RAND Agreement Proving Powerful Limit on Patentee Action: Microsoft v. Motorola

Microsoft v. Motorola and Google (9th Cir. 2015)

In a well written decision, the 9th Circuit has affirmed the lower court ruling that Motorola/Google owes $14 million to Microsoft for failing to live-up to its RAND commitments.   Although Motorola (now Google) committed several WiFi-essential patents to Reasonable and Non-Discriminatory (RAND) licensing, it later demanded that Microsoft pay a hefty royalty rate lest it be blocked from using WiFi.  Those demands from Motorola should more properly be seen as a counter-offensive  prompted by Microsoft’s demands for royalties on every Android implementation.

The basic rulings: (1) affirming that Motorola had breached its RAND good faith and fair dealing obligations in its dealings with the third-party-beneficiary Microsoft – resulting in $14.5 million in damages; (2) affirming that the district court had not erred in determining the RAND royalty rate at a few cents per device (rather than the few dollars per device requested by Motorola).  The court previously agreed to hear the case (rather than the Federal Circuit) and that prior finding was left undisturbed based upon the “law of the case.”

The damages here are interesting.

Motorola had challenged the district court’s RAND royalty determination as failing to follow Federal Circuit damages precedent.  On appeal, the 9th Circuit held that neither Federal Circuit precedent nor the Patent Act requirement of “a reasonable royalty” floor control because the RAND rate is a contract obligation rather than a patent damage.  That said, the 9th Circuit did agree that the Georgia-Pacific factors are helpful in guiding the analysis.

The $14 million breach-of-contract damages actually stemmed from Motorola’s infringement action filed in Germany.  When that lawsuit was filed, Microsoft quickly relocated its infringing European distribution center to the Netherlands (at a cost of several million dollars).  The German court did grant an injunction against Microsoft’s ongoing infringement in Germany.  Back in the U.S. the district court determined that the German action (and demand for injunctive relief) was a breach of Motorola’s RAND agreement and awarded Microsoft $11 million to compensate for moving its distribution center and $3 million in attorney fees for having to fight the legal battle in Germany.  Those findings have now been affirmed by the 9th Circuit.

Motorola  argued that the U.S. policy of open access to the courts should bar liability for consequential damages associated with filing a lawsuit.  That argument is embodied by the Noerr-Pennington doctrine that shields parties from liability for simply engaging in litigation.  Here, however, the 9th Circuit found the doctrine inapplicable when contractual obligations bar certain litigation strategies — here, in particular, the RAND agreement was seen as barring any request for injunctive relief.

Overall, the outcome provides power to RAND/FRAND agreements – proving that they provide significant assurances to third parties on a global scale.





46 thoughts on “RAND Agreement Proving Powerful Limit on Patentee Action: Microsoft v. Motorola

  1. 10

    This decision is perhaps one of the best examples of why having patent appeals exclusively decided by the Federal Circuit was a very bad idea. This case was decided by the Ninth Circuit only because the complaint did not plead a patent infringement cause of action (only contract). The result was a decision with more thoughtfulness and better reasoning than any decision from the Federal Circuit in five years. It saddens me to think how much better patent law would be today if patent appeals could be decided by regional circuit courts, rather than the tunneled visioned hacks that masquerade as jurists on the Federal Circuit.

    1. 10.1

      In the late 1930’s, under the guidance of Merrell E. Clark, Albert G. Davis and Theodore S. Kenyon, our Association considered issues that would remain in the forefront for decades to come. The Board of Governors at that time opposed in principle a proposal to create a single Court of Patent Appeals (which it would later refer to as an “Engineers’ Court”). The Committee on Patent Law and Practice, chaired by Alexander C. Neave, offered the following reasons for opposing such Court:

      1. The conflict of decisions of various circuit courts of appeals is in fact not serious, and the present practice has certain advantages which the Single Court would not have.
      2. There is no necessity for a court of judges with technical training and such a court would have its own disadvantages which would be more serious than those which may now exist.
      3. A Single Court would not materially reduce the expense of patent litigation and might well make it more expensive..
      4. A specialized Appellate Court would be an undesirable departure from our present judicial system.
      5. The problem of obtaining competent judges would be a serious one.
      6. The proposed Court would create complications which do not now exist.
      7. The Single Court would be an unnecessary expense.

