After Apple made its royalty-free patent licensing offer related to nano-SIM, Nokia said it was not aware of "any Apple IP which it considers essential to its nano-SIM proposal" (though Apple declared a U.S. provisional patent application to be potentially essential) and reiterated, as its primary concern, its positions that its own proposal is superior and that "Apple's proposal does not meet the pre-agreed ETSI requirements". Today Nokia issued another statement according to which it won't make its patents available to implementers of the nano-SIM standard should Apple's proposal be "selected in violation of ETSI's rules".
Nokia claims to hold "more than 50 patent families covering SIM related technologies that [it] believe[s] may be essential to Apple's proposal". Nokia states that it will, however, honor its "existing commitments to license its standard essential patents under FRAND terms to earlier adopted ETSI standards".
If -- I repeat, if -- it is true that Apple's nano-SIM proposal "does not meet ETSI's technical requirements" and that it could only be adopted in contravention of ETSI's own rules, then Nokia certainly has the right to argue that its FRAND licensing obligation, which it has in its role as a member of the committee working on this particular standard, does not apply to nano-SIM. Given the complexity of the technical issues Nokia raises, a court battle over this question could take years. ETSI is based in France, so any disputes might have to be brought before French courts.
In such a litigation, it would have to be established whether Apple's proposal was in line with ETSI's rules. Another question would be whether Nokia would have an obligation under antitrust law to support such a new standard regardless of an alleged breach of rules.
And that may not even be the end of the story: assuming that Nokia was found to have a FRAND licensing obligation, there could be another multi-year dispute over the royalty rates Nokia would demand from implementers of a standard it vehemently opposed.
Nokia apparently hopes that the prospect of protracted litigation is going to dissuade enough ETSI members from voting in favor of Apple's proposal. Additionally, Nokia accuses Apple of "mis-using the standardization process, seeking to impose its own proprietary solution on the industry and using ETSI merely to rubber stamp its proposal". Given that Apple is willing to make its own IP essential to nano-SIM available on a reciprocal, royalty-free basis, I don't think it's accurate to label it a "proprietary solution". Also, it must have something to offer given that most European network operators support it, according to the Financial Times.
Nokia argues that Apple's approach "is not in the best interests of the industry or, more importantly, of consumers" and insists that "the integrity of ETSI's standardization process should be upheld, with pre-agreed requirements and selection criteria used to ensure fair selection of the best technology". In my personal opinion, pre-agreed criteria should be treated with a certain degree of flexibility when it comes to a vote, especially in an industry with fast-changing needs. And I like the idea of letting companies vote without uncertainty about whether the essential patents will or will not be available on FRAND licensing terms.
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