Speaking today at the D11 conference in Los Angeles, Woodside teased that he had the phone in his pocket, "but I can't show it to you," and that the Android smartphone would be built in a plant near Fort Worth, Texas, fomerly used by Nokia. Woodside said the X Phone will launch "by October" along with a handful of other new Motorola smartphones.

(See Also: 4 Ways Motorola X and Sony's Xperia Z Can Still Win)

Designed to compete with high-end offerings from Apple and Samsung, Moto X will feature an organic LED display, thinner and lighter than older LCD displays, and be packed with sensors used to help the device "know what you want to do before you do," Woodside said. For example, the phone will be able to tell when it's in your pocket, in your hand, or inside of a fast-moving car, and subsequently trigger appropriate user interactions.

Woodside also mentioned that the device will be the first smartphone built in the United States, with some 70 percent of manufacturing taking place at the Texas facility. 

Image via Motorola

These cuts are a continuation of the reductions we announced last summer. It's obviously very hard for the employees concerned, and we are committed to helping them through this difficult transition.

It was not supposed to be this way. 

Google acquired Motorola Mobility in 2012 for $12.5 billion, a move widely viewed as a way to bolster Google's Android ecosystem and defend the company against patent lawsuits from Apple, Microsoft and others. When the acquisition was finalized, Google CEO Larry Page was ebullient:

I’m excited to announce today that our Motorola Mobility deal has closed. Motorola is a great American tech company that has driven the mobile revolution, with a track record of over 80 years of innovation, including the creation of the first cell phone. We all remember Motorola’s StarTAC, which at the time seemed tiny and showed the real potential of these devices. And as a company who made a big, early bet on Android, Motorola has become an incredibly valuable partner to Google.

The reality has play out far differently.

Job cuts notwithstanding, Motorola has failed to capitalize on the growth of the Android ecosystem. As ReadWrite reported last week, Samsung dominates Android even in the United States. For the quarter ending January 2013, Motorola's share of the U.S. smartphone market declined 1.4 points and sits at a meager 8.6% of the market. Globally, Motorola doesn't even crack the top 10 smartphone vendors.  

Which begs the question: What would have been a better use of Google's $12.5 billion? It turns out, a lot!

World's Largest Venture Capital Investment

With $12.5 billion in seed funding, Google could have doubled what Silicon Valley VCs invest in a year. 

Blackberry

Google could have purchased the iconic, secure and enterprise-friendly Blackberry for about $6 billion. To mitigate the crushing blow to Canadian pride for losing their once-mighty Blackberry, Google could have used the remaining $6.5 billion to make a run at acquiring the entire National Hockey League. 

Twitter

The increasingly popular micro-blogging and "second screen" platform, Twitter, has 200 million active users - and is valued at $10 billion.

You Get a Prius! You Get a Prius!

Forget futuristic driverless cars. Google could have jumpstarted the "sharing economy" and helped the environment. The 2013 plug-in version Toyota Prius retails for about $30,000. Instead of buying Motorola Mobility, Google could have brought home nearly 400,000 Priuses - and had plenty left over to acquire car-sharing service, Zipcar (recently purchased by Avis for a bargain $491 million). 

Fashionable Eyewear

Why did Google want to make Motorola smartphones when it should be constructing Google Glass headsets? Perhaps because no one save a few geeks will wear Google Glasses in public if they don't feel great and look fashionable. For a mere $6 billion, Google could have acquired Fossil, Inc. Fossil designs, makes and distributes not only eyewear but a range of fashion accessories - perfect for the coming wearable computer revolution. 

Lululemon

Google co-founder Sergey Brin - who thinks that smartphones are "emasculating" - has revealed a fondness for fashionably trendy, form-fitting Lululemon yoga gear. Brin could have bought the entire company for just North of $10 billion. 

Television

Google's efforts to crack open Hollywood - and gain a foothold in the television market - have so far floundered. For just $10 billion, Netflix could have belonged to the search giant.