      An Association sub-committee had earlier reported that:

      we need appellate judges who are trained in judicial consideration of problems and who are able to weigh and sift the evidence presented to them. Scientific judges would soon fall behind in their technical knowledge and would undoubtedly develop prejudices and narrow scientific ideas which would result in the case not being decided upon the evidence given in the Court below but upon the technical views of such an Appellate Court, which views litigants could not meet since no evidence is introduced in the appellate court.

      link to nyipla.org

      While I disagree with the result from the 9th Circuit, I do agree that the case is well reasoned.

      The NYPLA had this figured out a long time ago.

      1. 10.1.1

        Regarding deciding on the record vs. sifting the facts themselves, this is where the Federal Circuit is notorious. They are infamous for the practice.

        So is the PTAB. Recall, In re Sang-Su Lee, 277 F.3d 1338 (Fed. Cir. 2002). link to scholar.google.com

  2. 9

    I am very glad to see the result, because I come from a company of manufacturer. I completely understand how difficult it is when a manufacturer is confronting with an agrresive patent owner who claimed to have standard essential patents. The threat is direct and serious, if you don’t pay them the unreasonable rates, they will seek an injuction to block your sales, which is exactly the case here in MS v.s. Moto, Moto forced MS to relocate its base from Gemany to the Netherlands. The problem is, those patents are standard essential patents, if you want to stay in the market, you have to make your products in compliance with such standard.

    In my opinion, in this case, Judge Robart gave insightful guidance on how to calculate frand rates for essential patents. That is, setting a high bound and low bound, determining the patent value according to the technical effects to the standard rather than the standard value itself, and apportioning the ratio of the patent owner using the succesful H.264 patent pool.

    But there are many questions which need to be solved, for example, if a succesful patent pool does’t exist or there are many small patent pools for only one standard with completely different charging rates but absent those big patent owners (like now LTE patent pools of Sisvel and Via). How can we do the licensing rate calculation for LTE patents?

    1. 9.1


      What does a SEP owner do when someone infringes their patent? Perhaps notify the infringer of their infringement and offer terms for a licence?

      And then what happens when the infringer doesn’t negotiate?

      Maybe Motorola made a mistake in trying to strongarm Microsoft by using an injunction, but what else could they do?

      Maybe Robart has done some good with his guidance on calculating FRAND rates, however his actions will encourage organisations with patents to stay away from contributing towards standards since there is no way to negotiate with someone who refuses to negotiate and without the possibility of an injunction there is no recourse for the SEP owner.

      You say, “The problem is, those patents are standard essential patents, if you want to stay in the market, you have to make your products in compliance with such standard.”

      Shouldn’t someone thinking of entering a market where they know there are standards do some sort of due diligence and negotiate licences before or soon after entering the market?

      To use a rough analogy, Motorola is a high class restaurant owner and Microsoft has just eaten and drunk its fill and tried to leave without paying. Motorola stopped Microsoft and offered to accept payment and not bother calling the police. Microsoft refused to pay again, tried to leave again but was hurt in the struggle when Motorola restrained Microsoft. The police were called and Motorola is arrested, prosecuted for assualt and has to pay compensation to Microsoft. The judge’s recommendation for the amount that Microsoft should pay for the meal isn’t the menu price but a price that he decides the meal is worth which is a fraction of the normal cost.

      Robart failed to take stock of what Microsoft actually did and the reasons why Motorola did what it did.

      1. 9.1.1

        Dear Bert,

        Thank you for your comments, and your vivid analogy, which gave me a lot of thinking and happiness. It’s great to hear that. I admit that some issues related to standard essential patents might be argumentative, for example, whether injunction relief should be permitted is definitely big one.

        I completely agree with you that manufacturers should pay royalties to SEP owners for their contributions during the standard drafting, the SEP owners sent their experts there and cost their valuable time, material resources and big effort to make the technology of the standard progressing.

        But I would like to point out that low quality patents are overwhelming nowadays, those low quality patent are also produced in the standard drafting even there is no contributions at all. For example, many CA, CIP, DIV applications and patents are produced with very limited technical improvements to the technology itself, however, those numbers will add to essential patent list and make manufacturers pay. Does anybody count that how many essential patents in total for just one standard. Let’s just talk about H.264 standard. A couple of years ago when Judge Robert trying to calculate the frand rates for H.264 essential patents, it is estimated that there are over 2000 patents according to the MPEGLA’s patent pool. How about now? The total number is over 3000 based on my rough calculation of today’s MPEGLA’s patent pool. Does anybody know how many CA, CIP and DIVs are included in the pool or not included into the pool? I would say countless, and they are still accumulating even the H.264 first version has been published for so many years. Thank God the H.264 pool has a cap, but those who didn’t join the pool and do not plan to do it, hold a belief the cap is not applicable to them and they want more.

