Here's a redacted version of Microsoft's Android/Chrome patent license agreement with Samsung

The Microsoft-Samsung contract dispute in the Southern District of New York over the implications of Microsoft's acquisition of Nokia's wireless device business for the parties' 2011 Android/Chrome patent license agreement has already exceeded my expectations concerning transparency. Three weeks ago this case brought to light that Samsung forked over more than a billion dollars in patent royalties on its Android/Chrome devices to Microsoft in the 12-month period from July 2012 to June 2013. Last week, a Samsung motion to compel arbitration explained certain interdependencies between the parties' Android/Chrome patent license agreement and a second contract, a Windows- and Windows Phone-related business collaboration agreement.

Here comes the latest and greatest revelation, which in certain respects is of even greater interest than the billion-dollar figure: yesterday, Samsung's counsel in the New York case had to file a public redacted version of the declaration supporting Samsung's motion for referral to arbitration, including the key exhibits--the patent license agreement and the business collaboration agreement.

The following PDF document contains the declaration and the redacted versions of the two contracts (this post continues below the document):

Redacted version of Microsoft's 2011 contracts with Samsung.pdf by Florian Mueller

These contracts are interesting from different angles. One of them is Samsung's motion to compel arbitration. At first sight (and I will have to look at it more closely and think about it some more) it does appear that the two contracts, both of which were concluded within a couple of months of each other, are indeed closely connected. The business collaboration agreement was signed first but already referred to credits (based on Samsung's success with Windows devices) against Android/Chrome-related license fees. Technically they both have the same date: July 1, 2011.

The aspect I found most interesting is all about exclusions. While the license agreement is not limited to a particular list of patents, it's no total-portfolio license either. There are two key limitations: "Excluded Technologies" and "Excluded Software" (any software licensed under an "Excluded License").

As for excluded technologies, Microsoft did not license to Samsung any of its patents relating to

1. Kinect-style gesture-based functionality (this exclusion has nothing to do with touchscreen gesture control, as the contract clarifies),

2. Virtual Reality, and

3. "Information Worker Software": a software or a service "designed or offered as a replacement" of Microsoft's office applications, with OpenOffice and LibreOffice being specifically mentioned as replacements for one or more Office components.

The definition of "Excluded License" includes any version of the GPL, LGPL, Mozilla Public License, and Common Public License, or similar licenses with a copyleft (share-alike) feature. This exclusion, however, relates only to "Other Samsung Products" and not to Samsung's Android and Chrome devices, where the only excluded license is the GPLv3. In other words, the license agreement does cover the GPLv2 parts of Android, such as the GNU operating system and the Linux kernel. This might spark some debate in Free Software circles. It also reminds me of what I said four years ago when there was a debate raging in Europe over "open standards" and the compatibility of free and open source software with FRAND (fair, reasonable and non-discriminatory) licensing terms. I said that patent royalties are paid on free and open source software, including GPLv2 software such as Linux, all the time, also by such companies as Red Hat. The now-public terms of the Microsoft-Samsung patent license agreement are another example.

Besides the actual exclusions I mentioned, there's also a mechanism in the contract that can lead to the exclusion of a category of devices. There are special rules in the contract for a "Deferred Android Device," defined as "an Android/Chrome Device that (a) does not have voice communication as a primary functionality, (b) has web browsing as a primary functionality and (c) has a display screen no larger than 6.25 inches across its diagonal." For such devices, the contract requires the parties to take certain steps for the purpose of agreeing on a license fee on such a device, but if the parties couldn't agree on a fee, then such devices would just not be covered by the license agreement.

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Nokia wins German injunction against HTC's Android-based devices over key USB-related patent

The Nokia patent noose keeps tightening around HTC's neck:

Judge Andreas Mueller ("Müller" in German), the Presiding Judge of the 21st Civil Law Chamber of the Munich I Regional Court, just announced a ruling in Nokia's favor. The court granted Nokia an injunction against HTC's Android-based devices infringing EP1246071 on a "method of configuring electronic devices", a key USB-related (but not standard-essential) patent.