Moon Shots

Larry Page wants Google to work on "moon shots" - those breakthrough innovations that promise to radically alter work and business. For $12.5 billion, Google could have fully funded NASA for a year.

All The News That Fits

Fairly or not, Google has been pilloried for destroying the newspaper industry. Indeed, France sought payment from Google for linking to (and aggregating) stories from their nation's newspapers. In response, Google established a €60 million Digital Publishing Innovation Fund. Yawn. With $12.5 billion, Google could have purchased The New York Times and still have $11 billion left to create global digital publishing innovation fund.

Bing!

At Microsoft's current valuation of $233 billion, Google could have bought its only legitimate search competition - Bing. Trefis estimates that Bing contributes 3% to Microsoft's valuation, about $7 billion at today's prices. That would leave Larry Page with enough left over to buy Microsoft's Xbox and Windows Phone businesses - and Skype, too!  

There is still the chance, of course, that Motorola will turn itself around. The company is rumored to be building an "X Phone" to challenge iPhone and the Samsung Galaxy S line. Perhaps all those Motorola patents could turn into a goldmine - or prevent someone from successfully suing Google or Android for billions. To date, however, the Motorola acquisition appears to be a costly diversion to Google's high-margin and highly profitable search business. Not to mention a sea of failed opportunities to spend its money more profitably. 

Top image courtesy of Wikipedia Commons.

Google slide image and Google-modified Prius image from Google. Google Glass image courtesy of Wikipedia Commons. Image of Sergey Brin from Flickr. "Forgotten Television" image from Fotopedia.  Moon image courtesy of Wikipedia Commons. Picture of newspaper from Fotopedia. Picture of Steve Ballmer via Microsoft. 

According to a report from the Associated Press, Google will cut another 1,200 jobs from the Motorola division, which it acquired in August, 2011 for $12.4 billion. Google announced in Aug. 2012 in a filing with the Securities and Exchange Commission that it would lay off 4,000 of Motorola’s employees and close a third of its 90 worldwide facilities. 

The layoffs are a continuation of Google’s streamlining of Motorola. We noted last week that Google has had two longstanding goals with its struggling smartphone division: clear the rubble and build for the future. 

Here is more rubble to clear. 

Google has run up $1.1 billion in operating losses with Motorola since the deal was completed in May 2012, according to reports. The only smartphones that the MotoGoo combination have released since the acquisition became final have been three lackluster Droid Razr devices – HD, Maxx HD and M – that fell flat in the holiday shopping season against the likes of Samsung’s Galaxy devices and Apple’s iPhone line. 

What Lies Ahead

In 2012, Google began the arduous process of cleaning up Motorola’s supply chain, a bloated and complex environment built up over decades of hardware manufacturing. Google’s plan was to simplify the supply line by using less key components (processors, etc.) by paring back the amount of devices that Motorola made. That included getting out of the feature (dumb) phone business and producing only one distinct series of smartphones. That goal is still in progress, but Motorola has cut back its entries into the market to just the Razr devices. 

As mentioned last week, Motorola still has about six months or more of product its pipeline to clear out before it can really focus its attention on creating next-generation smartphones inspired by Google’s software and aesthetics. As such, Google has replaced most of Motorola’s top executives and replaced them with their own hand-picked people such as former DARPA whiz Regina Dugan and former Apple evangelist Guy Kawasaki. 

As has been Google’s motto since it was founded, the company is collecting as many top minds as it possibly can and setting them on a task. This time, the task is not creating a better search engine or organizing the world’s information, but rebuilding a once-powerful brand that had become bloated and stagnant. It is a different type of problem for Google. Instead of building from a blank slate, it has to dissemble a mammoth organization while also keeping an eye out for the near term and long term future.

It is hard to tell what type of device will come of the clear-and-build project. Knowing Google and Motorola’s particular strengths, it will likely be very thin, have a long battery life and be extraordinarily intelligent with Motorola’s “smart actions” (introduced with the last round of Razrs) and Google Now baked straight into the Android operating system.