        Moreover, as to those wireless standard patents, it’s very difficult to count the total numbers. So, how does a company know how much he should pay when they are entering the new business or even they are already in there, the big sharks and NPEs keep coming to your office. Companies like startups have no experts of patent licensing and few labor resources to investigate.

        Another reason attributes to these low quality patents is the examining process of USPTO. I think that is why they initiate some patent quality projects hoping to improve the quality. Low quality patents will cost the society more rather than contribute to the development of society, according to some experts. Maybe USPTO needs to work with the EPO sharing prior art search reports or something. According to some reports, in the post grant review of the USPTO, 60-70% of issued patents submmited for review are found invalid(I am not sure if I memorize correctly).

        Yes, you are correct that Judge Robert failed to analyze what Microsoft actually did during the patent negotiation. That is what I would like to say, every step in patent negotiation should be careful, because that matters what takes to be negotiate in good faith. However, injunction relief is not necessary if a potential licensee will accept the rates set by the court. In that case, money is enough for compensation to SEP owner’s all contributions.


          Mark, do you believe a company has a legal right to infringe a patent that is an SEP?


              So when a patent owner finds a willful infringer, and he sues, then he has done nothing wrong.

              That is one of the reasons I find everything about this case disturbing.


          But I do agree with you that a main villain in this drama is the USPTO who for so long have no measure in place to monitor patent quality, as opposed to process quality, and whose commissioners have made it their prime objective to issue more patents, faster, and at less expense to their “clients.”

  3. 8

    Is is just me or is Microsoft being awarded 11.5 million in compensation for having tried to avoid a Court judgement by a court with jurisdiction over those assets by moving the assets out of the jurisdiction ahead of the decision?

    1. 8.1

      James, what is going on here is a tar and feathering of Motorola for being aggressive in the face of Microsoft’s actual or anticipatory breach. I see no “justice” in the result here.

  4. 7

    Pay attention:

    -1214 PATO Dynamic Drinkware, LLC v. National Graphics, Inc., link to oralarguments.cafc.uscourts.gov

    The PTAB held for the patent owner because the petitioner, relying on the filing date of a provisional application as the effective date of a patent which it contended anticipated, did not demonstrate that the patent was entitled to that effective filing date by comparing the claims of the patent to the disclosure of the provisional application.

    The argument on appeal was who has the burden of proof – the petitioner, who must demonstrate the unpatentability of the patent in the IPR, or the patent owner.

    You might recall that I have often said here that if an examiner tries to assert a reference as of the filing date of its provisional, that I would object that the reference is insufficiently supported unless the examiner further demonstrates entitlement of the reference to the effective date of the provisional by comparing the claims to the provisional’s disclosure. I was met by incredulity by none other than Random who contended that showing entitlement by comparing the claims to the provisional disclosure was not only not necessary, but not the law.

    It appears that the PTAB and the examining corps are not on the same page on this issue.

    1. 7.1

      Ned: The PTAB held for the patent owner because the petitioner, relying on the filing date of a provisional application as the effective date of a patent which it contended anticipated, did not demonstrate that the patent was entitled to that effective filing date by comparing the claims of the patent to the disclosure of the provisional application.

      Regardless of who has to “demonstrate” what, the bottom line is common sensical: a cited reference anticipates a claim only (1) if the cited reference actually discloses all the elements (directly or indirectly) as recited in the claim and (2) the cited reference was published before the critical date of the claim.

      Put another way, a publication — whether it’s a patent or any other reference — that recites a patent claim verbatim and says “this was first discussed by Mueller in 1423” isn’t anticipatory unless the publication occurred before the critical date of the claim in question. If it’s Mueller’s discussion that’s being relied for anticipation, you better be prepared to find a copy of that dicussion that was actually published before the critical date.

      In the case where an Examiner (or anyone else) is relying on the disclosure of a provisional application to support an anticipation (or obviousness argument) it seems reasonable to put the burden on the Examiner (or anyone else) to point out where the claimed elements appear in that provisional application.

