There's a thought out there that perhaps Apple and Google have seen the waste of enriching only the lawyers by fighting in every courtroom that will allow them time and space to do so. That instead of fattening up legal wallets so they can afford second and third spouses, perhaps coming to an agreement would be a better idea? Well, perhaps:
Apple and Google haven’t yet buried their respective hatchets over the patent litigation between them, but evidently they are willing to put them aside for a moment in the hopes of negotiating a broader peace.
A new court filing in the pair’s infringement case reveals that Apple and Google have been discussing the idea of resolving their dispute over standard essential patents via arbitration. Earlier this month, the companies exchanged proposals about hammering out some sort of global licensing agreement over standard essential patents, and both seem to agree that binding arbitration is the way to go.
It is possible to read recent filings that way, yes. Although that isn't quite the way that I would. Advised as I am by Groklaw that that's not quite the way to read them:
Its offer is like you and I meet at dawn with pistols. I have a pistol. You show up with a pistol plus a machine gun. And you say, "Hey, let's not shoot each other with pistols. Let's agree that neither of us can shoot the other with a pistol, and we agree to figure out a talk solution. We agree nobody can pick up a pistol while we are talking." How stupid would I be to say, "Sure" while you still have a machine gun that you are free to use while I now have nothing?
It's worth reading the whole piece there. But the important, takeaway, point is as follows. Motorola (in this specific case, but also to a lesser extent Samsung in other Apple related litigation) holds standards related patents. These do indeed have to be licensed to anyone who asks, on fair and reasonable terms (FRAND to us Europeans, RAND to you Americans). That's fine and no one is arguing about that at all. Apple does indeed have to use, thus pay for, these standards related patents: because it uses the standards themselves. HTC held similar standards patents as well.
Apple (and to some extent Microsoft, in yet other, unrelated litigation) doesn't hold standards related patents. Or at least nothing of any particular value. What Apple (and again Microsoft) does have is a number of design and utility patents. These do not have to be licensed on FRAND (or RAND) terms: they can try and charge as much as they like for them. Refuse to license them at all if they should so wish. Which is also fine and no one is arguing about it. There might well be arguments about whether certain such patents should have been granted but this basic position is not a matter of disagreement.
Standards related patents must be licensed: the question is what is a fair price? Non-standards patents do not have to be licensed and any price, however extreme, can be charged. And, largely true even if not exactly and precisely, Google through Motorola, Samsung (and HTC) hold standards patents. Apple and Microsoft hold utility and design ones.
So far so good: no real problem if everyone does want to come to a deal.
But as Groklaw points out (most astutely in my opinion) Apple's position isn't "Let's put it all on the table and sort it all out". It is, rather, let's neutralise your standards patents by having a standstill agreement while we still get to use our design and utility patents to cripple you:
So here Apple suggests that Motorola lay down its standard essential patents and the injunctive relief they offer, worldwide, while Apple still gets to use its weapons and shoot at will?
It's a great negotiating technique if the other side is stupid enough to fall for it. But it's not exactly great evidence of a desire to reach a negotiated full and final settlement, is it?