With all of Google’s amassed talent, it is hard not to get kind of excited about the first true release of a MotoGoo phone. But first, Google has to clear away the rubble.

When it comes to runway, Google is still dealing with the product pipeline that it inherited from Motorola when the acquisition received final approval by regulatory bodies way back in February 2012. Speaking at the Morgan Stanley Technology Conference this week, Google chief financial officer Patrick Pichette said Google still has to deal with 18 months of product pipeline that it has to “drain right now.” 

That product pipeline was on full display in September when the latest Droid Razr devices were released. The reaction to the Droid Razr HD, Razr Maxx HD and the Razr M was a universal yawn, with all three devices seen as no more than iterative updates to the aging Razr series as Google continues to liquidate Motorola’s existing design and assets. 

(See also The New Motoroloa: Google's Hardware Division Steps Into The Future.)

Even the next new smartphones that will soon come out of Motorola are not anything to write home about. Pichette seems well aware of that fact, calling them, “not really to the standards that what Google would say is 'wow' — innovative, transformative,” according to a report from The Verge. 

Essentially, Google has to clear away years of Motorola mediocrity, past and future, before it can really build a device that will stand out as the quintessential Android smartphone. 

That is where Guy Kawasaki comes in.

Kawasaki Joins Google To Advise Motorola

Guy Kawasaki – venture capitalist, publisher and early Apple evangelist – loves Android. We learned this in December, and heard more details when he sat down with ReadWrite editor-in-chief Dan Lyons for a ReadWrite Mix event in San Francisco last December. The revelation that Kawasaki, such a staunch Apple advocate for so long, was an Android fanboy was shocking to many people in the pro-iPhone camp. 

(See also Shock And Awe: Apple Legend Guy Kawasaki has Become A Hardcore Android Fan.)

Apparently, his devotion to Android runs deeper than he originally let on.

Kawasaki tweeted on Wednesday that he will be joining Google as an advisor to Motorola. Kawasaki will focus on “product design, user interface, marketing, and social media,” according to a post on his Facebook page.

“Motorola reminds me of the Apple of 1998: a pioneer in its market segment, engineering-driven, and ripe for innovation. I believe that great products can change everything. For example, the creation of the iMac G3 (the Macs that came in colors such as Bondi, Strawberry, Blueberry, Lime, and Grape) was a pivotal event for Apple,” Kawasaki wrote. 

What's Next For Motorola?

Between Pichette and Kawasaki, we're getting a pretty good idea of the direction of Motorola under Google’s stewardship:

1. The first thing that needs to be done is to clear the pipeline.
2. The next is to employ smart designers and idea people like Kawasaki to create transformative products under the Motorola name. Will that be the mysterious “Motorola X” that Google has supposedly been working on?

If we date Motorola's 18 months of product pipeline from the time when the acquisition was approved by the U.S. Department Of Justice, Google still has nearly six months or so worth of Motorola supply chain to suffer through. It would not come as a surprise to see at least one more iteration of the Razr series from MotoGoo before we we find out what Motorola-under-Google really has up its sleeve. 

After all this time, it had better be something that will make us all say "Wow!"

Top image: Motorola Droid Razr M by Dan Rowinski

But eventually it all goes to hell.

FixYa, a community-based troubleshooting guide, has aggregated the top problems of smartphones from a variety of manufacturers and assigned a “dependability” score to each. The data comes FixYa’s database of 30 million users with about 8 million product problems. FixYa's "Smartphone Reliability Report" looked specifically at four smartphone manufacturers: Apple, Samsung, Nokia and Motorola. 

Smartphones can go from exciting and shiny new toys to problematic and frustrating devices in the blink of an eye. Anybody that bought a HTC Thunderbolt will tell you that, after a week or so, the battery could not keep up with the large screen or LTE connectivity. What use is a wireless phone that you have to keep plugged in all the time?

