The FRAND contract trial between Apple Inc.(NASDAQ:AAPL) and Google Inc(NASDAQ:GOOG) is slated to start on 5th November. However, since Judge Posner canceled the patent infringement trail between Apple and Motorola Mobility, it would not be wrong to guess that the FRAND trial will face the same fate.
On Friday, Judge Barbara Crabb had behaved in somewhat unfavorable manner to Apple’s qualified eagerness to enter into a patent license agreement. Apple had mentioned that it would take authorization to Motorola’s wireless SEPs on the basis of a court determined FRAND royalty fee and only if the rate does not exceed $1/ iPhone. Apple also said that it would tire out all appeals and allow the entirely-owned Google subsidiary to continue with its SEP breach actions.
Judge Crabb is not keen on ordering Motorola to make Apple a proposal if the sole purpose of the offer will be to provide Apple with a negotiating chip. At a pretrial meeting, Judge Crabb had already expressed concerns over deciding a FRAND rate that may be only used as a negotiating tool between both the parties. She has given this question further thought and now is of the opinion that it would not be fitting if she grants Apple’s clarified request for particular performance.
Judge Crabb is not willing to order Motorola to make a licensing offer to Apple and also she is not prepared to wrap up that the court would not announce a specific FRAND rate for Motorola’s patents. She raises the question of what purpose would be served by a declaration on court’s behalf that Motorola’s actions entailed a violation of its FRAND contracts.
Apple is confronted with two challenges at the moment. It needs to deal with Judge Crabb’s concerns at the legal level. It also needs to stop behaving like an arrogant litigant trying to take advantage of the court system.