Antitrust Concerns Over the $4.5B Apple-Microsoft-RIM Patent Purchase

by Dennis Crouch

In most cases, patent enforcement actions and resulting license agreements (settlements) avoid antitrust scrutiny.  However, both exclusive licenses and patent assignments are treated just like any other asset acquisition and are more likely to trigger antitrust review by the Department of Justice (DOJ) or Federal Trade Commission (FTC).

Earlier this summer “Rockstar Bidco” won the largest patent auction to-date by offering $4.5 billion for 6,000 patents held by bankrupt Nortel.  Rockstar outbid Google, whose final offer was $100 million short.  Rockstar is a collaborative shell company led by Microsoft, Apple, and Research-in-Motion.  Its not surprising that the patents largely relate to high speed mobile networking. 

The Market: In the US, these four players (Microsoft, Apple, RIM, and Google) currently own the market for smartphone operating systems. However, the Rockstar members relative market shares continue to drop as Google’s Android system rapidly grows. As part of the background, these companies have been rapidly building their patent portfolios and exerting them as a mechanism to both earn royalties and shut down competitor activity.  For example, earlier this month the US International Trade Commission (USITC) ruled that HTC phones running Google Android software infringe a number of Apple’s patents. HTC already pays $5 to Microsoft for each of its Android phones.

Back to the Nortel Patent Purchase: The bankruptcy court has approved the sale after being told by Nortel that “there’s no antitrust risk to the deal.” However, according to the Washington Post, the Department of Justice is still considering whether the purchase would violate US antitrust laws. In April 2011, the DOJ intervened in a similar (but much smaller) purchase of 882 Novell patents by Microsoft, Oracle, and Apple to require open source licensing of the patent rights in certain situations. In that case, however, Novell had already made open source commitments. 

Google’s Own Antitrust Problems: I used three primary sources in writing this article: internet searching (i.e., Google search), e-mail correspondence (i.e., Google mail), and phone calls (i.e., Google Android phone).  (Here is my Google+ page).

61 thoughts on “Antitrust Concerns Over the $4.5B Apple-Microsoft-RIM Patent Purchase

  1. 61

    Prof. Crouch, I don’t understand the implication in the final paragraph of this post (“Google’s Own Antitrust Problems”). That Google has dominant products in a variety of services does not mean that Google has a monopoly over any of them. Indeed, Google has good competition in each of the services you mention (search, mail, telephony, social networking) by big players like Yahoo!, Microsoft, Apple, and Facebook and insurgent market entrants as well. There would appear to be plenty of consumer choice in each of these areas. Where is the antitrust issue?

  2. 60

    See, now that wasn’t so bad.

    I would welcome a discussion of Selden. It has a lot of ramifications on only on the issue of trolls, but exclusionary patent pools and the antitrust issues of the main post by Dennis.

  3. 59


    You will have to excuse me for not following up on the Selden links.

    My feelings are too hurt by the malicious and unfounded attacks foisted on me today.

    Also, the USPTO has published their proposed rulemaking on the revision of the materiality to patentability standard for the duty to disclose information in patent applications following the Therasense case, and I want to be sure that I can discuss the issues appropriately tomorrow.

    Have a wonderful evening.

  4. 58
    Hardworking Victim of Ned's Personal Attacks and Noticing Yet Again that That's the Thanks I Get For Helping Him says:

    Jared said NPEs are not the problem per se.

    Sorry Ned, where do you see this?

    Jared had one post here – do you see another that I do not?

    This is exactly and completely what Jared said:

    Jared said…
    If you own a patent, but you do not use the patented invention in a product or service, you are still entitled to enforce your patent.
    You are known in the world of patents and patent enforcement as a “non-practicing entity” or “NPE” — or more rudely put, a “patent troll.”
    Reply Jul 20, 2011 at 02:27 PM

    Once again, you make things up here in attempts to cover your mistakes. Now my holding you accountable for your mistakes (in the effort to make you better) ends up with you calling this “rude” or “making personal attacks” may make you feel better, but I have been neither rude, nor have I made any personal attacks.

    I have been precise.

    I have been polite.

    And I have been been completely accurate without any distortions.

    What Krystal did was point out the truth that you hijacked the thread from what Jared actually said. And just like you got Michel wrong, you have gotten Jared wrong and you have gotten Krystal wrong.

    And you have gotten me wrong:

    Then you piped in and said I had it all wrong, but in the end, we both agree that NPEs are not trolls per se, that Jared said this, that I said this, and that Michel said this as well.