I’ve had smartphones that completely lost battery life after about nine months (greetings, Samsung Captivate). Smartphones where the batteries, literally, blew up (hello, BlackBerry!). Others where the proximity sensor and camera just stopped working after about a year (looking at you, Motorola Atrix). After several months, one smartphone just decided it no longer wanted to let me scroll down the screen easily (Nokia, take a bow). 

Sometimes problems are the result of straight user error (I swear, 33% of people I know have cracked screens). Other times it's just shoddy manufacturing or design. Batteries can be abused by people that don't really know how to take care of a rechargeable device. 

No one company is immune from dependability issues. The biggest complaint against Apple’s iPhone is battery life. Samsung apparently suffers from a litany of microphone issues. People dislike Motorola for pre-installed apps (Motoblur was a disaster, but that should change with Google’s stewardship). 

Who came out the winner in FixYa's ratings? To the surprise of probably no one, Apple. 

It's not that people had no problems with their iPhones on FixYa. Battery life was a major issue for users, followed by a lack of new features. 

Samsung ranked well below Apple, but far ahead of Motorola and Nokia. Given the variety of smartphones that Samsung makes, it is hard to point at any one model and say, "this is the problem." For instance, users rated the battery life on the Galaxy S3 as a positive feature, while denigrating battery life on the Galaxy Nexus.

Nokia was well behind its arch nemeses Apple and Samsung, though it's also hard to pinpoint any single device as most problematic. FixYa gives Nokia a 22.15% market share, so it's taking into account Symbian and Asha devices as well as the newer Windows Phone Lumia lines (market share stats cited by FixYa from StatCounter). Nokia also has an interesting problem in that some users complained that "the glass gets hot."

Motorola is the trailer in the group. Users said they like the battery life on Motorola devices, but hated the pre-installed apps. Those pre-installed apps come from a previous generation of Motorola devices (like the Atrix) and from carriers like Verizon. Motorola's Android skin, Motoblur, is essentially being phased out as Google takes a more active role in designing the hardware and software of the devices.

What is the most common problem you have with your smartphone? Let us know in the comments. 

Top image courtesy Shutterstock

The smartphone market is about to get very interesting - with big efforts from two giant companies.

Earlier this month, Sony's debuted its new Xperia Z to much fanfare at the Consumer Electronics Show (CES) in Las Vegas. Meanwhile the rumor mill has been abuzz with reports that Google will introduce the long-awaited Motorola X at its annual I/O conference in May. But both companies' latest smartphone efforts will have to exceed what's already available to succeed in a crowded market. But the strategies they need to follow are radically different.

Sony's Challenge

For Sony, the Xperia Z represents something of a restart in the smartphone market. It's no secret hat Sony has struggled in the smartphone business, a distant follower to Samsung in the Android market. But the Xperia Z is everything Sony's earlier smartphones weren't: it's sleek, stylish and has all the bells and whistles consumers have come to expect. It won't come cheap, but Sony's best products never did (and its low-end products were dismal failures). The Xperia Z is a return to form for the Japanese consumer electronics giant.

Sony finally has the right product. But it will take more than a better mouse trap to grab jaded mobile customers. To play catch-up, Sony will have take full advantage of the considerable resources at its disposal:

1. Tying It All Together. Like Samsung, Sony sells a full line of electronic devices including TVs, gaming consoles and PCs.  Sony needs to market these products as pieces of a digital universe offering entertainment and productivity. It should be tied together using the elegant packaging Sony is known for.

2. Content. Sony is a unique organization in that it owns content - and lots of it. Sony's studios produce popular TV shows, movies and music, all of which can be repurposed as mobile entertainment. Unique mobile applications, based on some of Sony's more popular titles, written exclusively for Xperia Z and able to run on other Sony hardware would help give consumers a compelling reason to buy.