HTC did not have much of an infringement defense, and failed to persuade the court from staying the infringement proceedings pending a parallel nullity (invalidation) action against this patent pending before the Federal Patent Court of Germany. I predicted this outcome based on how the trial had gone in September.

As an Android user I make use of the patented functionality on an almost daily basis. The patent does not cover all USB connections, but it does cover the automatic configuration of an appropriate driver on a desktop PC when a USB connection is established. I use a USB cable to connect my phone (presently, a Galaxy Mega 6.3) to my Windows desktop. Windows then offers several choices for the purpose of the connection. Most of the time I just want to access files (photos etc.) stored on the phone, using it like an external USB storage medium. Alternatively, I could run a synchronization program. Or a user might want to use a smartphone as a USB wireless modem. These different use cases require different device drivers, and depending on my choice, the right one will be activated (and, if necessary, installed in the first place). That's what this patent is all about. I can also select a default connection type, which will then be activated automatically.

Nokia did not accuse any Windows Phone devices in this action, which are presumably licensed by extension of Microsoft's patent arrangements with Nokia.

Even though this patent is of concern to all Android device makers, Google did not intervene.

Nokia can enforce this ruling on a provisional basis during the appellate proceedings. In order to enforce all parts of the ruling (including a recall of infringing devices from resellers), Nokia has to post a bond or make a deposit of approximately 50 million euros ($68 million).

Of all German patent judges I know, Judge Mueller and his panel are the most difficult ones to convince of an infringement theory. Other parties failed to win anything from that court, making Nokia's achievement all the more significant.

For formal reasons (not all of its claims succeeded), Nokia has to pick up 40% of the court fees. But this is strategically irrelevant. What Nokia needs is leverage over HTC in a major market (such as Germany) so as to obtain a settlement on its preferred terms. Nine months ago Nokia (represented by the same winning lead counsel, Bird & Bird's Christian Harmsen) already won a German injunction against HTC, but HTC just removed a feature and kept selling. It can also work around this patent, but the attractiveness of its Android devices to German consumers would likely be adversely affected. HTC can also ask the appeals court (the Munich Higher Regional Court) to stay enforcement, but such stays are granted in Germany only if a defendant demonstrates that it is more likely than not to succeed on appeal.

An injunction Nokia recently won against HTC in the UK over a hardware patent was stayed by the England and Wales Court of Appeal, but UK courts apply an equitable standard that is different from the German approach to injunctions as a remedy at law (i.e., pretty much an automatic consequence of a finding of infringement).

Last week the United States International Trade Commission (USITC, or just ITC) decided to conduct a routine review of a preliminary ruling that held HTC to infringe two Nokia patents and could lead to a U.S. import ban.

Nokia has more than 50 patents in action against HTC in seven countries on three continents. Most recently, a Nokia lawsuit against HTC in Paris, France and a complaint in Dusseldorf, Germany targeting Google Maps and Google Navigation became known.

[Update] Nokia has provided the following statement on the decision:

"Nokia is pleased that the Regional Court in Munich, Germany has today ruled that a number of HTC products infringe Nokia’s patent EP 1 246 071, which covers USB functionality in mobile phones.

Today's judgment is another significant milestone in our on-going dispute with HTC, enabling Nokia to enforce an injunction against the import and sale of all infringing HTC products in Germany, as well as to obtain damages for past infringement. This patent is also already in suit against HTC in the UK.

Nokia began its actions against HTC in 2012, with the aim of ending HTC’s unauthorised use of Nokia’s proprietary innovations and has asserted more than 50 patents against HTC in France, Germany, Italy, Japan, the Netherlands, UK and US. During 2013, HTC has been found to infringe Nokia patents in venues including the Regional Courts in Mannheim and Munich, Germany, the UK High Court and the US International Trade Commission."