    This is not only quite a misrepresentation, Ned – it is an outright l_ie.

    It is a blatent twist of what actually has been going on here. I showed you explicitly why what Michel had to actually say just did not align with what you purported Michel to say.

    What I have discussed, you are choosing not to accept – you can choose not to accept it, but please do not blatantly mischaracterize the conversations here. You said above that I had distorted the record – SHOW ME WHERE – precisely. I want to see my so-called distortions.

    If you do not like being wrong, then try harder in not being wrong. But do not get all huffy when I show you that you have overstated and misstated your case (again). My pointing out such mistakes of yours is neither rude, nor a personal attack – it is an attack on the position you make and a gentle and helpful nudging by me trying to help you not lose your credibility.

    For all this help, it is I that suffer the personal attacks from you by being called rude and a cretin.

  5. 57

    Hard, again Jared said NPEs are not the problem per se. I agreed with Jared. I further pointed out my views that the problem was the assertion of overbroad patents that claimed subject matter the inventor had not invented. I cited Lemelson. Krystal disagreed with my characterization of trolls. I demurred, citing Michel for support for the proposition that NPEs are not the problem per se. Michel even referred to the “asserted problem” which is the assertion of non infringed and invalid patents even though he did not agree that this was a problem in fact.

    Then you piped in and said I had it all wrong, but in the end, we both agree that NPEs are not trolls per se, that Jared said this, that I said this, and that Michel said this as well. Yet you continue to insist that I have Michel 100% backwards and that I am wrong.

    I think it is clear that you really do not want to discuss trolls, NPEs, overbroad patents, or anything of that ilk. What you are interested in is playing games and making personal attacks, just like Um no.

  6. 56


    ending up with a complete distortion of the record.

    The record is clear – this whole dialogue stems from Jared’s post (or are you denying that Krystal’s response was geared to you hijacking the thread from Jared’s point?

    Be careful in your denial of that fact – it is as clear above as, well, crystal. And if you persist in such slander, I would be please if you point to any specific distortion in my posts here (you won’t because you can’t).

    And as for you calling me a cretin when I am trying to help you understand where you stray by your propensity for overstatements and misstatements (and the subsequent denials – of which the immediate post of yours is yet more evidence) – that is downright rude.

    The proper thing to say is “Thank you,” even if your feelings are bruised by being faced with your own errant behavior.

  7. 55

    Listen Hard, Krystal said “Ned comments have nothing to do with the concept of “troll.” I begged to differ, citing Michel, who made it plain that he disagreed that NPEs were per se trolls.

    Now you have gone off on a rant about me, Michel, and a lot of side issues that have nothing to do with the topic of discussion, ending up with a complete distortion of the record.

    I will not continue this inane conversation with someone who basically has no interest in discussing the issues, but rather has an interests in personal attacks. You, sir, are a cretin.

    Begone, Hard.

  8. 54

    RIM will be able to apply the teachings of this operation when it itself goes bust…

    Those Blackberry bearer instruments should look great pasted next to the Northern Electric wallpaper.

  9. 53
    Hardworking and Trying to Have Ned Understand That the Point Here is the Lack of Credibility Engendered by Egregious Overstatements says:

    I said, “The real problem comes when patents hold up the industry with broad, indefinite claims.”

    Michel goes on to dismiss the problem because real cases show that the patents actually are valid and infringed.

    In a nutshell, Ned – your glossing over this point typifies your inability to understand why I point out your deficiencies. This is not “manufacturing a dispute” as much as having you understand your propensity for overstating and mistating your position.

    Such behavior by you (and the subsequent denial of the behavior) is where you lose credibility in your other arguments.

    I have not gotten to the excellent links on Seldon, but I am sure that Michel was not referring to Seldon either.

    Reviewing this thread, the original comment by Jared at 2:27 PM above defines the scope and shows how much you have gone off the rails here. Krystal was indeed correct that your overstatements and subsequent introduction of the Lemelson and Selden cases simply amount to a thread hijack from the point being made by Jared.

    Not sure if you consider the attempt to maintain focus as “rude,” but your exuberance and rebranding of the current use of the perjorative “troll” – which is exactly on point by the Michel interview only shows your misunderstanding of the current day issue.

    The history lesson is great. Thanks. But it just isn’t on point to what Jared states.

