As reported in Business Week, and elsewhere, Apple (iPhone) and Nokia (world's largest cell phone maker) have begun suing each other both in federal court in Delaware and at the US International Trade Commission (USITC). Nokia claims that the iPhone infringes Nokia patents. Apple claims Nokia is now copying the iPhone and infringing iPhone patents. For good measure, Apple clams, in effect, even if the iPhone infringes Nokia's patents, Apple is entitled use the technology in Nokia's patents for a low cost, because Nokia persuaded an international group that set standards for wireless communications to use Nokia's technology (and agreed that the technology would be made available for a low cost).
Apple's "Sixth Defense" to Nokia's claims asserts:
Nokia's false representations to SSOs [Standard Setting Organizations] that it would license the patents it declared essential on FIRAND [one such organization's] terms, and Nokia's assertion of its wrongly obtained monopoly power against Apple in demanding non-FIRAND license terms, constitute patent misuse and render them unenforceable. In addition, Nokia's demand for a reciprocal "grantback" license to Apple's non-standard essential patents as a condition for licensing Nokia's purported essential patents at a FIRAND royalty rate constitutes misuse of Nokia's purported essential patents.
In arguing that Nokia has a monopoly of some kind, Apple asserts:
As reported in Business Week, Apple (iPhone) and Nokia (world's largest cell phone maker) have begun suing each other both in federal court in Delaware and at the US International Trade Commission (USITC). Nokia claims that the iPhone infringes Nokia patents. Apple claims Nokia is now copying the iPhone and infringing iPhone patents. For good measure, Apple clams, in effect, even if the iPhone infringes Nokia's patents, Apple is entitled use the technology in Nokia's patents for a low cost, because Nokia persuaded an international group that set standards for wireless communications to use Nokia's technology (and agreed that the technology would be made available for a low cost).
Apple's "Sixth Defense" to Nokia's claims asserts:
Nokia's false representations to SSOs [Standard Setting Organizations] that it would license the patents it declared essential on FIRAND [one such organization's] terms, and Nokia's assertion of its wrongly obtained monopoly power against Apple in demanding non-FIRAND license terms, constitute patent misuse and render them unenforceable. In addition, Nokia's demand for a reciprocal "grantback" license to Apple's non-standard essential patents as a condition for licensing Nokia's purported essential patents at a FIRAND royalty rate constitutes misuse of Nokia's purported essential patents.
In arguing that Nokia has a monopoly of some kind, Apple asserts:
The relevant markets in which to assess Nokia's conduct, therefore, are markets for technologies that - before the standards were implemented - were competing to perform the functions covered by Nokia's purported essential patents for the GSM standard (the "GSM technology markets"), the GPRS standard (the "GPRS technology markets"), the EDGE standard (the "EDGE technology markets"), the UMTS standard (the "UMTS technology markets"), and the WLAN standard (the "WLAN technology markets") (collectively, the relevant "Mobile Wireless Technology Markets").
In economic terms, this is pretty unintelligible. Each of these technologies competes with each other as well as other communications technologies. Not surprisingly, Apple's complaint makes no allegation as to Nokia's market share in these multiple alleged "Mobile Wireless Technology Markets."
Further and interesting (to me at least), despite making factual allegations of "wrongly obtain[ing] monopoly power against Apple," Apple's countersuit does not assert an antitrust claim in any of its 39 counts. Apple doubtless recognizes that the phrase "obtaining monopoly power against Apple" is meaningless. In the absence of a contractual obligation, which Apple alleges elsewhere, a firm has no obligation to license technology to competitors. Apple, of course, is well aware of this principle, having defended against antitrust claims asserted by Paystar (based on Apple's refusal to permit Paystar to make clone Macs).
So... the antitrust/monopoly allegations seem simply about PR and adding complexity to cases that have more than enough complexity related to technical patent issues. The patent/technology issues may be too difficult for the court or ITC to resolve on the merits, so the false antitrust issue will allow for some good name calling.
On a somewhat amusing note that demonstrates how technology litigation devolves to the lowest common denominator rather than seeking or expecting any kind of resolution on the merits, both Nokia and Apple have included "admissions" of each other's willingness to copy good ideas:
Nokia's complaint to the USITC states:
Apple's unauthorized use of Nokia's inventions is consistent with a long-standing Apple corporate tradition. In 1996, Apple founder and CEO Steve Jobs appeared in the PBS documentary, "Triumph of the Nerds," and freely acknowledged Apple's use of other's ideas."Picasso had a saying," Jobs stated in the interview, "'good artists copy, great artists steal.'" Jobs then added, "and we have always been shameless about stealing great ideas."
Not to be outdone, Apple's counterclaim in Delaware states:
Nokia chose to copy the iPhone, especially its enormously popular and patented design and user interface. As Anssi Vanjoki, Nokia's Executive Vice President and General Manager of Multimedia, stated at Nokia's GoPlay event in 2007 when asked about the similarities of Nokia's new offerings to the already released iPhone: "If there is something good in the world, we copy with pride."
Of course, these statement have nothing to do with the merits of the respective counterallegations, but they make good soundbites. If these cases were ever to go to trial, which is unlikely, each side would offer a host of such provocative but meaningless statements. Because like incomprehensible but nasty sounding antitrust allegations, this is what litigation is all about.
