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my take on it | 264 comments | Create New Account
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my take on it
Authored by: Anonymous on Thursday, December 13 2012 @ 12:44 PM EST
There's a big difference between "I won't pay unless it's $1 or less!" and "I'll pay the rate set by the court at the end of procedures, but if the rate is set to $1 or less, I'll stop contesting it *now*."
You're right. One is an attempt at coercion. If Apple were at all interested in paying what the court set as a FRAND rate they would not have bothered to say such a thing. Good grief! They were the party that brought this action. You'd think they'd have the guts to stick to their argument without welching at the last minute. I'd say that with most companies that are potentially going to lose $100m+ in royalties you could expect an appeal anyway. Apple didn't have to express their refusal to be obligated to an order of the court.

Apple to Judge: Please determine FRAND but we refuse to pay if we think it's too high.

Doesn't sound like that is Fair or Reasonable with respect to both parties. Doesn't sound Non-Discriminatory if other parties are paying more.

It's like PJ's claim that Apple complaining that Samsung's attempt to *add* more testimony 17 hours before the hearing (see 2 articles ago) was *actually* Apple complaining that Samsung was trying to fix an error.
If you don't ask you definately don't get. If you ask, there's a possibility... even if it's slim.

If there is (what you think to be) compelling evidence which had the possibility of exhonerating your client which you discovered just before a trial would you ignore it or would you at least make an attempt to provide the court with that evidence before the trial? Or would you do nothing and just sit there, embarressed at your mistake of not bringing it up earlier?

Procedure is important. We do actually get that. Our programs wouldn't work if we didn't understand that.

Quite funny seeing Apple complain about Samsung circumventing page limits though.

It's also amusing becuase it's basically what you did. You submitted opinion with no evidence. You then provided a case with no explanation expecting the hundreds of people to look things up so that they could understand your point. What a collective waste of time that would have been if we'd all done that. Instead you could have made your point and avoided a lot of frustration. Then you talk about "Nimmer - you know, treatise". We don't know... we're not lawyers. We are kinda like children - some are older and understand more - and often need pointers (eg links) and reasoning. You've got to try to explain things to us like we are children... little words that don't scare us or big words with explanations. It's what PJ does wonderfully.

You said at one point that Samsung's counterclaims were actually, legally offensive to counter someone else's point that Samsung was using their FRAND patents defensively. I've heard that the best defence is a good offence. Samsung are using their FRAND patents defensively in their counterclaims whether you (or the legal system) define a counterclaim as being offensive or not. They brought the counterclaims because they had to do something to try to reduce Apple's winnings just in case Apple were successful. Pedantism like that is what annoys people about some lawyers who post on this site.

So, back to Posner since you agree with what he says, would you agree that if

  • Apple refuse to negotiate and
  • refuse to pay a FRAND royalty and
  • a court isn't the right venue for determining a FRAND royalty

    then it is only reasonable that non-monetary sanctions, such as an injunction, should be made against Apple?


    [ Reply to This | Parent | # ]

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