Google's Challenge

Google's obsession with delivering its own hardware into the smartphone market is also hardly a secret. It's counting on the Motorola X Phone to dazzle. Here's are are a couple ways Google can make sure it does: 

1. A High-End Camera. Smartphone cameras have largely replace point-and-shoot cameras. They offer convenience and many of the same features - like image filtering and photo sharing. But there's more to digital photography than increasing resolution and panoramic imaging. Google can distinguish itself by offering more advanced digital photography features like augmented reality, high-dynamic-range imaging, low-light denoising and image inpainting. Making them native to the camera wherever possible will boost performance and give the X a competitive advantage.

2. A Better User Experience. Android smartphone designers have sometimes been so focused on the inner workings of the hardware, that they've overlooked the importance of aesthetics. If the X Phone is to be successful, it must offer a superior user experience. Google can do that by incorporating new user-interface technologies like gesture recognition. biometrics and gyroscopes. According to some of the early rumors, the X Phone would sport a flexible display. More recent reports say that Google has backed out of that plan. If true, it's a shame. A flexible display would have given the X Phone that extra something the others don't have.

By next fall, there will be two important new entrants in an already crowded field. One will be the latest product from a revitalized Sony. The other, a long-awaited offering from Android inventor Google.

But if they really want to have a big impact, they'll need to do more than just follow the leaders.

Images from Sony.

Patent trolls are also deliberately provocative to produce the most amount of disruption possible. The end goal for patent trolls, however, is to line their wallets. They may think of themselves as purveyors of fine intellectual property, but they are not actually creating anything or delivering useful items to the innovation economy. Patent trolls, by definition, are Non-Practicing Entities (NPEs) – they do not practice what they preach (or litigate over). 

InterDigital: A Fine Line In The Sand

A very fine line has been drawn in the sand on what constitutes a patent troll and what does not. A company called InterDigital, an “innovator” of 3G/4G wireless solutions, straddles that line. On one hand, InterDigital has a large engineering team that works to create patentable material on wireless technology. On the other hand, InterDigital does not create anything with those patents. It doesn't build the networks, the hardware, the base stations, servers or processors. It takes its patents and attempts to license them to mobile manufacturers and when those manufacturers refuse, InterDigital sues them. 

Nokia, Samsung, RIM, ZTE and Huawei have all run afoul InterDigital in the last year. In particular, the Nokia vs. InterDigital battle has been going on for a long time and has grown contentious over the last months. Today, InterDigital brought new patent suits regarding wireless technology against Samsung, Huawei, ZTE and Nokia, alleging that products from the companies using 3G/4G technology violate InterDigital’s patents.

From the complaint:

"The wireless devices at issue operate as, for example, cellular mobile telephones (including “smart phones”), cellular PC cards, cellular USB dongles or sticks, personal computers such as laptops, notebooks, netbooks, tablets and other mobile internet devise with cellular capabilities, cellular access points or “hotspots”, and cellular modems."

Basically, this covers anything you could possibly think of that might connect to the Internet in any way using cellular connections. InterDigital proposes an import ban for the four companies for any products that allegedly violate its patents. 

This is where the line between a company looking to protect its own intellectual property and status in a marketplace and a patent troll exists. Though many patent lawsuits from the likes of Apple, Samsung, Nokia, RIM, Motorola or others in the mobile manufacturer ecosystem are looking to hurt their rivals by keeping smartphones and other devices off retail shelves, InterDigital has no such marketable product to protect. 

In other words, this looks like a shakedown. 

InterDigital threatens import bans from these manufacturers with the hopes that the companies will back down and eventually license the patents in question. RIM has already succumbed to InterDigital and extended an agreement it had with the company to cover 4G technology like LTE and LTE-Advanced. 

“[InterDigital] is a patent licensing organization, not a technology licensing operation,” said James Bessen, a lecturer at the Boston University School Of Law and an expert on NPEs. “I do know people that study trolls who do consider it a patent troll … [InterDigital] is definitely considered a non-practicing entity.”