    2. 7.2

      Just to make clear what was being argued, all agreed that the effective prior art date of a patent claiming priority to a provisional was governed by In re Wertheim, 646 F.2d 527, 209 U.S.P.Q. 554 (C.C.P.A. 1981). The claims of the referenced patent must be supported in the manner of 112(a) in the provisional for the patent to have an effective prior art date as of the date of the provisional.

      The problem the petitioner had was that they skipped a step, in the words of the panel. They simply compared claims in the patent under attack to the disclosure of the provisional and never established that that disclosure was prior by reason of a claim for priority from an issued patent — where, under 119(e) the claims of the patent must find 112(a) support for the “claim” for priority to be “effective.”


          No, anon. The claim was made in the reference. It is just that the petitioner ignored his requirement to prove entitlement to priority even for prior art purposes. The folks filing the petition didn’t seem to even know what that meant, but they certainly did by the time they lost because they failed to prove their case.

          What is odd is that Random insists that the requirements of Wertheim do not exist and that he can rely on the provisional filing date even if the reference patent does not have a right to priority.


            You seem to be wanting that the record not speak for itself….

            I’m just not “getting” why you are so heavily stressing such a point…

  5. 6

    Perhaps a consequence of this will be a reluctance by participants to sign onto Standard Setting Organizations’ patent policy. Participants are not required to sign onto the FRAND commitment of such patent policies.

    1. 6.1

      Charles, perhaps, but the standards organization typically also have a policy of not standardizing on a standard where the standard is covered by patents for which there is RAND commitment.

  6. 4

    I am still bothered by this case.

    MS sues Motorola for patent infringement. Cross license discussions ensue. Motorola sends Microsoft an offer to license is SEP’s at its “standard” 2.25% royalty rate – a rate it has licensed the patents to others before, albeit with other patents in a larger deal.

    The court noted that it was not a violation of RAND commitments to offer a license on an unreasonable royalty. But it was a violation not to negotiate reasonably.

    Rather than respond to the offer, Microsoft filed breach of contract lawsuit, and further filed a complaint with the FTC. Motorola responded with its own patent infringement lawsuits, an ITC action, and a request for an injunction under its German patents, which was granted.

    On these facts, it is quite apparent to me that it was Microsoft, not Motorola, that did not negotiate on a reasonable basis. When a third party beneficiary does not negotiate on a reasonable basis, does it or does not not forfeit the protection of the initial RAND commitments? Microsoft has now taken complete advantage of its own breach.

    This is a breach of contract case I think should eventually work its way to the Supreme Court.

    1. 4.1

      You are probably bothered by this case because it does not fit the mold of usual cases. It is operating under a different regime as I shall try to explain without any claim to being an expert.

      Page 29 merely says: “Neither the IEEE nor the ITU provide a specific formula for setting the terms of a RAND license,” which is true. However, the IEEE Letter of Assurance for Essential Patent Claims which appears to be an election to assent to the Policy discussed below, says that the Submitter will, using check boxes, either a. grant royalty free licenses or b. grant licenses under Reasonable Rates and c. not enforce any standards essential claims or d. not agree to any of this. If d., I presume the IEEE won’t incorporate claimed subject matter in the standard.

      Standards Board bylaw 6.1 attempts to define a Reasonable Rate as one that excludes any value that accrues because it is incorporated in the standard and takes into account the value of the smallest saleable component and, also, its contribution relative to all of the standards essential claims of others. Royalties paid by others,as long as not obtained under threat of legal action, are a guide.

      Bylaw 6.2 explains the Policy. It says the Submitter shall engage in good faith negotiations without delay but may litigate all issues provided that it may not seek a Prohibited Order defined as an injunction or ITC exclusion order or equivalent.

      The issue in this case is whether Motorola breached its contracts with the Standards Setting Organizations. Motorola asked for a 2.5% royalty, I think $9 for a $400 X-Box; the court did not make this clear. In other cases this might be reasonable. Here, the judge set out to determine what is reasonable under the RAND regime and came up with 20 cents. The jury determined this indicated that Motorola was not negotiating in good faith. The jury did not determine an actual royalty rate, although they could have as in other cases.

      I don’t think the Supreme Court will take this up. It is no so outrageous since it is possible that the patents-in-suit would have no value if not incorporated in the standards by the Standards Setting Organizations.

      This is new to me and I am happy to stand corrected.

      1. 4.1.1

        Troubled, the court specifically stated that an opening offer does not have to be reasonable. The requirement is to engage in reasonable negotiations.