    Now, then, if you are not too proud to actually listen to what I say, then you might learn something. If not, eh, I tried to help you (even at the risk of being called “rude”).

  10. 51

    Listen Hard, you are tring to manufacture a dispute where there most likely is none. Michel went through the list of complaints about trolls/NPEs, one by one, and dismissed them. We agree on that.

    Now what did I say Michel said?

    Quoting me: “Licensing entities make money for inventors (according to Michel) and that is pro-patent system.”

    What did Michel say: “NPEs may add value to the patents by buying them up when manufacturers decline to do so. Inventors may have benefitted from the developing market in patent acquisition. What is so bad about that? Patents are meant to reward invention.”

    Also, Michel also said ,”The ‘problem,’ as asserted, is that most NPE infringement suits are frivolous because the defendant plainly does not infringe or the patent is invalid.”

    I said, “The real problem comes when patents hold up the industry with broad, indefinite claims.”

    Michel goes on to dismiss the problem because real cases show that the patents actually are valid and infringed.

    While Michel argues for a complete whitewash of NPEs, I do not fully agree. I agree to the extent the NPEs license clearly valid patents that are clearly infringed. But I do not agree, and perhaps this is where you think that I got it wrong, that there are no trolls. I think there are. I think Lelemson was a classic troll. I think that Selden, now that I have read up on him, was as well. But I, as does Michel, do not agree that the problem is NPEs per se.

    Now, if you actually know anything about the Lelemson patents you will know that he did not invent the bar code reader, but his claims were broad enough to cover bar code readers because they covered optical recognition of marks. Further, Lemelson’s strategy was keep his license demands low enough so that litigation was vastly more expensive.

    Lemelson was a troll in every sense of that word. He was an NPE. He had patents with broad and indefinite claims that held up entire industries. His licensing strategy was to keep his royalty rates less than the cost of litigation. His claims were asserted to be non infringed or invalid for a number of reasons, but no one wanted to test them all the way.

    Now look to Selden. His patent on the car had the same problem: overbroad claims, not clearly invalid. Because royalties were low, most took out a license. Ford would have too, if the cabal had not exclude him.

    Circling back, what is it that you really dispute? What is it that you say I have wrong? Are you actually saying, as did Krystal, that Lemelson or for that matter, Selden, were not trolls? Are you saying that?

  11. 50

    The problem is that you think you know what the problem is and you stopped listening to what others are telling you the problem is.

    One can even draw an analogy, simple and elegant, and Ned Heller would refuse to engage in any further conversation because that would expose his error.

    Such a willfully blind person thus makes suspect anything else he contributes, the evident bias tainting all that he has to say.

  12. 48

    The Selden case is a prototype example of the troll phenomena. Selden customized a known engine to provide more power with less weight so that it could drive a carriage. Rather than claim the improved engine or the improved engine in the combination, he essentially claimed all gasoline engine-powered cars.

    He made his prototype engine/car in the 1870s, filed his patent application in 1879, prosecuted the patent application as slowly as possible. It issued in 1895.

    At the time he filed his patent application, there were no other gasoline powered cars in existence. By the time his patent issued, the industry was established in Germany and France, and was growing like gangbusters in the United States.

    He soon sold his patent to Columbia and Electric Vehicle Company, which operated 2000 electric cabs in New York. The company then began offering licenses at 5%. The company sued the Winton company, then the largest manufacturer of automobiles in the United States. They were represented by Kenyon and Kenyon, who filed a demurrer based upon patent invalidity. They lost. Winton was about to concede when a large group of automobile manufacturers approached Selden and Electric Vehicle and made an offer that Electric Vehicle could not refuse: they offered to take out licenses under the patent for royalty of 1.25%, to be split between the Association of Licensed Automobile Manufacturers and Electric Vehicle and Electric Vehicle. If their offer was refused, they would fund the Winton defense. The offer of course was accepted, and Winton soon joined the Association.

    A short time later, Henry Ford formed that the Ford Motor Company and applied for a license. The Association, denied Ford’s request. They then sued Ford. Ford did not capitulate but fought. He lost in the lower court, but appealed to the Second Circuit. In 1911, with only one year left of patent term, the Second Circuit upheld the validity of the patent, but limited the claims to the improved engine/car that Selden had developed, and not to every gasoline engine-powered car.

