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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Newspicks commentary here | 60 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: SpaceLifeForm on Thursday, July 04 2013 @ 07:01 PM EDT


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Comes here
Authored by: SpaceLifeForm on Thursday, July 04 2013 @ 07:04 PM EDT


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Newspicks commentary here
Authored by: SpaceLifeForm on Thursday, July 04 2013 @ 07:08 PM EDT
Please include a link to the article you are
referencing as they will roll off of the main page.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Thursday, July 04 2013 @ 07:11 PM EDT
A quad on the quad as it were.
Please make any links clickable.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Why Would Washington State Law Govern?
Authored by: Anonymous on Thursday, July 04 2013 @ 10:05 PM EDT
What grounds does the judge use to insist that Washington State law is the
governing law for the RAND contract? That seems wrong from the start.


[ Reply to This | # ]

A powerful argument
Authored by: Anonymous on Friday, July 05 2013 @ 12:01 AM EDT

“Because the IEEE and the ITU agreements anticipate that the parties will negotiate towards a RAND license, it logically does not follow that initial offers must be on RAND terms. Here, critical to the court is the observation that RAND terms cannot be determined until after a negotiation by the parties. . . As stated above, the purpose behind the IEEE and the ITU agreements is to ensure widespread access to standard essential patents. Thus, a requirement that the standard essential patent holder (here, Motorola) make unsolicited offers on RAND terms would frustrate this purpose by discouraging the standard essential patent holder to make initial contact with implementers for fear that it will later be sued for making an initial offer that is later determined as not RAND. Accordingly, the court concludes that under Motorola’s agreements with the IEEE and the ITU, Motorola need not make initial offers on RAND terms.”

"Reasonable" does not exist in a vacuum. RAND terms are in the eye of the negotiating parties. If there is no counter offer, there is no way to say whether the offer was reasonable or not. Microsoft was clearly in breach of good faith negotiation when they went crying to the judge instead of making a counter offer.

[ Reply to This | # ]

Judge Sotomayor would have ruled against Microsoft
Authored by: Anonymous on Friday, July 05 2013 @ 12:29 AM EDT

...the district court rejected a claim that a party had breached its duty of good faith and fair dealing under New York law by making an offer “insisting upon terms it knew would be deal-breakers.”

Then-Judge Sotomayor noted that “[n]othing in the duty of good faith requires that parties to a negotiation propose only such terms as the other party is happy with,” and that any such rule “would turn the normal negotiating process on its head.”

The court contrasted the claim it rejected with hypothetical cases in which it acknowledged bad faith might have been plausibly alleged: e.g., if the defendant had “sat back for the thirty-day period and refused all of [the counterparty’s] terms while offering none of its own”...

...“there was no good faith effort to resolve the parties’ disputes through negotiation,” reasoning that “back and forth, low ball high ball negotiations ... are nothing unusual” and emphasizing that “just because one side views another side’s settlement offer as unreasonable does not mean that the offer was made in bad faith”.

It's like she anticipated Microsoft's antics.

This comment and the one above by Gringo - not logged on.

[ Reply to This | # ]

Can the judge undo the bad ruling he made in favour of M$FT?
Authored by: Anonymous on Friday, July 05 2013 @ 12:50 AM EDT

Googorola concludes, after many examples of very strong case law to back it up, that...

...considerable case law in other contract contexts establishes that the amount of any single offer alone, especially an initial offer designed to get negotiations started, cannot be dispositive of a breach of good faith and fair dealing.

This judge clearly made an error. Is it too late for him undo it now?


[ Reply to This | # ]

Authored by: Anonymous on Friday, July 05 2013 @ 04:32 AM EDT
From Motorola's public statements that I
remember, the 2.25% royalty rate covers
all of Motorola's SEPs across all
standards that the device implements.
However the judge only set the royalty
rate on two standards. Does these
Microsoft's devices at issue implement
other standards? Also what about future
devices that implement additional
standards? We're back to the courts...

That across all standard then starts to
become a discount with lots of implemented

[ Reply to This | # ]

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