[josephlord]

The patent system may need fixing, abolishing in certain fields or even complete abolition but that doesn't mean FRAND abusers are worse than all other sorts of patent trolls because there is no way to work around them.

FRAND is a necessary part of keeping the dysfunctional system working at all and while I see no prospect of patents overall being abolished I don't think that is a bad thing.

What is the difference between an illegal cartel of competitors fixing the market and a standards setting body?

The answer lies in the rules standards bodies put in place to ensure that OTHER companies not in the group can compete in the market created around the standard. One of these rules is FRAND commitments on patents to ensure that standards body members that get their patents into the standard (which they nearly try to and do) cannot just try to claim ALL the profit from every competitor by setting significant license fees.

Edit: Typos/spelling errors. Unfortunately can't fix "it's" in my other comment though.

[distant-uncle]

In a system without patents, collusion would be checked by increased competition. As it is, FRAND patents are irrelevant, because as it has been already shown, some companies fail to disclose, others refuse to play... and are not required to boot.

But even if all companies played by the FRAND rules, there would still be fundamental unfairness in the system, not unlike one that FRAND proponents point out. That unfairness lies in the fact that FRAND or not, unscrupulous incumbents will relentlessly seek any 'redress' against newcomers. In other words, they will hammer you with any patent they think they have a good chance of flattening you with. This goes a long way to furthering their ability to form cartels, especially among the big incumbents with thousands of patents.

As an aside, I also find the cognitive dissonance exhibited in these debates quite entertaining. On the one hand we have the contingent that proclaims that "GREED is good!", a la Mr. Gekko. Nice. If they can prevent you from practicing your very own idea, they would. But then, the very same contingent all of a sudden grows a moral backbone when they resort to the arguments: "But you stole my ideaz?!?".

I reject any notion that FRAND regime is special. If you're not invited to be a party to a standard, then create your own. The 'can't work around' argument doesn't hold water.

The same exact, 'can't work around' argument is often very applicable to any patent discussion. At least in the case of copyrights, we have the merger doctrine. In the case of patents, if someone managed to lock up fundamental methods, good luck. In fact, the system is so screwed that it's possible for someone to lock up methods that they didn't even discover.

Herein lies another problem however: creating your own standard would not absolve you of any territorial squabbles. In fact, in that case, and now being outside the umbrella of FRAND, unscrupulous incumbents will try to make this quite impossible for you, with the patents supporters, and particularly the FRAND crowd uttering nary a whisper.

[josephlord]

I'm not (in this argument) arguing against the idea that a world without patents wouldn't be better. It might but that is a whole other discussion. In this world patents exist and FRAND commitments enable significant amounts of commerce and standardisation to proceed.

FRAND is not irrelevant, most companies meet their commitment and massive numbers (of possibly dubious) patents can be licensed quite cheaply in many areas. Samsung and Motorola are trying abuse their Standards Essential Patents in several areas and are risking this whole system (at least in Samsung's case possibly at great risk to themselves in the medium term).

You say FRAND is irrelevant because some companies aren't following it but I think they form the minority and it is yet to be seen if they get away with it. Rambus didn't (although it took years) and Motorola is in another suit with Microsoft which may yet enforce some FRAND rules. Plus anti-trust authorities in the US (I think) and Europe have at least been taking an interest in this area although no actual proceedings have been brought they could still be.

If I want to build a device to connect to the mobile phone network I need to follow the standards.

If I want to build a device to connect to connect to wifi I need to follow the standards.

If I want to process video that is available from just about anywhere I need to follow the standards.

If I want to design a new UI I can choose to develop something new (and patent it if I want), use something published but non patented (hard to find), use something old (>20 years), take a license to something patented or take my chances getting sued. Only the last two options are open when developing to a standard.

At the moment if a single company (without a monopoly position) develops a new "standard" they can license it how they want because they are not breaking competition law and won't have entered any commitments. That doesn't make it OK for competitors to act together to do this.