    Henry Ford was treated as an American hero for breaking this patent. But there are lessons here. First is that the courts, if pressed, will construe the claims to cover the corresponding structure recited in the specification and equivalents. It was quite clear that the claims in the Selden patent extended to cover automobile engines that Selden had not invented. This is the real story of the patent case, even though the court justified its narrow construction to preserve the validity of the patent.

    A second lesson we can learn from the Selden patent case is that groups of competitors who acquire patents that may control market entry, such as actually happened when Henry Ford was “excluded,” are inherently anti-competitive. I think we can I see why the American Justice Department is looking at the Nortel patent acquisition.

    My, how history repeats itself.

  13. 47
    Hardworking Bookwriter since the Truth Hurts and Ned Needs to Be Aware of Where He Has Gone Off the Rails and He Needs to Understand What Michel Actually Said says:


    First, good morning, I trust you slept well.

    Now then, I want to point out your tendency to read into a situation that what you want to. This is a perfect example. You already have in your mind that “troll” means something and you are taking the Michel interview and reading into both the question (since the word “troll” was used) and the answer your desired meaning.

    It would help you to realize your bias from the start, if you can.

    The question is explicit in that NPE’s are the asserted “trolls.” You must have this baseline understanding before we move on.

    The idea under consideration by Michel is that because NPE’s are NPE’s they are being singled out. The assertion (that which is being asserted) is that an NPE only has a patent to sue, since an NPE is not out to make the invention they are already suspect, and thus (the cannard) the NPE’s invention (as claimed) must also be suspect. The point here is not how it is suspect (this is where you go off the rails). The point is that the culprit is the NPE.

    This is a classic witch hunt.

    Your experience makes you jump the gun and claim any problem is a “troll.” You are simply not understanding the current meaning or use of the term. You have jumped the gun to what Michel means because we really haven’t even got to the meat of what Michel is saying, we have just gotten through the question.

    Krystal was kind enough to nail the proper perspective above when she quotes what Michel actually says: In any event(no matter how you look at it – which defuses your experienced laden bias),I consider this “problem” (note the further defusion here by Michel by the “problem” being in quotes), to be greatly exaggerated.”

    Michel then goes on to actually discuss why NPE’s (the focus of the question) are not to be perjored as “trolls.” Michel understands exactly why the term is used – to denigrate a certain class of patent holders.

    It is in this context that the “assertion” (by those ha_ting NPE’s) of frivolous infringement suits is being thrown against the NPE’s.

    But Michel expressly dismisses the assertion: But, many of the suits result in findings of infringement of a valid patent, and hardly any result in a judicial finding of a frivolous suit. Therefore, I question how big a problem actually exists.

    Michel is actually saying the opposite of your pre-ordained view. Your jumping the gun because of the assertion loses what Michel actually says about the assertion, and more importantly for the context of the interview’s actual question, what Michel says about those using the term “troll” specifically against NPE’s.

    You proceed to ignore the continued paragraphs about “troll”-NPE tie in and Michel’s continued defense of the NPE.

    The point in all this is Michel disentangling the asserted slander against NPE’s being “troll’s” because they are NPE’s.

    You simply lose the point of the discussion – nowhere is Michel even remootely discussing hte problem of Lemelson. It is only your preconceived notion of Lemelson being a problem that makes you read into what Michel is actually saying.

    It is as if your blinders are a rose colored blindfold (in this case a “troll”-colored blindfold), and everything you see is tinted rose (everything is “troll,” so in your mind, Michel must be talking about Lemelson as a “troll”)

    The problem is that you think you know what the problem is and you stopped listening to what others are telling you the problem is.

    The “rude” fact is that you are wrong. You need to understand the actual discussion that Michel was having – a defense of the NPE. This defense was against multiple “assertions” – the NPE brings frivolous lawsuits, the NPE uses the expense of the lawsuit as a weapon, the NPE should be barred from suiing, the NPE abuses venue, the NPE preys upon damages. All of these assertions are thrown explicitly against the NPE and Michel is countering each of these – in explicit light of the NPE.

    That is what he was saying.

  14. 46

    Hard, OK, what does this mean?

    “The “problem,” as asserted, is that most NPE infringement suits are frivolous because the defendant plainly does not infringe or the patent is invalid.”

    Since I have had real experience with Lemelson and many many others of his ilk, I know what Michel means and I know what the problem is.

    I was very surprised that the famous Selden patent had the very same problem — broad indefinite claims. Selden invented a gasoline engine that was light enough and powerful enough to move a car. He invented nothing else. Yet he claim to have invented every car that had a gasoline engine.

