This week the Department of Justice issued a business review letter (BRL) relating to Avanci’s proposed 5G licensing platform for patents declared as potentially essential owned by its globally diverse thirty eight licensors. In direct contrast to creative claims attempted by Continental, Robert Bosch, Bury, Gemalto and Daimler in their antitrust complaint to the European Commission’s Directorate General for Competition (DG COMP) European Commission, the US Department of Justice undertook vigorous traditional antitrust analysis of end device licensing and affirmed Avanci’s licensing model after recognizing its numerous procompetitive benefits. In today’s inter-connected antitrust environment, this analysis helps guide the DG COMP analysis of this matter as well as a potential review by the European Court of Justice.
It seems that Unified Patent’s year plus PR campaign (see) against HEVC assets in the US has run out of steam. While their COO’s incoherent rants about Velos Media may be amusing, as I detailed earlier the campaign was misguided and rife with factual errors.
Velos, whose members include BlackBerry, Ericsson, Panasonic, Qualcomm, Sharp, and Sony, has the right to license well over five thousand HEVC patents. These six companies invested significant R&D into developing the HEVC standard. According to the Velos website, their collective technical contributions account for around 40% of the mandatory and optional features of the standard. Technical contributions are a widely accepted indicator of patent quality (3.6), and a strong indicator of underlying research and development, which in turn has been correlated to positive economic growth and quality patents (e.g.). Surely a single forum to license such a substantial portion of the technology would be a good thing and “should be encouraged” (p8) because it can save licensees hundreds of millions of dollars in transaction costs. But seemingly not, according to Unified. Read more
As I have documented elsewhere, Apple, for quite a long time has been engaged in a sophisticated long-term quest to devalue (p7) standard essential patents (“Essential Patents”). This strategy is aimed at reducing, if not eliminating, payment for proprietary technology that runs Apple’s products but is developed by other companies, and Apple regularly utilizes fake advocacy and hypocrisy. Indeed, in 2012, the same year when an independent WIPO study found Apple to have a “uniquely aggressive [patent] litigation history” see (p34), Tim Cook argued (presumably with a straight face) that it was “fundamentally wrong” to sue people over Essential Patents. Apple’s long play to lower Essential Patents royalties has included manipulating standards development organization rules; commissioning misleading “studies” about the total SEP royalty stack; and pouring millions upon millions in lobbying and “academic” research.
My talk for PatSnap is available here https://www.youtube.com/watch?v=ChQYjVMamu0
My talk for PatSnap is available here https://www.youtube.com/watch?v=xFnxo_1Tt_0
My talk for PatSnap is available here https://www.youtube.com/watch?v=QjgdgRy47Ms
My presentation for PatSnap is available here https://www.youtube.com/watch?v=aWrcfuYyRHU
Previously we addressed some of the key omissions in Unified Patents’ article “FRAND SCAM.” This post discusses the article’s failure to address the heavy criticism of the royalty calculations in the TCL decision forms the basis for the key arguments in the article. For a long time industry analysts have criticized the TCL decision on a number of grounds (see, for example, this thoughtful article by Richard Vary at Bird & Bird):
Last month, Unified Patents, also known as a PTAB reverse troll, launched its new service called Unified Consulting. Citing from its website, Unified Consulting “can meet the needs of their companies through IP consulting and data service and support. U[nified] C[onsulting] provides innovative solutions to clients […].” Unfortunately, the solutions Unified advertises are to “problems” of Unified’s own making. To drum up its reverse trolling business, Unified misdirects its readers with an article titled “FRAND SCAM” that focuses on a vacated court case on fair, reasonable, and non-discriminatory (FRAND) licensing, without telling its readers that this case has since been by the Federal Circuit, that later court cases have contradicted its reasoning and analysis, and that industry analysts have heavily criticized it for some time. In this manner, Unified describes “problems” that do not actually exist to sell a solution that won’t actually work.
Previously we discussed a Unified Patents’ article, the “FRAND SCAM” fails to address many key points. But worse than these sins of omission, the article goes so far as to make some outlandish misrepresentations about the overturned TCL decision. For example, Unified incorrectly posits that the “court […] concluded […] that Ericsson had violated its FRAND obligations.” However, the TCL decision actually determined that Ericsson had met its FRAND obligations with respect to its course of conduct. The decision states: “Ericsson negotiated in good faith and its conduct during the course of negotiations did not violate its FRAND obligation.” (p3) The article also incorrectly claims that Ericsson agreed with TCL on the number of patents that were actually essential. However, as the TCL decision makes clear, “Ericsson made numerous challenges to the process that produced these numbers […]. Ericsson challenged the results of this process…” (p30) Ericsson challenged these numbers because TCL’s “experts” spent only 20 minutes per patent in their analysis, producing a vast over-counting of industry’s essential patents to Ericsson’s detriment. Indeed, this was the exact criticism that the UK court leveled on this type of exercise. Tellingly, a later study found the results of the 20-minute-per-patent review to be comparable to random guesswork.