[/Update]

[Update2] On Sunday, HTC told Focus Taiwan that its One series of smartphones was not found to infringe and is, therefore, not affected by the Friday ruling. I had mentioned that Nokia had not succeeded on all of its claims (hence had to pick up 40% of the fees). The finding of non-infringement by HTC's flagship phone is probably the explanation. I attended the announcement of the decision, but the detailed reasoning was provided only to parties' counsel, not to the general public. [/Update2]

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After U.S. DoJ, European Commission also grants fast-track clearance to Microsoft-Nokia deal

The Microsoft-Nokia transaction, which comes with a 1.65 billion euro patent license agreement, has now been approved by antitrust regulators in both partners' home jurisdictions. On Monday it became known that the United States Department of Justice (DoJ) unconditionally approved Microsoft's acquisition of Nokia's wireless devices business. The article I just linked to also mentioned approvals by regulators in India, Russia, Israel, and Turkey. Now the deal has also been cleared, unconditionally and on the fast track (Phase 1), by the European Commission. Here's the official European Commission press release. On November 22, Reuters already reported on information from sources close to the proceedings who predicted this outcome.

In my initial reaction I had already said that this deal is clearly procompetitive. No patents, except for highly product-specific design patents that affect only extreme copyists, change hand under the deal. In a mobile devices world led by Google's Android and Apple's iOS platforms, it's in the interests of competition and innovation that more muscle be put behind a third platform. While there are always companies who oppose a deal, no official complaints about the transaction were known -- presumably because it was clear from the beginning that this deal raised no issues unless competition law is suddenly turned on its head.

The deal is expected to close in early 2014, and everything appears to be on schedule.

This transaction has interesting implications from a patent licensing and ltigation perspective. In September I discussed one important effect: the creation of a cost-effective combination of patent license agreements.

Nokia will have three major strategic business areas: patent monetization, the Here maps business, and the NSN network infrastructure products. With respect to the first of these fields, Nokia is clearly making headway in its dispute with HTC. It's only a question of when, not if, HTC will have to take a royalty-bearing patent license from Nokia. On Tuesday the England and Wales High Court granted Nokia an injunction against various HTC devices. Another important Nokia v. HTC patent ruling is scheduled to come down in Munich on Friday, and I will attend the announcement.

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Ruling canceled: HTC struggling to win patent case against Nokia before closing of Microsoft deal

The Munich I Regional Court had originally scheduled a decision on an HTC v. Nokia patent infringement lawsuit over a power-saving technique for this morning, but a spokeswoman for the court just confirmed to me that the announcement has been canceled as a result of new representations made by HTC. The court has reopened the proceedings and scheduled a retrial for February 6, 2014.

Previously, another German court, the Mannheim Regional Court, had dismissed two other HTC countersuits against Nokia:

• In early September, Nokia's German subsidiary was cleared of infringement of the same power management patent with respect to older devices (running Windows Phone 7). In Munich, HTC is suing Nokia Oyj, the Finnish parent company.

• Two weeks later, the Mannheim court also tossed a complaint brought by HTC subsidiary S3 Graphics against Nokia over a video codec patent.

All in all, HTC (including S3G) has brought five German lawsuits against Nokia over only two patents, four of them just over the power management patent. The courts in Mannheim and Munich severed HTC's claims against newer Nokia Lumia devices (running Windows Phone 8), which were brought through amended complaints, from the WP7 cases. I reported on those amended complaints back in June, when the additional claims were mentioned at the trial preceding the decision originally scheduled for today.

The window of opportunity for HTC to gain leverage against Nokia is now closing. Nokia is in the process of selling its wireless devices business to Microsoft. While its terms are unknown, it's a fact that Microsoft and HTC have a patent cross-license agreement in place, and it is known that various existing Microsoft cross-license agreements with other industry players will also cover those products once Nokia's wireless devices business is owned by Microsoft. I understand from public documents that the deal is expected to close in early 2014, with April being a reasonable estimate. Antitrust clearance will be needed for this deal because of its size, but there are no substantive issues that could result in an extended review, let alone a regulatory decision to block it.

