updated 10:45 pm EST, Mon February 25, 2013
Both Apple and Microsoft claim Google not following FTC decree
The Federal Trade Commission (FTC) has published submissions it received regarding the standards-essential patent abuse case against Google. Of note, both Apple and Microsoft claim that Google still has not retracted all of Motorola Mobile's complaints it inherited against the pair, despite the search engine saying it would -- as well as the agreement with the FTC mandating it would do so. Besides just the US refusal, Google is also defying the decree in German courts, specifically refusing to retract cases against Microsoft, despite the company being a "willing licensee" of the standards-essential patents at stake in the trials.
In its filing, Microsoft points out Google's refusal to abide by the FTC agreement, saying that "Google has not withdrawn all of its pending injunctive relief actions based on FRAND-encumbered SEPs. This is true even though these actions were filed against 'willing licensees,' and this anticompetitive conduct by Motorola, and then Google, is the basis for the Complaint in this matter." The company goes on to say that it assumes "that Google's refusal to withdraw its pending claims for injunctive relief means that it interprets the proposed Order to permit it to continue its existing claims for injunctive relief, notwithstanding the Commission's public statement to the contrary."
Apple, in its filing with the agency, points out that Google is trying to redirect blame for the cases. The iPhone maker told the FTC that "Google's actions and public statements since the issuance of the FTC's Complaint raise concerns that it has yet to get the message. First, Google/MMI continues to deny that it engaged in 'hold-up,' and instead blames the victims of its anticompetitive conduct for 'holding out.' Second, Google continues to pursue injunctive relief against Apple in federal court and seeks to exploit the injunction it obtained and enforced against Apple in Germany. Third, Google/MMI continues to demand royalties (in the German rate-setting action and in ongoing negotiations) based on past licenses it negotiated while wielding the threat of injunction. Such licenses are the proverbial 'fruit of the poisonous tree' and cannot be presumed FRAND."
Apple also argued that its experience was that standards-essential patent holders often fail to prove infringement, willful or otherwise. Motorola Mobile had asserted 10 standards-essential patents against Apple in both Germany and the US, with nine of them being found invalid or Apple not in infringement. Further proving its point, Apple reiterated that Samsung attempted the same tactic over 20 times, with 13 losses, two victories (valid in South Korea only), and one in the Netherlands. Eight patent claims were dropped by Samsung, "tacitly recognizing the defects in those patents."