        Rather than reply to the offer, Microsoft filed a lawsuit basically saying that more will a had breached its RAND obligations with that offer. But the court held that it had not breached its obligations with that offer. Therefore there was no breach of contract by Motorola at the time the lawsuit was filed by Microsoft.

        The obligations not to seek remedies at the ITC or to seek an injunction are premised on underlying assumption that the prospective licensee is only engaging in reasonable negotiations itself. Microsoft hardly did that. It was suing Motorola for patent infringement and filed suit for breach of contract indicating it would refuse to negotiate with Motorola.

        This case came out backwards in my view. The party that refused to negotiate reasonably wins. This is absurd.


          “Troubled, the court specifically stated that an opening offer does not have to be reasonable.”

          What page was that on? I didn’t see it.


            Page 14.

            “Judge Robart held … “Motorola’s commitments to the ITU and
            IEEE . . . requir[e] initial offers by Motorola to license its
            SEPs to be made in good faith,” but that “initial offers do not
            have to be on RAND terms so long as a RAND license
            eventually issues”;”

            “Fn. 8 Microsoft’s amended complaint pointed to the infringement actions in Wisconsin district court and before the ITC as the source of the breach.”

            It is important to note that the infringement actions were filed in response to Microsoft’s breach.



              Thanks. So, Motorola’s initial high royalty rate offer, by itself, is not a sign of bad faith. The decision Background does not spell out what happened next. However, presumably this was in front of the jury and taken into account in determining that Motorola, not Microsoft, was bargaining in bad faith. If you credit the jury, then Microsoft was not the first to breach.

              Unfortunately for Motorola, filing a suit for injunctive relief is a pretty clear cut violation of the Standards Setting Agreement even if the license negotiation has bogged down. Instead, If Motorola thought Microsoft was bargaining in bad faith, it should probably filed it is own breach of contract suit. Enough said.


                What contract had Microsoft entered into with respect to these patents? Does anyone using a patent without a licence automatically enter into a contract?

                How could Motorola file for breach of contract if there was no contract?

                What recourse does a patent owner, belonging to an SSO, have if someone uses their SEP and the infringer does nothing?


                Troubled, if Microsoft did not negotiate in good faith, and the facts appear that they did not but simply filed a lawsuit alleging breach by Motorola when there was no breach, what recourse does Motorola have but to sue for infringement, etc.?

                I agree with Bert that Motorola had no contract with Microsoft. Motorola had a contract with the standard-setting organization. Microsoft had the benefit of that contract only so long as it negotiated in good faith for license. It did not have a right to infringe the patents without obtaining a license which is what it did, deliberately and intentionally infringe. And when confronted by Motorola, they flatly refused to negotiate for license, but continue to infringe while accusing Motorola of a breach of contract which the court specifically found that Motorola had not breached at the time Microsoft filed its lawsuit.

                There is something very weird about what one on in the Ninth Circuit and in the lower court.

  7. 3

    To me, the reasonable royalty determination is unsatisfactory. Page 15 of the opinion references the district court determination that a reasonable royalty was .555 to 16.389 cents (note the decimals) for the video standard patents and .8 to 19.5 cents for the WiFi patents. How can a royalty with a 30:1 range be termed reasonable? In practice, I guess this means that Motorola can ask for the upper limit and still be reasonable, but why the lower limit?

  8. 2

    A court has the legal authority to determine a RAND royalty because there’s a contractual obligation to license at a reasonable royalty. But in the ordinary patent case, the patent owner is under no obligation to license his patent at all. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 430, 28 S. Ct. 748, 52 L. Ed. 1122 (1908). link to scholar.google.com

    In the earlier thread regarding injunctions post eBay, I asked the question how many of the cases where an injunction was denied did the court order an ongoing license to the infringer against the will of the patent owner and/or at a rate the patent owner does not agree with. I did not receive a reply to that question. I raise the question again, because I see no legal basis for a court to force a patent owner to license a patent against his will in view of controlling Supreme Court precedent to the contrary.

    1. 2.1

      In every case I have seen, the patentee has asked for ongoing remedies as an alternative in the event its request for a permanent injunction is denied. The reason is simple; if the plaintiff asks for an injunction but cannot show entitlement to it under eBay, without an award of ongoing royalties, it may end up with only past damages and no post-verdict remedy at all.