Assuming that April is the month the deal closes, and considering that the Munich court typically hands down decisions two months after trial, the Munich ruling on the power management patent will presumably come too late for HTC's purposes. I understand that the February 2014 trial will relate to both HTC v. Nokia cases pending there (the one over WP7 devices and the one over WP8 devices). And HTC's/S3G's appeals of the Mannheim dismissals probably won't even be adjudicated before 2015. Also, I'm not aware of a near-term trial date in Mannheim for the WP8 power management case against Nokia Germany, and the Mannheim court also tends to rule about two months after trial.

Unless HTC unexpectedly finds a patent it can assert against the NSN mobile network infrastructure business and/or Nokia's Here maps business, it's not going to be able to countersue Nokia after the closing of the Microsoft deal. HTC will have to take a royalty-bearing license sooner or later. It can, of course, keep trying to delay the inevitable by defending itself against one Nokia lawsuit after the other and by modifying devices to comply with import and sales bans. But Nokia has so many relevant non-standard-essential patents that HTC will at some point elect to take a license.

Nokia would presumably like to put the dispute with HTC behind it and move on to greener pastures. Through the "Patentgate" scandal it came to light that Nokia and Samsung are negotiating a patent license deal.

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Nokia wins first patent ruling since Microsoft deal: German court tosses HTC complaint

At the end of an eventful week for Nokia, the Mannheim Regional Court announced its decision this morning to reject an HTC v. Nokia patent infringement complaint over EP2073096 on "Power management systems and methods for electronic devices". I discovered in early February that HTC was asserting this patent against Nokia.

Nokia welcomes today's ruling:

"Nokia is pleased by the court's decision in this case, which confirms that Nokia's products do not infringe HTC's patents."

The trial was held on May 31. I didn't attend that one due to a scheduling conflict, but I did attend two hearings (the second one of which was tantamount to a trial) held by the Munich I Regional Court over the same patent. HTC is suing Nokia Oyj (the Finnish parent company) in Munich and Nokia's German subsidiary in Mannheim. The first Munich hearing took place in mid-February. At the second hearing (i.e., trial) in late June it became known that HTC had in the meantime amended its complaints (in Mannheim as well as Munich) so as to accuse newer (Windows Phone 8-based) Lumia devices of infringement (the infringement allegations don't relate to Windows Phone per se, but to Qualcomm and Broadcom chips incorporated into the accused devices). Those additional infringement contentions were severed (a related hearing in Munich was scheduled for October 31, 2013. Today's ruling relates only to the originally-accused devices. The Munich court will rule on those older devices next week, and based on how it managed the case, I got the impression at the June trial that a dismissal is the most likely outcome there, too.

Bird & Bird is defending Nokia against HTC and is representing it in many of its offensive cases. Preu Bohlig is HTC's counsel in its offensive power management cases against Nokia. While it looks like HTC won't win those, Preu Bohlig did a great job defending HTC against Apple in several German actions (none of which was adjudged prior to last year's settlement, but HTC was in better shape than Google's Motorola with respect to the same patents).

Nokia succeeded with its own power management patent lawsuit against HTC: it won a Mannheim injunction earlier this year.

Nokia is asserting approximately 50 patents against HTC worldwide. In addition to the power management-related lawsuits, HTC also has a countersuit going against Nokia over a video codec patent. Wholly-owned HTC subsidiary S3 Graphics is suing Nokia, in Mannheim, over the alleged infringement of EP0797181 on "hardware assist for YUV data format conversion to software MPEG decoder" by the Qualcomm Snapdragon chip. A decision (which may or may not be a final ruling) was scheduled for September 20 (i.e., two weeks from today). I think HTC's S3G has a decent chance of winning something, but the impact of the injunction it might obtain will depend on the specific infringement theory on which the ruling will be based. The injunction could be easy to work around if a hardware feature that the software doesn't use merely has to be thrown out.