    See the problem?

    See how the courts resolved it?

    Now, clearly Selden and his NPE ALAM were trolls. But what was the real problem?

    Now, circle back to what Michel actually said. What was he saying?

  15. 44

    My real objection to unfounded antitrust speculations is

    Why should antitrust speculations get any different treatment here?

    Take my wife, please.

  16. 43

    And Krystal,

    Do not act surprised that Ned is wrong. He often is. Try not to be rude about it.

  17. 42


    Thank you for the marvelous links.

    All the more sad that I must be rude to you and call you out for once again making things up out of whole cloth (at least on the Michel reference).

    Let’s start with the good Chief Judge Michel(retired). This was the first time I had the chance to read the entire interview (only seeing bits before).

    So it was with great enthusiasm that I read the entire interview. And (not surprisingly) there is no concievable way that you can take anything Michel says as equating “troll” with the “overly-broad and posibly indefinite” claim “problem.”


    In fact, not only does he dismiss the notion of “troll,” but he embraces what is understood as “troll.” If there is any problem whatsoever with lawsuits, he states that “every other kind of lawsuit in Federal court suffers the same ills.

    So I guess with every person that disagrees with you comes the label of being “rude,” every kind of lawsuit is plauged by “trolls.”

    There simply is not a shred of anything remotely feasibly logically available in the interview that you can even desparately reach to support your supposition that Michel agrees with your view of what a “troll” is.

    You need to say more than what a “troll” is not, to say that Michel agrees with what you would call a “troll.”

    I will get to the Selden links tomorrow.

  18. 41

    Hey Krystal, read up on the Selden patent litigation. It is really an eye opener for the topic of trolls.

    For example, the court of appeal concluded “In conclusion, the court found, that if the claims be narrowly construed to cover only Selden’s specific con- tribution to the art they could be held valid. So con- strued they were limited to the combination of a Brayton engine with a road vehicle; and since defendants used the Otto engine, the claims were not infringed.”

    The claims themselves were to any “hydro-carbon” engine in combination. But the inventor only disclosed one kind of such engine. His claims were limited to what he disclosed.

    The Selden patent was “acquired” by an NPE, ALAM, who licensed the patent as a group and made a lot of money off of it. But the only way they were able to do so is by pressing the very broad claims. So, the problem of the Selden patent was not the NPE nature of the licensing entity, but the overly broad claims.

    Wrong am I?


    Do you really really believe that the problem of trolls lies in their NPE status and not in their asserting patents with broad and indefinite claims. Do you really really believe that?

    link to

  19. 40

    The problem is (and always has been) the definition of “troll.”

    The fact of the matter is that those who litigate over “overly-broad and possibly indefinite” claims are by no means restricted in any way to NPE’s or to even those who to themselves feel that their claims justly cover what they have invented.

    The “feel” for what is truly overly-broad and possibly indefinite is an unknowable thing.

    That is why the term “troll” itself is a perjorative tool for those who seek to discredit the entire concept of “patents.”

    It is an evil term used by evil people.

    As to the Michel interview, tellingly, the first quote from Michel on “trolls” is:

    IPW: Finally, will the bill address the problem of non-practicing entities [so-called “patent trolls”]?

    Judge Michel: No, it will not. In any event, I consider this “problem” to be greatly exaggerated.

    So, even if one contorts “troll” to cover what Ned thinks, Michell thinks that even this as a problem is greatly exaggerated.

    Even if Ned is right, Ned is wrong.

  20. 37

    Do you have a link or source for Judge Michel’s recent interview. Sounds like what I’ve been thinking. There’s nothing inherently wrong with NPEs or whatever you want to call them. The problem is that there are certain NPEs that attempt to enforce indefinite patents; or worse yet, some that have pretty objectively baseless claims of infringement but get away with it because their settlement offers are cheaper than litigating.

    (I know a lot of commentators here like to defend NPEs and don’t like “troll” terminology. I’m sure there are NPEs who have a useful purpose and benefit inventors, etc. But there are also some quite nasty ones out there who deserve to be named “trolls.”)

  21. 36

    Kystal, did you read Judge Michel’s recent interview where he discussed patent trolls and NPEs in the same terms I just did? I suspect not.

    Licensing entities make money for inventors (according to Michel) and that is pro-patent system. The real problem comes when patents hold up the industry with broad, indefinite claims. We have had, in history, real known examples of the phenomenon.

