Research In Motion promotes ‘procompetitive’ FRAND injunctions
In a letter dated November 30, 2012 RIM comments on a couple of questions raised by the ITC in connection with the investigation of Samsung’s complaint against Apple. A preliminary ruling didn’t identify any violation, but the initial determination is under review and there’s considerable risk to Apple that a wireless SEP could ultimately be deemed infringed, which is why FRAND issues could once again be outcome-determinative. The ITC review is going to address multiple questions. The two questions RIM (and other stakeholders such as Google) chose to comment on are whether SEP holders should be able to win import bans despite a FRAND pledge and by what criteria the ITC should evaluate the reasonableness of a royalty demand.
RIM’s primary objective is to argue that FRAND-pledged SEPs shouldn’t be treated differently from non-SEPs. In its July letter RIM already expressed the view that all patents are “part of the larger patent landscape related to smartphones” and defined as “implementation patents” any “patents that are needed to bring a commercially viable product to the marketplace, but are not an inherent part of a standard’s technical specifications”. Other than arguing that implementation patents “do not competitively differentiate the smartphone in the marketplace but instead include the features that consumers would expect to find in any smartphone they would be willing to purchase”, RIM did not offer a delineation. And it doesn’t want to: the whole plan is to muddy the water and blur the lines in hopes of this resulting in a landscape in which any SEP holder will be able to fend off any IP infringement claims by creating a situation of mutually assured destruction.
The latest letter goes beyond the previous one by now arguing that “there are circumstances in which a defensive injunction threat by an SEP holder is procompetitive (and thus in compliance with a FRAND undertaking) — and the denial of the ability to make such a threat is anticompetitive (and thus at odds with the FRAND undertaking)”.
This is an outlier position. Most of the true innovators in this industry are against SEP abuse and agree that the availability of injunctions based on FRAND-pledged SEPs opens the door to massive abuse and creates circumstances under which the outcome of negotiations will hardly ever be FRAND. And there’s a minority of industry players who want to be able to enforce their SEPs aggressively. The members of that minority aren’t all equally abusive in their intentions, but what they have in common is that they’re more interested in maximizing the leverage they can get from their SEPs than in a overall healthy framework. RIM now positions itself at the most radical end of the spectrum because it openly admits that it wants to (ab)use SEPs in order to get away with infringement of other companies’ non-SEPs.