The Microsoft-Nokia M&A deal announced earlier this week may actually render HTC's countersuits against Nokia irrelevant from a practical point of view. In a matter of months, the Lumia devices will be Microsoft products. Microsoft and HTC entered into a patent license agreement in the spring of 2010 (the first of 20 Android-related patent license deals Microsoft has announced so far). I don't know the terms of that agreement but strongly doubt that HTC would sue Microsoft, let alone enforce an injunction against Microsoft, after the closing of the deal. In a strategic rationale document published this week, Microsoft discussed the cost-effective ways in which it can combine its own patent cross-license agreements with the benefits Nokia will assign to Microsoft under dozens of other agreements. HTC wasn't mentioned, but I'd be surprised if HTC had more favorable terms than the likes of Samsung and LG. I could imagine (and this is now somewhat speculative, but not without a logical basis) two reasons for which HTC wasn't mentioned: its ongoing litigation with Nokia and the fact that it doesn't play in the same patent league as the companies mentioned in Microsoft's slide.

Theoretically, if HTC obtained an injunction in the very near term against Nokia and enforced it, it could hope that this would make Nokia back down, but patent monetization is going to be so key to Nokia in 2014 and beyond that I believe it would take a strategic, long-term perspective on this. Also, Nokia could even take some risks with its workarounds: if those raised questions of fact that a German court would have to address, a contempt proceeding would likely take longer than the merger process, after which the whole issue would presumably go away at any rate.

HTC is defending itself extremely well against Nokia so far, but it will end up sending royalty checks to Finland, I'm sure.

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1.65 billion euro patent licensing portion of Microsoft-Nokia deal validates Nokia's portfolio

I just received Nokia's announcement of its 5.44 billion euro all-cash transaction with Microsoft under which (once closed) "Microsoft will acquire substantially all of Nokia's Devices & Services business, including the Mobile Phones and Smart Devices business units as well as an industry-leading design team, operations including all Nokia Devices & Services production facilities, Devices & Services-related sales and marketing activities, and related support functions".

Given that there have recently been more and more reports of increasing Windows Phone market share in different parts of the world, and seeing at the same time that one of the problems facing BlackBerry is uncertainty about its future, this move makes a lot of sense because customers now know that Microsoft, which has demonstrated its long-term approach to such businesses, is increasing its commitment to the mobile devices business. I agree with what Gartner analyst Carolina Milanesi said on Twitter:

"Today's news puts at rest doubts expressed by some that Microsoft would walk away f[ro]m smartphones. If this isn't commitment not sure what is?"

In my first reaction I just want to focus, obviously, on the patent-related parts of this deal. The deal structure is the opposite of the Google-Motorola deal: Google acquired Motorola, according to what it told the world at the time, primarily for its patent portfolio and was just required to take over the product business as well because Motorola's then-CEO told Google that, stripped of its patents, the device business wouldn't be able to defend itself against patent-wielding rivals. Google grossly overpaid for Motorola's patents. It currently has only one enforceable patent injunction in place against Apple (in Germany) and none against Microsoft, and the one against Apple will be history long before the end of the year. By contrast, Microsoft merely licenses Nokia's patents, but the remaining Nokia company, which will keep the HERE mapping and location software (of which Microsoft is expected to become a top three customer) and the NSN infrastructure business, will still own them:

"Under the terms of the agreement, Microsoft will pay [...] EUR 1.65 billion to license Nokia's patents [...]"

"Nokia will retain its patent portfolio and will grant Microsoft a 10-year non-exclusive license to its patents at the time of the closing. Microsoft will grant Nokia reciprocal rights to use Microsoft patents in its HERE services. In addition, Nokia will grant Microsoft an option to extend this mutual patent agreement in perpetuity."

"As part of the transaction, Nokia will grant Microsoft a 10 year non-exclusive license to its patents as of the time of the closing, and Microsoft will grant Nokia reciprocal rights related to HERE services. In addition, Nokia will grant Microsoft an option to extend this mutual patent agreement to perpetuity. Of the total purchase price of EUR 5.44 billion, EUR 3.79 billion relates to the purchase of substantially all of the Devices & Services business, and EUR 1.65 billion relates to the mutual patent agreement and future option."

