In the patent world there are some patents, called FRAND patents, that are considered to be industry standard. These patents, decided upon by standard setting bodies, must be fairly licensed to all interested parties. Google, the parent company of Motorola Mobility who owns quite a few FRAND patents, is now arguing some proprietary technology should be provided the same licensing protection as FRAND patents.
The following is an expert from a letter written by Google’s General Counsel Kent Walker to the U.S. Senate Judiciary Committee:
While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. […] Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee’s concern regarding the abuse of SEPs should encompass them as well.
Google is attempting to convince the Judiciary Committee that due to the popularity of smartphone/tablet features such as multi-touch, slide to unlock, automatically hiding scroll bar, etc. companies are forced to include the features in their products. As such, the patent holders of these technologies (*big cough* Apple * big cough*, *small cough* Microsoft *small cough*) should be forced to fairly license those patents — just like FRAND patents.
Apple, of course, isn’t going to take this sitting down. Apple’s General Counsel Bruce Sewell also wrote a letter to the U.S. Senate Judiciary Committe; the following is an expert from it:
That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards. [...]
The capabilities of an iPhone are categorically different from a conventional phone, and result from Apple’s ability to bring its traditional innovation in computing to the mobile market. Using an iPhone to take photos, manage a home-finance spreadsheet, play video games, or run countless other applications has nothing to do with standardized protocols. Apple spent billions in research and development to create the iPhone, and third party software developers have spent billions more to develop applications that run on it. The price of an iPhone reflects the value of these nonstandardized technologies — as well as the value of the aesthetic design of the iPhone, which also reflects immense study and development by Apple, and which is entirely unrelated to standards.
In response to Google’s assertion that popularity of a technology should entitle it to the same protection as standards, Apple is saying popularity is not equal to standard. Popularity arises from investment and innovation; a technology becomes popular because of its appeal to the consumer. Standards, on the other hand, are developed or standardized to enhance interoperability between devices, companies, people, etc. Standards are there to make it easier to communicate between devices or products of unrelated companies. The technology behind an iPhone helps create a differentiated product; the features of an iPhone have nothing to do with the interoperability between devices and thus should not be treated like a standard.
While I am no Apple fan, I personally feel Apple’s argument is more logical than that of Google’s. However, my personal views aside, both Google and Apple have logic behind their assertions. Google has a point that popularity of a technology might make it commercially necessary; not fairly licensing that technology will not only hurt competition but also innovation because companies cannot build upon it. Plus there is also an unspoken point-of-view that it isn’t exactly fair that some companies spend millions to develop a technology only to have it declared a standard while other companies get to use that technology to develop their own proprietary tech. Apple also has a point that non-interoperability technology has nothing to do with standards and treating product differentiating technology like FRAND patents will likely mute innovation. Obviously two letters to the Senate won’t solve the fundamental issues at hand; Google, Apple, and other (like Microsoft) will continue to duke it out in court until a concrete decision is reached… or maybe forever.