The DOJ’s recent press release on the Google/Motorola, Rockstar Bidco, and Apple/ Novell transactions struck me as a bit odd when I read it. As I’ve now had a bit of time to digest it, I’ve grown to really dislike it. For those who have not followed Jorge Contreras had an excellent summary of events at Patently-O.
For those of us who have been following the telecom patent battles, something remarkable happened a couple of weeks ago. On February 7, the Wall St. Journal reported that, back in November, Apple sent a letter to the European Telecommunications Standards Institute (ETSI) setting forth Apple’s position regarding its commitment to license patents essential to ETSI standards. In particular, Apple’s letter clarified its interpretation of the so-called “FRAND” (fair, reasonable and non-discriminatory) licensing terms that ETSI participants are required to use when licensing standards-essential patents. As one might imagine, the actual scope and contours of FRAND licenses have puzzled lawyers, regulators and courts for years, and past efforts at clarification have never been very successful. The next day, on February 8, Google released a letter that it sent to the Institute for Electrical and Electronics Engineers (IEEE), ETSI and several other standards organizations. Like Apple, Google sought to clarify its position on FRAND licensing. And just hours after Google’s announcement, Microsoft posted a statement of “Support for Industry Standards” on its web site, laying out its own gloss on FRAND licensing. For those who were left wondering what instigated this flurry of corporate “clarification”, the answer arrived a few days later when, on February 13, the Antitrust Division of the U.S. Department of Justice (DOJ) released its decision to close the investigation of three significant patent-based transactions: the acquisition of Motorola Mobility by Google, the acquisition of a large patent portfolio formerly held by Nortel Networks by “Rockstar Bidco” (a group including Microsoft, Apple, RIM and others), and the acquisition by Apple of certain Linux-related patents formerly held by Novell. In its decision, the DOJ noted with approval the public statements by Apple and Microsoft, while expressing some concern with Google’s FRAND approach. The European Commission approved Google’s acquisition of Motorola Mobility on the same day. Continue reading →