updated 05:03 pm EDT, Wed October 31, 2012
First sign of potential compromise
Apple is willing to pay Motorola Mobility up to $1 per iPhone for the rights to standards-essential wireless patents, the company's lawyers have told the US District Court for the Western District of Wisconsin. If the court sets a FRAND (fair, reasonable and non-discriminatory) licensing rate over the $1 mark however, Apple says it will appeal the decision and fight with all options available. The notice comes in response to a Motorola motion for clarification, and five days ahead of a scheduled trial.
In Motorola's submission, filed yesterday, the company noted that in Microsoft's FRAND contract case -- set to go to trial November 13th -- Microsoft had committed to the idea of a license agreement on court-ordered terms. Apple may be trying to avoid being locked to precedent while showing a willingness to solve the dispute with Motorola, which is owned by Google.
At the same time Apple may be taking advantage of a strong position in the case. In its filing the company points out that Motorola's only expert can't testify about a given licensing rate at the trial, since the court earlier determined that he hadn't offered an opinion about what rates might fall under FRAND terms. Pretrial rulings have favored Apple in general.
To push the case for limiting royalties to $1, Apple says it will use expert testimony and "copious real-world evidence" at next week's trial, including "Motorola's contemporaneous licenses -- that establishes a ceiling for the FRAND rate Motorola could charge Apple for Motorola's worldwide portfolio."
Apple has also responded to another element of Motorola's motion, which asked that the Wisconsin court let a German one set a FRAND rate for Germany. Apple contends that the US lawsuit going to trial next week predates Motorola's German cases, and that if Wisconsin establishes a licensing rate, it should apply worldwide.