Lawyers like Bessen are not technically supposed to use the word “troll” when defining companies that act like patent trolls. The preferred technical term is “patent assertion entity.” A variety of companies fit into this category, notably the RockStar Consortium backed by the likes of Apple and Microsoft that deals with the leftover patents from the Nortel auction. InterDigital has the fifth largest holding of patents among companies considered to be NPEs in the United States with 3,138 patents, according to PatentFreedom. Intellectual Ventures is considered the biggest troll of them all, with 15,000 – 20,000 patents held. 

Manufacturers' Drag Fishing

InterDigital and its NPE cohorts are, of course, not the only companies that make news in patent litigation these days. The biggest tech story of 2012 was the patent fight between Samsung and Apple in which a jury awarded the Cupertino-based iPhone maker $1.05 billion in damages. Another top story of the year was the Google and Oracle smack down over the use of Java in Android. Apple and HTC got into a patent dispute and we learned that Apple and Microsoft have a patent settlement in place that required no litigation from either party. Ericsson has just filed a patent claim against Samsung in the U.S. with the International Trade Commission. Nokia and Research In Motion have had their patent battles. Such a complicated web patents weave.

Would you call Apple a patent troll? Google? Some people have and will continue to do so while the lawsuits continue to fly around courts. Technically, of course, they are not considered patent trolls under the definition of NPEs. These are definitely practicing entities, putting patented technology to work in products that people can actually buy. 

Yesterday, the U.S. Federal Trade Commission ruled on its 19-month investigation of Google’s antitrust case. While Google escaped mostly unscathed from the unfair search practices, the FTC did come down on Google-owned subsidiary Motorola for its patent-wielding practices. Motorola (even before the Google acquisition became final) had been suing rivals using patents that were considered SEP – Standard Essential Patents. SEPs are the type of patents commonly used by many companies because the ecosystem could not function without that particular technology. Think of Wi-Fi or cellular patents and you get the idea. 

SEP patents are supposed to be licensed on fair, reasonable and non-discriminatory terms (FRAND), meaning that companies like Motorola are not supposed to use these patents to sue other companies or seek injunctions and import bans. To a certain extent, that is what Motorola was doing and the FTC put a kibosh on the practice, hoping to create a template for future patent licensing between manufacturers. 

Where Does That Leave InterDigital?

InterDigital has seven specific patents pertaining to 3G/4G technology in its most recent suit against the four major manufacturers. InterDigital could be hurt by the FTC’s ruling on Motorola’s patent practices because of the SEP nature of InterDigital’s patents. In its complaint, InterDigital says that the FRAND defense would not apply to its patents. It also says that barring devices from the four listed manufacturers would not harm competition in the U.S. because InterDigital's other licensees (which now includes RIM), "would easily meet market demand with non-infringing devices." 

Seems like a convenient argument, no? InterDigital claims it is neither subject to FRAND nor would it provide a negative impact on competition. The latter might be true if Samsung was not listed in the complaint, but the Korean mobile manufacturer is largest smartphone supplier by volume in the U.S. 

In the end, InterDigital may find the Motorola ruling from the FTC will harm its ability to litigate going forward. We will also see in 2013 how courts end up treating other NPEs, like Intellectual Ventures. 

InterDigital is clever, though. It rides that fine line between patent troll and innovator with a large research and development department. But, as Bessen put it, InterDigital still looks like a troll by any other name. 

Top image courtesy Shutterstock

Judge James Robart, a federal judge based in Seattle, ruled (PDF) late last week that Microsoft owes Motorola some sort of royalty for the patents it owns covering 802.11 Wi-Fi technology and H.264 video codecs, but that those patent royalties would be fair and reasonable, and up to the court to decide. In no way, the court ruled, does Motorola have the right to ban the Xbox from being sold.

