Google's FTC deal could have huge impact on patent wars
Posted on 7 Jan 2013 at 09:56
The patents deal between US regulators and Google last week might have been overshadowed by rivals' disappointment over search neutrality, but could have a much bigger impact in the long term.
Under the deal, which ended an antitrust investigation by the FTC and disappointed many critics, Google will make only minor changes to its search business.
But under the agreement Google is now limited as to when it can seek injunctions against products from rival companies that use some of its patents.
Throughout recent smartphone wars and other major patent litigation, holders of so-called "standard essential patents" have been accused of using them to bully competitors into paying high licensing rates or as leverage in patent disputes.
The FTC's deal with Google looks to clarify how standard essential patents can be used, according to Colleen Chien, a professor specialising in patent law at Santa Clara University School of Law in California.
The deal set out a process by which technology makers can avoid injunctions while ensuring patent holders get compensated, Chien said. "The FTC has deflated the power of the injunction and also the incentives to not pay that have existed."
In its case against Google, the FTC claimed that Google and its subsidiary Motorola had breached commitments to standard-setting bodies to license its patents on terms that are fair, reasonable and non-discriminatory.
As part of the deal, Google agreed to drop claims for injunctive relief against competitors in certain patent disputes around the world. It also agreed to submit to the jurisdiction of a court or arbitrator when disputes over payment rates arise.
The FTC concluded that the threat of injunctions by holders of essential patents hurt competition. The agreement with Google could be used as a "template" for other patent disputes, it said.
Unlike a court decision, the FTC's agreement with Google is not binding on other companies, but it could give leverage to defendants in disputes with essential patent holders that could be used in court.
"We know in today's world, defendants are getting more aggressive," said Matthew Woods, an antitrust and patent attorney at Robins, Kaplan, Miller and Ciresi. "Defendants will seize on this and tell courts that injunctions are something the court should not even countenance."
But the agreement with Google may not be all good news for companies wanting to use other firms' patent, according to Jay Jurata, an antitrust partner at Orrick, Herrington and Sutcliffe, who said that it could have unintended consequences.
The elaborate agreement allows Google to seek injunctions against companies that are unwilling to pay for a license on fair, reasonable and non-discriminatory terms. But the question of when a company is considered an unwilling licensee is an open question and could be exploited by powerful patent owners, said Jurata.
"They provided a roadmap for other standard essential patent holders to engage in opportunistic behaviour to paint otherwise willing licensees as unwilling licensees," he said.
Miller of Robins Kaplan also cautioned that the FTC's deal with Google may be unique because of the company's giant size and dominance, which can attract the attention of regulators.
"There are a lot litigants who aren't going to see this agreement as restraining them, because they don't have the same portfolio as Google," Miller said.
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these patents have always been covered by FRAND. Google was trying to get higher rates than what would be considered FRAND for those patents (for example, all of the non-Google patents for h.264 cost Microsoft a few cents per XBox or Windows licence, but Google wanted over $25 per machine (they wanted a percentage of the retail price of the PC, not the Windows licence) for the last couple of patents.
When the hundred or so other patents in the h.264 portfolio cost a reasonable amount and have an upper cap, meaning that the price is in the cent range, there is no way tens of dollars per machine can be considered fair or non discriminatory.
There is nothing to stop Google, or others, from using non-standards related patents in this way, but those that are under FRAND now have to go to arbitration first and the terms have to be fair, before they can apply for an injunction.
By big_D on 7 Jan 2013
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