Now, Google is hardly alone in abusing patents, but a German high court’s ruling against Motorola shows that Google is just adding to the list of its monopoly abuses by playing the patent abuser game.
The ruling stemmed from Google demanding that companies either pay an absurdly high patent license fee — in this case 2.25 percent of the retail price of goods like iPhones using the disputed technology — or bar the sale of the products. The German high court ruled that trying to block sale of the competing product using the patent would be a violation of antitrust law.
Since the disputed technology is part of basic standards used for wireless devices, they are covered by what’s called fair, reasonable, and non-discriminatory (FRAND) terms. What’s a fair license fee under FRAND is not clear and there is a lot of litigation required to decide whether and how much Apple will have to pay Motorola for the patents in dispute.
But what the high court did make clear is that death dealing injunctions barring sale would not be allowed for patents involving core technology standards.
Patents are a mess to begin with and patents involving core shared technology standards are even messier, so a number of companies, including Apple, Microsoft, and Cisco have asked the European Telecommunications Standards Institute (ETSI) to come up with clear rules on enforcing FRAND principles. Google tried to go its own way in Germany’s courts and got slapped down pretty hard. As ArsTechnica argues:
With increased scrutiny promised by the Department of Justice and the European Commission on the condition of granting approval of the merger, however, Google may want to rethink that strategy. So far it appears to be a losing one.