    What am talking about here what the real (policy) problem is. NPEs can be pro-patent system to the extent they license bona fide inventions with solid patents.

    Read Michel’s interview, then come back and continue this discussion if you choose. But I suggest that not talking about Lemelson and indefinite patents as the real problem with “trolls,” is misleading.

  22. 34


    This is known as a thread-hijack.

    Ned’s comments have absolutely nothing to do with the concept of “Troll.”

    Lemelson is known for “submarining,” not “trolling.”

    You are correct. He is wrong.

  23. 33

    On trolls, I think the prototype troll was Lemelson in this era. His abused the system to obtain patents that used vague claim terms to cover subject matter he did not invent. I recall that back in the time, there was a similar patent holder who had broad claims on the automobile, even though he may have invented only a tire. (I do not know the details of what he actually invented.)

    But the common shared attribute is of these two is not that they did not invent the subject matter disclosed in their patents, but that their patent had broad indefinite claims, claims that appeared to cover a lot more than what was invented, and certainly a lot more than what they described and enabled.

    Obviously, such patents would be attractive to licensing entities. But let is not forget that licensing entities could also be licensing genuine patents on real inventions. Just focusing on NPEs, misleads.

    The real problem are indefinite claims, and lack of written description support and enablement. These are real problems that the courts have been wrestling with since at least O’Reilly v. Morse.

    We currently have a case on petition to the Supremes to take up the issue of indefiniteness one more time. I hope they take the case, as the Federal Circuit’s position has some deficiencies.

    BTW, the problem about broad, indefinite claims is as old as claims themselves. Curtis railed about them back in the mid 1800’s.

  24. 32

    If you own a patent, but you do not use the patented invention in a product or service, you are still entitled to enforce your patent. You are known in the world of patents and patent enforcement as a “non-practicing entity” or “NPE” — or more rudely put, a “patent troll.”

  25. 30

    New Light, Dennis and all,

    Myself and many of my co-harts and fellow practitioners have been long time readers of Patentlyo and have found the posted topics timely and useful. HOWEVER, we have long ago stopped reading the blog comments as they became increasingly worthless to our practices and mostly selfserving by posters who obviously have plenty of time to waste listening to themselves “talk” about nothing that advances the legal issues. I just happen to have an extra minute and read these and had to post my agreement with New Light. All of you can rip on me all you want, but like most your posts, they will be ignored and rarely read by those of us who read Patentlyo for it timely informative information.

  26. 29


    I cannot go into details, but suffice to say you are incorrect about THESE patents NOT protecting anyone’s innovation.

    They do. Still.

    Whether or not the property is going through a bankruptcy process is immaterial to the property itself and the protection afforded by that property.

  27. 28

    I gather that Google is not making any products using that software itself? and is giving the software away free to those who do make such products?

    Almost nothing is free, Paul. From Wikipedia:

    Even though the software is open-source, device manufacturers cannot use Google’s Android trademark unless Google certifies that the device complies with their Compatibility Definition Document (CDD). Devices must also meet this definition to be eligible to license Google’s closed-source applications, including the Android Market.

    Anybody can develop an OS. It’s the applications eco-system that matters, as Apple has demonstrated. Google controls the Android eco-system. I can assure you that compliance with the CDD is not the only requirement to gain access to Android.

  28. 27

    Rockstar is a collaborative shell company led by Microsoft, Apple, and Research-in-Motion. Its not surprising that the patents largely relate to high speed mobile networking.

    Anyone care to guess which member of Rockstar had the most patents related to high speed mobile networking going into to this auction? Hint: it’s not one of these three “leaders.”

    Microsoft, Apple, and RIM are still playing catch-up in the wireless patent space. This was about keeping the patents away from Google, not about putting the finishing touches on an oligopoly. These guys aren’t buying Google’s “Don’t Be Evil” motto.

  29. 26

    Out of curiousity, could someone please discuss what competitors upset by the success of Andriod software based devices COULD do about it? I gather that Google is not making any products using that software itself? and is giving the software away free to those who do make such products? [Presumably getting an indirect benefit from that like search advertizing revenues?] Assuming infringement, does anyone think Google could be sued for inducing infringement? Or does that make economic sense if those importing, making or selling such products could be sued for direct infringement and possibly enjoined [by a patent of a competitor]?

  30. 25

    As noted above, THESE patents are NOT protecting anyones innovation, as they are Nortels innovation, and all even Nortels creditors and bondholder will get is the bankruptcy sale price of these patents, not any licensing revenues.

