All about the Big Technology companies – Apple, Alphabet/Google, Amazon, Facebook, and Microsoft and their allies – Intel, Cisco and how they are using their outsized economic might to influence legal and political policy with special focus on patents and SEPs

The IEEE 2015 Patent Policy – A Natural Experiment in Devaluing Technology

 

While most are unlikely to be familiar with the standards development organization IEEE-SA, everyone is familiar with its flagship standard IEEE 802.11, more commonly referred to by its brand name Wi-Fi, that is utilized by billions of people daily. Like all modern wireless standards, Wi-Fi relies on cutting edge proprietary technology to innovate and progress from version to version in order to improve users’ communication experience. That principle is well captured in IEEE-SA’s logo “advancing technology for the benefit of humanity”.

In 2014, IEEE-SA proposed radical changes to its patent policy, which governs treatment of proprietary technology contributed into IEEE-SA standards. The vast changes amended more than half of the preexisting policy, and were geared towards devaluing patented technology contributed to IEEE-SA standards (also known as Standard Essential Patents or SEPs), and facilitating its infringement.

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The SEP Royalty Stacking Myth – Apple Calls Its Own Bluff

My Next Trick: Magical Royalty Stacking Coins!

If you follow statements of antitrust  agencies the world over – even as far away as  China and Korea – you would think that there is a crisis going on in SEP licensing. Some agencies have shown interest in the theoretical concept of “stacking” of SEP royalties. For example, a 2016 Speech by the European Commissioner for Competition Margrethe Vestager represented that “Patents and standards are very important in the world of mobile devices. One recent study shows that 120 dollars of the cost of each smartphone comes from paying royalties for the patents it contains.”    While high royalties do not (and should not) create a presumption of anticompetitive behavior, it is not unreasonable where there are high royalties for a competition regulator to at least be curious whether there is anticompetitive conduct underlying such reality.   Unfortunately, what has happened is the reverse: competition regulators have assumed a high royalty regime, where in fact royalties for handsets are relatively low.  Aggregate SEP royalties are lower even than the 6-8% predicted by a leading manufacturer in 2009.

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A Rotten Apple Standard

Well it finally happened.  Notwithstanding the settlement with Apple, the district court overseeing the FTC’s case against Qualcomm issued a blistering, 233 page opinion against Qualcomm’s SEP licensing practices.  Some have argued that this ruling is just one more step in Apple’s long play attempts to kill SEP licensing – the technology that has put the “phone” into the iPhone.  To better understand this claim it is worth looking back at Apple’s history with respect to SEPs.

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Unified Patent’s UnFRANDly Jihad or Trolling at the PTAB

 

After a period of skeptical acquiescence, anti-trust regulators seem to have come around and embraced patent pools for standard essential patents (SEPs.)   The European Commission, no slouch when it comes to regulating SEPs, even remarked that the creation of patent pools “should be encouraged.”  Indeed, one recent study purporting to be the first to empirically analyze the costs and benefits of patent pools estimates that pools save licensees hundreds of millions of dollars in transaction costs.

Notwithstanding the EC’s encouragement, anti-patent advocates, Google & Apple Unified Patents, has decided to engage in a social media and costly litigation campaign to kneecap two high efficiency video coding or HEVC patent pools.  Filing 3 IPRs and 10 IPRs against patents belonging to HEVC Advance and Velos, respectively.  At a cost of between $300,000 to $600,000 per IPR, these IPRs cannot come cheap – even if much of the work is done in-house.  Accordingly, it is worth asking why is Unified trolling HEVC Advance and Velos, especially since there has yet to be any litigation by the owners of the HEVC patents that were IPR’ed.

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Tech’s Frightful Five and Their Allies Come to Brussels

Tech’s Frightful Five and their Allies Come to Brussels by David L. Cohen

Over the past 100 years corporate America has become quite sophisticated in how it lobbies the US Federal and State government and regulators.   While the messages being promoted may differ, lobbying for corporate interests as diverse as tobacco, sugar (and here), firearms, the environment, fossil fuels, health insurance (and here), financial regulation, and many other fields has become a major business in Washington and around the country.  Indeed, some have argued that the sheer scale of corporate lobbying has allowed it to conquer democracy in America.

It is no surprise, then that Tech’s Frightful Five (Apple, Alphabet/Google, Amazon, Facebook and Microsoft) have become masters of the lobbying game in America.

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Tech’s Frightful Five and Their Allies Come to Brussels

Tech’s Frightful Five and their Allies Come to Brussels by David L. Cohen

Over the past 100 years corporate America has become quite sophisticated in how it lobbies the US Federal and State government and regulators.   While the messages being promoted may differ, lobbying for corporate interests as diverse as tobacco, sugar (and here), firearms, the environment, fossil fuels, health insurance (and here), financial regulation, and many other fields has become a major business in Washington and around the country.  Indeed, some have argued that the sheer scale of corporate lobbying has allowed it to conquer democracy in America.

It is no surprise, then that Tech’s Frightful Five (Apple, Alphabet/Google, Amazon, Facebook and Microsoft) have become masters of the lobbying game in America.

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Smallest Saleable Patent Practicing Unit (SSPPU) – Another Court Affirms the Obvious

In the topsy-turvy world of Standard Essential Patent (SEP) litigation, a court acknowledging the obvious often counts as news. Thus, when Judge Gilstrap in EDTX noted the other day in an order before trial (Doc 376) that the ETSI IPR policy does not require royalties being calculated on use by the smallest saleable patent practicing unit (SSPPU) as the base, it generated breathless headlines (Bloomberg).

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