      I do not understand your statement about no legal basis “to force a patent owner to license its patent.” That statement is irrelevant. If the patent owner cannot prove an injunction under eBay, it is not going to get one, period. In that situation, I suppose the patent owner would be free to forego entitlement to future royalties, but I have yet to see a patentee who would do that.

      1. 2.1.1

        Lode, I see. It is the PO shooting himself in the foot.

        Let me ask you this, Lode, how many times must a patent owner sue an infringer for infringement before a court will say uncle and grant the injunction?


          Second question, does Kessler apply in a second action against the same infringer for the same products but sold after the start of trial in the first action?


          Let me ask you this, Lode, how many times must a patent owner sue an infringer for infringement before a court will say uncle and grant the injunction?

          I don’t recall the standard for a permanent injunction including the number of times that the target has been sued for the same act. If the patent owner cannot show a probability of irreparable harm, then the answer is effectively “as many times as needed within the term of the patent given a 6 year window for past damages.”

          Law and economics theorists would say that your question is irrelevant. Whether you impose an injunction or ‘allow’ further infringement, the royalty rate/damages should end up being approximately the same. Enhanced damages do throw a wrench in that calculation, but also weigh against the need for an injunction to prevent future infringement under such circumstances. Not only would damages be compensable by money, but potentially by money at a supracompetitive rate.

          You have a point concerning the ongoing license, but it is not “shooting yourself in the foot” for a PO to accept a ongoing royalty rather than run through the litigation mean grinder a second or even a third time.


            DRLaw, Assuming any ongoing infringement is willful, the patent owner is all but entitled to treble damages. Thus I can see the PO agreeing to a continuing license for three times reasonable royalty. If not, the PO should continue to sue, apply Kessler, the prior judgment on a RR, and simply move for treble damages. Keep doing that and the court will call a halt at some point.

            I am going through this exercise to prove a point. eBay affirmed the continuing viability of Continental Paper Bag, which all but stated the patent owner has a right to an injunction because he does not have any obligation to license for any reason whatsoever.


            Furthermore, “irreparable harm” is an aspect of whether the legal remedy is adequate. With continuing infringements, the legal remedy is not adequate and the patent owner is irreparably harmed. Asking whether the patent owner is losing business, or whatever, if the infringement continues throws the legal right the patent owner has in his patent into the trash. The harm the patent owner suffers is the violation of his exclusive right, not any harm to his business of selling products or whatever. See, Continental Paper Bag.

            “From the character of the right of the patentee we may judge of his remedies. It hardly needs to be pointed out that the right can only retain its attribute of exclusiveness by a prevention of its violation. Anything but prevention takes away the privilege which the law confers upon the patentee. If the conception of the law that a judgment in an action at law is reparation for the trespass, it is only for the particular trespass that is the ground of the action. There may be other trespasses and continuing wrongs and the vexation of many actions. These are well-recognized grounds of equity jurisdiction, especially in patent cases, and a citation of cases is unnecessary.”

            Id. at 430.


              Ned, you might want to read this recent Supreme Court case involving eBay. It’s probably more relevant to this Motorola dispute than this century old Continental Bag decision. Just a thought.


                MM, eBay affirmed the continuing viability of Continental Paper Bag, when, in excoriating the district court for its denial of an injunction to an “NPE,” the Supreme Court said this:

                “To the extent that the District Court adopted such a categorical rule, then, its analysis cannot be squared with the principles of equity adopted by Congress. The court’s categorical rule is also in tension with Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, 422-430 (1908), which rejected the contention that a court of equity has no jurisdiction to grant injunctive relief to a patent holder who has unreasonably declined to use the patent.”

                eBay at 393.

                Under eBay/Continental, a patent owner has a right to withhold a license. In the face of continuing infringement, he must be granted an injunction — the only real problem being the public interest if some cases.

                1. The “public interest” in those cases where it arises (Ned’s “some cases”) are those cases in which the Government steps in and performs a taking.

                  Think pandemic or other emergency.

                  Naturally, such are rare and will be the exception that proves the rule. Also, such a taking certainly isn’t a free one.

                  Outside of the Government and its ability/need to declare emergencies, the “public interest” is simply better served with a strong patent system.

  9. 1

    Dennis: 2nd to last paragraph – “Microsoft argued that the U.S. policy of open access to the courts should bar liability for consequential damages associated with filing a lawsuit.”

    Should that be Motorola/Google (as U.S. defendants – DE plaintiffs) because Microsoft is the one seeking the consequential damages of the breach of contract claim?

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