"As part of the transaction, Nokia is assigning to Microsoft its long-term patent licensing agreement with Qualcomm, as well as other licensing agreements."

A "strategic rationale" document provided by Microsoft and published by AllThingsD's John Paczkowski clarifies that 8,500 design patents are indeed acquired, but not Nokia's utility (technical) patents. Design patents are typically not licensed to third parties. Here are the two patent-related slides of Microsoft's rationale document (click on an image to enlarge; this post continues below the two screenshots):

The fact that Microsoft would pay EUR 1.65 billion (almost $2.2 billion at the current exchange rate) for a 10-year license (including the option for a future extension) is a boost for Nokia's patent monetization aspirations. And Nokia's patent monetization -- which I've been watching (particularly the related litigations) for some time now -- will obviously continue. Other prospective licensees will deal with a company that is financially strengthened by this deal and can point to yet another "blue chip" licensee that has recognized the value of Nokia's portfolio.

Obviously, Microsoft could also have acquired that whole patent portfolio. But Microsoft already has an extremely strong patent portfolio (it simply has the highest "hit rate" in court of any smartphone-related litigant and has convinced 20 Android device makers of the need to take a royalty-bearing license, 19 of them without any litigation). That's why Microsoft -- unlike Google, which owned hardly any patents when it announced the Motorola deal more than two years ago -- didn't have to shore up its portfolio.

It's predictable that the markets will continue to speculate about potential M&A transactions involving the businesses and assets Nokia retains, including its patent licensing business and the related portfolio. I'm not going to engage in any such speculation, but assuming for the sake of the argument that a third party subsequently acquired Nokia's patent portfolio, I guess it wouldn't change anything in strategic terms for Microsoft. If someone bought those patents and stepped up enforcement, Microsoft and, by extension, Microsoft's customers (to the extent that they redistribute Microsoft technologies) wouldn't have to worry about it.

In closing I'd like to point to another structural difference between the Google-Motorola deal on the one hand and the Microsoft-Nokia deal on the other hand. The "Googlorola" break-up fee was $2.5 billion, reflecting desperation as well as concerns over antitrust approval. By contrast, today's announcement says that "[t]he transaction is subject to potential purchase price adjustments, protecting both Nokia and Microsoft, and a USD 750 million termination fee payable by Microsoft to Nokia in the event that the transaction fails to receive necessary regulatory clearances", which is a pretty standard level for such a fee, especially relative to deal size, while, compared to transaction value as well as in absolute terms, the Google-Motorola fee was extraordinarily high. There can be no doubt that today's deal is one of the most pro-competitive M&A deals in the history of the information and communications technology industry: consumers, wireless carriers, app developers and other stakeholders don't want the smartphone business to become a duopoly.

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Microsoft, Nokia, Huawei oppose InterDigital's push for ITC import ban on public interest grounds

Last week I reported and commented on public interest statements filed by Ericsson and the Innovation Alliance in the ITC investigation of InterDigital's June 2011 complaint against Nokia, Huawei, and ZTE. The Administrative Law Judge identified no violation, but he also rejected all FRAND defenses. Should the Commission (the six-member decision-making body at the top of the U.S. trade agency) overrule him on one or more standard-essential patents (SEPs), then the decision on whether to issue an exclusion order will depend on public interest considerations -- and in light of the Presidential veto of a SEP-based import ban won by Samsung, I can't see how InterDigital would get its way.

It's not 100% impossible that the ITC will at some point issue an exclusion order over FRAND-pledged SEPs. But I interpret the vagueness of the United States Trade Representative's veto letter as a clear sign that SEP-based import bans are acceptable only under very rare circumstances. InterDigital doesn't pursue Samsung's strategic objective (which is a cross-license involving non-SEPs), but that fact alone, though it is an important difference from an antitrust point of view, doesn't entitle it to an import ban either.

