The enemy of my enemy is my friend, indeed.

Has anyone EVER written an amicus brief supporting Google/Motorola or Samsung?

 

Only ones I can think is when cell providers didn't want Apple to get injunctions on Samsung or HTC phones as it would harm their business (limiting their potential sales by having fewer devices to sell).

 

But those were purely for $$$ and had nothing to do with policy. Everyone speaking on behalf of Apple are doing so because they are against Googles abuse of patents.

I had to Bing the net to find out that CAFC stands for 'Court of Appeals for the Federal Circuit.'

Normally the courts are the enemy of MSFT. How can MSFT file a "friend of the court brief"? Interesting twist on the ancient proverb. Good thing this isn't an EU court, eh?

Well, anyone that Microsoft sides with is automatically evil, everyone on this board knows that

Reckon that massive seal that said "Court of Appeals for the Federal Circuit" AI put in the article wasn't a clue, eh? Bada-BING!

doh... I just saw the United States, the crest, and stopped there.

I think Research in motions amicus brief actually asks the most important position. Is there ever a case where a SEP can be used to get injunctive relief. I expect the court to answer that question in the positive. I am not sure the court would want to list exactly what an example of this "enforceable" SEP would look like. My guess is the problem for Motorola/Google is simple greed. If the SEP's were being offered in equal terms to all parties then it is hard to see how the infringement would not be enforceable. Asking a larger percentage from one vendor because they are making more money does not seem to be acceptable SEP behavior.

The real problem that Apple has brought out is the patent system has become a good old boys club without walls to keep out the riff-raff. Cell phone patents as they were used before the iPhone were civilized and quiet negotiations among a relatively exclusive club of known parties. When Apple jumped into the cell phone game and disrupted the party, the resulting lack of civility is killing the old order. What are we going to do to make a new system that will replace the old one? How are the players in this game going to keep from being poisoned by all the patents controlled by entities that are not taking the huge expensive gamble to build actual cell phones?

If I were in this game I would be looking to end the patent wars between producers and to create a baseline for all patents outside of the ones held by actual producers to be divided up by the non practicing entities. I would want legislation that capped patent costs from non practicing entities to cell phone producers at 5- 10% of revenues and made all the patent holders fight each other for their share of this standard pie. This industry is producing so much money that even 5% of revenues would be an amount in the dozens of billions of $ per year. If someone had a patent or set of patents that was so fundamental that it would change the industry, they would need to either build their own phones or partner with one of the existing producers to capitalize on their invention.

 

The biggest question in all of the FRAND / SEP cases with Apple has been 5% of what.  The chip that actually uses the patent ($5.00) or the whole phone ($600).  Apple's arguments have been falling into 1 of 2 positions depending on the case.  

1) The patent is already licensed by the chip manufacturer and included with the price of the chip (ie this was in response to invalidate a license on any chips sold to Apple only.  Definitely misses the F in FRAND).  

2) The percentage should be on the cost of the component, not the final assembled item.  The extreme example is paying 2.25$ of the cost of a car because it has OnStar and uses a cellular patent.

 

Also with the 5-10% is that per product, per patent owner, or per patent.  Unless that 5-10% cap is per product, You can easily see where those 5% will quickly add up to eat up most if not all of the profit (Or even where the company owes money on each item it makes). 

 

This is one question where there is no easy answer.  

Nokia, Qualcomm, Ericsson and several others would say the royalty basis is the completed device price rather than a chip or even set of chips. Motorola falls in that camp too, with the (recently?) added inclusion of a cap offer on total royalties. Apple would of course benefit from the smallest royalty basis they can get as they are not currently a significant licensor of SEP's. New entrants to the industry would also much prefer that royalties are based on the smallest identifiable components making use of the patents.

Even getting past that there's a whole lot of other details and stipulations with little agreement. Here's a timely example:

Motorola successfully asserted their IP rights against Microsoft in a case heard in Germany last year. The court ordered an injunction on infringing MS products. A US judge put that injunction on hold while it's under appeal. In the meantime the FTC proposed that Google, now the owner of Moto, be enjoined from seeking SEP injunctions from a willing licensee.

So what to do with the on-going MIcrosoft injunction request? Motorola signed Microsoft's last royalty offer and sent it to them along with a letter noting their acceptance of Microsoft's terms for licensing the infringed IP, thus putting an end in sight for the case and the dismissal of the injunction.

Now Microsoft is crying foul over Motorola accepting their offer, saying they really didn't intend for that contract to be accepted by Motorola and used by the German Court for determining damages for their past unlicensed use of Moto's IP.
https://docs.google.com/viewer?url=http://essentialpatentblog.com/wp-content/uploads/2013/02/13.02.22-D.E.-655-1-MS-Moto-License-Agreement.pdf

There's a lot of gamesmanship under way, and no clear right or wrong parties.

EDIT: I don't see where Mueller at FOSSPatents ever did a blog article on Motorola's acceptance of Microsoft's royalty offer, and for good reason. It certainly doesn't benefit some of the arguments he's made.