Taken by itself, the Microsoft-Motorola suit is tangled enough, stretching back to October 2010, when Motorola sent Microsoft a letter offering to license the patents it owned, which were part of the 802.11 Wi-Fi technology. The court had found that the terms Motorola offered, however, were excessive: 2.25% of the price of the end product, plus all of the 802.11 patents that Microsoft itself owned. Put another way, Microsoft's only real product that incorporates an 802.11 Wi-Fi controller is an Xbox 360. One of the cheapest models is the Xbox 360 with an included 4GB of storage, which retails for $199.99; at that royalty rate, Motorola would be owed about $4.50 for each of those Xbox models Microsoft sold.

The Motorola-Microsoft litigation has also sucked in a separate dispute, involving the H.264 video patents that Microsoft incorporated into Windows 7. (You might know H.264 as MPEG-4, one of the more popular video codecs, used today by Blu-ray, Adobe Flash, YouTube, and Microsoft's own Silverlight, among others.)

That royalty rate may not sound like a lot, even taking into account the razor-and-razor blades model console makers employ, where consoles are sold near or even below cost, and profits are made up via software sales, services like Xbox Live and media sales.

What is FRAND?

But the patents in question fall under the so-called FRAND category, which used to be known as RAND, or reasonable and non-discriminatory. (The term "fair" was tacked on at some point.) The logic is this: For a broadly accepted technology like Wi-Fi, contributions are made from a variety of companies. FRAND assumes that those individual technologies are themselves patented, but contributed to a "patent pool" that is legally shared among the participants.

Companies may have to take a license to access FRAND technology, but the idea is to facilitate wide adoption by keeping royalties low. A company with a proprietary technology can charge higher royalties, but also risks alienating customers. A good example of this is Apple's Lightning connector, which replaced the ubiquitous 30-pin connector used by its previous products. So far, Apple has struggled to find third-party products, such as hard drives, to adopt the new connector.

FRAND issues have come up in other cases -- involving Motorola, not surprisingly. In November, a judge dismissed a case between Apple and Motorola Mobility that also covered Wi-Fi and video-streaming patents. Motorola had also attempted to set royalty rates at 2.25%, and, like Judge Robard, Judge Barbara B. Crabb in a Wisconsin federal court also ruled that those FRAND terms weren't fair at all. The problem, unfortunately, was that Apple itself apparently overstepped its bounds, sniffing that it wouldn't be bound by the court's ruling if Apple itself decided that the royalty rate wasn't high enough. 

"... Apple states that it will not commit to be bound by any FRAND rate determined by the court and will not agree to accept any license from Motorola unless the court sets a rate of $1 or less for each Apple phone ... ," Judge Crabb wrote, as reported by Groklaw. "In other words, if Apple is unsatisfied with the rate chosen by the court, it 'reserves the right to refuse and proceed to further infringement litigation.' "

Which, as every parent knows, is the legal equivalent of hearing "You're not the boss of me!" The court's response -- like that of many parents, was to take away the child's privileges.

Putting "Fair Back Into FRAND

In the Microsoft case, Judge Robard's ruling states that when Motorola offered to provide its 802.11 patents to Microsoft under RAND terms, Motorola was legally obligated to follow through -- and at fairer terms than originally offered. Over the past few months, Motorola has attempted to wriggle free; it argued, for example, that Microsoft's rejection of its offer also freed Motorola of its obligations to provide Microsoft a license at all. The crux of the matter is that Motorola owes Microsoft a patent license, at FRAND terms that haven't yet been decided. The court is working on this, and will reportedly issue its ruling for the royalty rate early next year.

The other major complication to cases like these are foreign rulings, especially from Germany, which has become a power player of sorts in establishing international injunctions. Judge Robard had previously blocked Motorola from enforcing any injunction the German court granted; now, given that he had already ordered Motorola to sign a FRAND license with Microsoft, he lifted the ban -- essentially, the order made it a moot point.

Patent litigation now seems to be an essential aspect of modern technology -- an arms race where the company with the biggest arsenal of patents wins. What Judge Robard and Judge Crabb are doing, thank goodness, is forcefully negotiating some sort of detente.