After withdrawing its complaint against Qualcomm, Nokia filed a suit against Apple claiming the iPhone infringed on Nokia’s wireless technology. Both parties stipulated to an extension for Apple to answer the complaint, and with that answer came a countersuit. Apple alleges infringement of 13 patents, and effectively claims that Nokia copied iPhone technology and design, only to accuse Apple of infringing that very technology and design.
One of the issues in the dispute is whether the alleged Nokia patents are essential to a standard set by ETSI, a european standard setting organization. When access to patents are essential for a competitor to comply with a standard, the owner of those patents is (theoretically) required to license those patents to competitors under Fair, Reasonable, and Non-Discriminatory terms (F/RAND terms). If the patents at issue in this case are found to be essential to the standard, Apple claims that the royalty fees charged by Nokia are excessive–a claim that echoes the issue in the Qualcomm case.
More interestingly, Apple alleges that Nokia demanded reciprocal licensing of Apple technology as a requirement to license the essential Nokia patents. Basically, according to Apple, Nokia pledged certain patents to industry standard use, and then when it came time to license those patents under F/RAND terms, leveraged those patents for excessive royalty fees, and demanded a free-ride on competitor (Apple) technology. If Apple’s allegations are true, this sounds like a hold-up: once patents are pledged to a standard, all competitors need access to those patents in order to comply with the standard. When access to those patents is provided only upon surrender of the licensee’s other non-essential patents, licensees are presented with the faustian choice between non-compliance or surrender of intellectual property. This doesn’t sound like the “fair” or “reasonable” that the doctrine of “fair, reasonable, and non-discriminatory” contemplated. It actually sounds like an anti-competitive free-grant-back.