Friday, April 1, 2016

Google joins the Fair Standards Alliance: discontinued the bad fight, now fighting the good fight

The following press release by the Brussels-based Fair Standards Alliance would have been nothing more than an April Fools' Day joke a few years ago (this post continues with commentary below the press release):


Google Joins Fair Standards Alliance

Brussels, March 31st 2016 – The Fair Standards Alliance (FSA) announced today that Google has become its 19th member.

Launched in November 2015 and based in Europe, the Alliance seeks to promote the licensing of standards-essential patents (SEPs) on fair, reasonable and non-discriminatory (FRAND) terms.

"We are delighted in the vote of confidence that a company such as Google is showing in our growing coalition. FRAND licensing of SEPs is a critical part of ensuring that the innovation ecosystem for 5G and the Internet of Things (IoT) can flourish, and we relish the opportunity to work with Google to further our goals of fair and reasonable SEP licensing on a non-discriminatory basis," said Robert Pocknell, Chairman of the FSA.

Allen Lo, Deputy General Counsel for Patents at Google, said: "Google has joined the FSA to support the leadership that it has demonstrated in showing the way to a fair and principled result."

The FSA believes that the entire innovation ecosystem is threatened by unfair and unreasonable SEP licensing practices. Failure to honour the FRAND commitment that exists in most standardisation licensing creates barriers to market entry, threatens to stifle the full potential for economic growth across major industry sectors, and ultimately curbs consumer choice.

The FSA's member companies, who hold more than 160,000 patents and spend more than 32 billion euros per year on R&D and innovation, include: AirTies, BMW, Cisco, Dell, Fairphone, HP, Intel, ip.acess, Juniper Networks, Lenovo, Micromax, peiker acustic, Sierra Wireless, Telit, u-blox and Volkswagen.


This is excellent news for the FRAND cause. Google's economic weight alone exceeds that of all the other FSA members, though they already had a pretty good membership base before. Moreover, I could imagine that this here increases the chances of other heavyweights--Apple and Samsung, I'm looking at you in particular--joining the same organization.

Google's decision to join the FSA comes about a year after it contributed 4G (LTE) patents to Via Licensing's pool, a move that I already credited to "the real Google--not the FRAND abuser." There is an unfortunate history of Google (through Motorola) having tried to gain undue leverage with SEPs, a fact for which a court ordered (and the Ninth Circuit affirmed) it owed Microsoft damages, and no one in the blogosphere fought Google (and Samsung) harder over that kind of behavior. I knew that it was all reactive: Google and Samsung didn't draw first blood (only Motorola did, but that was before anyone would even have imagined that Google would buy it). They just wanted patent peace and sought to protect Android. But the end doesn't always justify the means.

Two major players who have fought the good FRAND fight in court are not FSA members as we speak: Apple and Microsoft. I have consistently supported them and everyone else (also smaller players like India's Micromax) in this regard. I was, of course, disappointed when I saw Apple take positions on reasonable royalties in a non-SEP damages context (including the position it's still defending with regard to design patents) that are not just inconsistent but totally irreconcilable with some of the really good points it has made in connection with SEP royalty demands by others.

When Apple and Google/Motorola entered into a second-class settlement of their patent suits almost two years ago, they said they'd work together on certain aspects of patent policy. So maybe Google can persuade Apple that the FSA's efforts would benefit greatly from being supported by both of the world's most valuable companies.

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