I'm not sure where you are getting it from, but according to ETSI IPR Guide, Section 1.11 (
http://www.etsi.org/images/files/IPR/etsi-guide-on-ipr.pdf):
The purpose of the ETSI IPR Policy is to facilitate the
standards making process within ETSI. In complying with the
Policy the Technical Bodies should not become involved in
legal discussion on IPR matters. The main characteristics
of the Policy can be simplified as follows:
• Members are fully entitled to hold and benefit from any
IPRs which they may own, including the right
to refuse the granting of licenses.
Sure, let's also look what is allowed and not under FRAND based on Apple's past allegation against FRAND patent holders.
USITC 337-TA-794 (Samsung) http://www.essentialpatentblog.com/wp-content/uploads/sites/...
Apple alleged that Samsung violated FRAND terms in the following ways:
1)
Apple argues that Samsung was obligated to make an initial
offer to Apple of a specific fair and reasonable royalty
rate." (p.60)
ITC's finding:
The evidence on record does not suppmt Apple's position.
Apple's witness on ETSI policy and practice testified the
ETSI IPR Policy document has "no precise definition ofFRAND" and that
it is expected that parties arrive at a FRAND license through
negotiation." (p. 60)
Conclusion: Apple's own witness testified that Samsung is under no obligation to make a FRAND "initial offer." Apple and their own expert clearly knew about it.
2)
Apple also criticizes Samsung's attempt to negotiate a cross-license of
both parties' mobile telephone patent portfolios."
ITC's finding:
We cannot say that Sam sung's offers in this regard are unreasonable.
The record contains evidence of more than 30 Samsung licenses that
cover the '348 and '644 patents. See RX-173C, RX-178C, RX-188, RX-189C,
RX-191C, RX-193C to -209C, RX-421C, RX-423C. All of those licenses
include a cross-license to the licensee's portfolio. That evidence
supports a conclusion t~at a portfolio cross-license offer is typical
in the industry and reasonable. ...
Apple has offered no evidence to suggest that such portfolio cross-
licenses are atypical in the industry. 19 In fact, Apple's own witness
on ETSI policies affirmed that ETSI anticipates cross-licensing may be
part of the process of negotiating a FRAND license between two parties.
Conclusion: cross-licensing was unfair in the eyes of Apple only, not everyone else. Apple had zero evidence to backup their claims, and their own expertise again came out against it (meaning they clearly knew about the rule).
3)
Apple also complains that Samsung's offer is unreasonable because [some
redacted terms Apple claimed was unreasonable]
ITC's finding:
Apple's argument lacks merit for several reasons. First, as has been
articulated in comments to the Commission from Qualcomm, Ericsson, and
Samsung, a FRAND license could encompass a range of reasonable terms. A
reasonable cross-license with one competitor may involve a
balancing payment to Samsung while a reasonable cross-license with
another competitor may involve Samsung making a balancing payment. Both
types of agreements may be reasonable, depending on the two portfolios
at issue and each party's respective volume of sales. F"
Conclusion:
this is clearly beyond common sense. Apple is just playing dumb.
I could go on and on and point out Apple's willful ignorance on FRAND. And, yes, Apple's appeal to ignorance or your ridiculous claim that "There really isn't a clear definition for "fair" or "reasonable"," is not much of a sensical arguement.