  31. 24

    Yes, because everyone knows that actually protecting your established innovation is so gauche.

    We should just get rid of patents in the first place then we wouldn’t be bothered with any of these messy (responding) lawsuits.

    /off sarcasm

  32. 21

    Google chairman Eric Schmidt has accused Apple and others of jealousy over Android’s success, claiming the spate of patent lawsuits against Android OEMs are “just inspired by our success.” Speaking in Tokyo at the Google Mobile Revolution conference, Schmidt suggested that “the big news in the past year has been the explosion of Google Android handsets and this means our competitors are responding,” PerthNow reports, going on to sneer that “they are not responding with innovation, they’re responding with lawsuits.”

  33. 20

    going so far as to insult cancer survivors

    Wow, she wasn’t kidding. Ping is back!!!!

  34. 18

    I sense in their posts a genuine response every time.

    You have got to be kidding me Ned. Every time?

    Malcolm, the king of toilet posts and vapid, derogatory comments – going so far as to insult cancer survivors, and 6 who has dropped the N bomb and just this week posted about “pen is” slapping someone who disagreed with him (and who actually made a fair distinction between physical and material).

    You must have some serious set of blinders on.

  35. 17

    Yeah, I thought about it just a bit more. I think that anytime a group of competitors have to meet and agree on something (such as licensing/enforcing the portfolio), the Feds get interested. I think you probably saw a lot of that in your interference practice.

    The Feds are probably going over any agreement among the 6 to cooperate in licensing and enforcement.

  36. 16

    Because I remember the history of the deal? Google started it’s own pool of folks to bid with, and then MS followed suit. That is, Google already had their pool, and iirc it was MS that refused to join their pool. I never heard anything about MS offering to let google in their pool but at that point huge battle lines were drawn, indeed, by MS.

  37. 15

    “6, who is easily the rudest being in both shear crassness and nonprofessionalism.”

    Takes a well deserved bow*

    I’d like to thank the academy, and my family and friends who have made this all possible.

  38. 14

    P.S. My real objection to unfounded antitrust speculations is that in my view too much of it is subjectively based on a prejudiced assumption that anything large companies ever agree on between themselves must be for some evil conspiracy reason, a la “Das Kapital.” In spite of amazing few actual such cases in recent years, especially as a percentage of the amount of modern business and business transactions. Attorneys that have actually worked inside large companies in the modern era know better. But it is a not surprising attitude considering that antitrust courses in law school are based primarily on ancient cases of blatent AT from way back when AT was a relatively new concept for many older lawyers and some managers were still from the “robber baron” school of management, and that is all the students ever hear about. Most modern companies have competent legal counsel preventing AT missconduct even if some of the management might otherwise be clueless as to some issues.

  39. 12

    A new light, I have had numbers of very good discussions with Malcolm and 6. Both are extremely bright people and very knowledgeable in their respective fields. I sense in their posts a genuine response every time. They really do not play games like some other here.

    Further, I respect your views and would like you to post more here. If I have personally offended you, I deeply apologize. I really do.


  40. 11

    A new light, I complain about anyone who is personally rude to others here. I will agree that Hard is not the only one who is guilty of that.

    As to you and me, I have thoroughly enjoyed discussing issues with you. You seem to have gotten a burr under your saddle about some minor (to me at least) point about the Rules Package and the extent to which the Federal Circuit or the District Court cases are controlling.

    I hope that whatever disagreement we have had on that issue can be placed on hold to a future discussion so that we can again discuss other pressing issues with mutual respect and consideration for each other and for each other’s views.


  41. 10

    I have been absent from posting of late – not absent from reading.

    But I am drawn back, and drawn back to make a comment to someone that I have placed on my do-not-discuss list because of what I perceive as an incredulous and over the line trend. I am compelled to say to Ned, you are out of line.

    You saying Hardworking is rude just does not wash – especially when you are silent to the exceptional rudeness from others, including yourself.

    I have stopped conversing with you due to your repeated and unapologetic mistreatment of case and procedural law. That is fine. I can deal with not discussing matters with you. To me, personally, your behavior is far more professionally rude than anything I have seen from Hardworking. Perhaps it is the disappointment that I still harbor from what I perceive as the deliberate mistreatment of law from someone who should know better, from someone that I had respected. If so, then feel free to take what I say accordingly.

