadcasters, saying a ruling for the broadcasters would have shut down Aereo.
Reuters reported that Walt Disney Co., Comcast Corp., News Corp., Univision Communications Inc., and the Public Broadcasting Service tried to stop Aereo with the injunction, claiming they would “lose their right to retransmission fees from cable and other companies that rebroadcast their programming, and also lose critical advertising revenue”:
- U.S. District Judge Alison Nathan said on Wednesday that while the broadcasters demonstrated they faced irreparable financial damage if were the venture were allowed to continue, Aereo also showed it would face severe harm if the requested preliminary injunction were granted.
- ‘First and foremost, the evidence establishes that an injunction may quickly mean the end of Aereo as a business,’ the Manhattan judge wrote in a 52-page opinion.
The New York Times quoted Aereo’s Barry Diller, who noted a trial still lies ahead for his company, but he is now “far happier to begin this process with the judge’s ruling.” One of the plaintiffs, CBS, told the publication it would continue to seek damages and a permanent injunction: “This is only a ruling on a preliminary injunction. This case is not over by a long shot.”
9to5Mac reviewed Aereo in March and found its broadcast TV-like experience encouraging and well worth a test-drive:
- Overall, Aereo’s HTML5 user-interface is the most impressive on the Mac platform. Its ease of browsing, watching, and recording local TV through Safari is a unique take during an age that offers countless ways of viewing cable without an actual television. The main takeaway with Aereo is that it works best on the Mac and the iPad, video quality is identical to what one would see on a HDTV, and the DVR function is extremely handy.
- [...] For many people, its DVR functionality alone is worth the $12 monthly fee. For others, the admission price might be too hefty when compared to cheaper services that also offer cable programming and better streaming.