Three more public interest submissions -- made by Microsoft, Nokia and Huawei -- have become publicly available since my last post on this case, and I've uploaded them to Scribd. I can see that ZTE and InterDigital have also filed statements, but no public redacted versions of those submissions were available at the time of publication of this post.

Microsoft's statement stresses the importance of the Windows Phone platform as "the primary remaining competition for the Apple/Google 'duopoly' in the United States smartphone market". This claim is certainly supported by BlackBerry's decision to put its company up for sale, which was announced after Microsoft's submission to the ITC, which was made on August 7.

Microsoft's concern relating to SEP-based exclusion orders is well-known, but there's a five-page limit for such submissions, so Microsoft decided to focus on platform-specific considerations. At the end of its submission, Microsoft requests "that the Commission, should it find a violation of Section 337, take steps to allow further briefing and the development of a much fuller evidentiary record on the public interest implications of remedial orders". I believe the Commission could deny InterDigital's request for an import ban on SEP-specific grounds without even needing any further briefing. But I agree that at the very least there would have to be some further briefing on FRAND issues if an import ban would otherwise be ordered.

Nokia's filing starts with a reference to the Presidential veto in the Samsung-Apple case, in light of which "the Commission must decline, on public interest grounds, to issue an exclusion order" based upon patents declared essential to cellular standards (WCDMA and CDMA2000 in this case). I'm pleasantly surprised that Nokia takes such a clear "no exclusion order" position here, given that it supports Google's (Motorola's) appeal of the FRAND part of Judge Posner's ruling. In my observation Nokia's SEP-related actions have been far more reasonable than Motorola's, but its policy papers and public interest statements were closer to Google's position than that of, for example, Apple, Cisco and Microsoft.

Nokia mentions that it has asked the United States District Court for the District of Delaware to make a FRAND determination and says that "[t]he willingness to have a third party set a FRAND rate where parties cannot agree is tangible evidence that a licensee is willing, according to the US Federal Trade Commission".

Also, Nokia quotes Commissioner Pinkert's dissent from the majority ruling on Samsung's complaint against Apple.

The final part of Nokia's submission talks about Windows Phone, which it describes as "the only presently feasible alternative to iOS and Android". A footnote says that "[w]hen Nokia first announced its entry into the WP market in 2011 there were only 5,000 apps available for WP at that time; today, just 2 years later, there are 165,000 and counting".

Huawei's submission says that in the event of a reversal of the preliminary finding of no violation, "the Commission would be obligated [as a result of the veto letter in the Samsung-Apple case] to undertake further proceedings to develop a comprehensive record [particularly with a view to a DoJ/USPTO policy paper] and to permit the parties to set forth their views on how the principlesin the Policy Statement should be applied to that record". Huawei interprets the Samsung veto the way I do: there are only "narrow exceptions to the general rule against issuance of 337 injunctive remedies in aid of [SEPs]", which Huawei (again, just like me) believes InterDigital's complaint fails to meet.

Like Nokia, Huawei declares itself a willing licensee who has requested a FRAND determination, and refers to Commissioner Pinkert's dissent in the Samsung case, which "represents the efforts of one Commissioner to create [...] a framework" relating to FRAND/SEP-specific public interest factors.

In connection with the collective U.S. market share of the respondents in this investigation (which is relevant to the public interest from the perspective of consumer choice and healthy competition), Huawei also mentions Samsung, against which InterDigital brought an ITC complaint earlier this year (in that investigation, Nokia, Huawei and ZTE are Samsung's codefendants).

The debate continues, and it appears that InterDigital is desperately trying to achieve the impossible and win an import ban over FRAND-pledged SEPs.

[Update] Right after publication of this post I found the public version of InterDigital's statement. InterDigital argues that the circumstances are completely different here from the Samsung case and that exclusion orders must remain the norm. Also, InterDigital says that "one of the asserted patents (the '970) is not even arguably essential as to any standard practiced by the accused products, and therefore no FRAND considerations are applicable to the ‘970 patent in any event." (emphasis in original) [/Update]

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