    And while I have never crossed swords with Malcolm, for shear rudeness in a crass manner, there is only one person who outshines Malcolm, and that is 6, who is easily the rudest being in both shear crassness and nonprofessionalism. How anyone would hold a conversation with him is absolutely beyond me.

    But I only see you harping on Hardworking “Fill In The Blank” as “uniformly rude.” Well, from my perspective, reading the exchanges of all these people and seeing who gets the better parts of the discussions and who does not, you only commenting on Hardworking and not saying anything about those other people, well, this seems to me more of a case of sour grapes than anything else. It seems that you make a comment like the one you make here only from pettiness and nothing more.

    If you think someone is rude for disagreeing with you – and for challenging you, then there is no one here that can be said not to be rude to someone. It is evident that Hardworking agrees with little of what you have to say. I think that because he does not take your evasiveness and presses you for answers that you have decided that such behavior is “rude.”

    Hardworking is not the only poster that has gotten the better of you. What next, Ned, are all of these people guilty of “being rude”?

    Normally I also do not care about all of the sockpuppet drama and accusations, but I have to wonder if all of the people with whom Hardworking jousts with have forgotten what Ping was like. If “rudeness” is found here from Hardworking, and if it is true that which has been surmised, that Hardworking is actually Ping, then to complain about Hardworking as “rude” seems a bit like challenging the fates and asking for the return of Ping’s cacophony.

    Is that what you really want, Ned? Personally, ratcheting up, or would it be ratcheting down, the comments to that is not something that I would enjoy seeing.

  42. 9

    Its hard to speculate without facts. E.g., how do you know that Google was NOT invited to join this patent pool, or, WAS invited and refused to join because it wanted the patents all for itself for a competitive advantage over its competitors and thought it could outbid the others from its huge cash hoard, not anticipating the other would pool their cash? I.e. buying patents of otshers because it failed to produce many patents itself? Are you assuming that Google does have patents the others want or need? Is not most of their IP trade secrets? Etc.

  43. 7

    Re trolls: Why doesn’t the gang of 6 let Google have ownership and just acquire non exclusive licenses? Why the bidding for ownership if the acquisition is motivated by a desire to keep the patents out of the hands of adverse entity, particularly a troll entity?

    The troll excuse does not fly. Such an excuse is a smokescreen.

    I think these folks want to force Google into a cross license, perhaps with a very unfavorable balancing payment.

    Now, considering this as the the reason, what does this do to competition?

  44. 6


    But such a reasoned approach robs Malcolm of his ability to throw around txxbaggar accusations without any critical thinking.

    Oh wait, no it doesn’t.

    btw – thanks Paul for actually discussing real issues.

  45. 5

    “why are we punishing these job creators”

    The 6000 jobs were already created when the patents issued. It’s simply a question of transferring those workers from Nortel’s payroll to the shell company, which presumably will need to employ them all to support such a large patent portfolio.

    Anybody know how many employees that will leave behind at Nortel?

  46. 4

    The purchase of the patents per se is not the issue. The issue is what they will do with these patents after they get them. [If they are buying these patents for defensive purposes, to prevent uber-trolls from acquiring them and suing everyone, that is not even an improper motive.] If they will offer these patent to any competitor on a reasonable non-exclusive license basis, that cannot create any antitrust issue. If they refuse to license anyone else seriously capable of competition with them, that could be an antitrust issue. The fact that they are joint buyers presumes that they have already in effect given each other such (NON-monopolization) cross-licences, which should increase product feature price competition and should not be a problem either. The antitrust laws, and economic sense, does not require major companies to run around suing each other for patent infringement rather than cross-licensing to reduce litigation. The public directly benefits from the price competition on products with desirable competitive features avaiable from different companies as compared to such a product only being available from one company with patents on it. Certainly Nortel itself, the inventors and patentees, being bankrupt, are not commercially affected in any way by whomever acquires the patents.

  47. 3

    I find it interesting that the txxbxggxrs aren’t piping up to let us know that the Sherman Act is unconstitutional and anti-American, i.e., “why are we punishing these job creators”, ad nauseum.

  48. 2

    What is the concern, that Apple, the market share leader, is part of the group or that a group of companies, nominally competitors in the field, acquired the patents?

  49. 1

    Yes, because when three of the four largest smartphone players jointly own 6,000 patents related to smartphones, there’s no antitrust risk whatsoever. I scoff at thee, Nortel. Scoff.

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