Monday, September 4, 2017

Korean court denies Qualcomm's motion to stay execution of KFTC antitrust ruling

Last December, the Korea Fair Trade Commission (KFTC) handed down a decision against Qualcomm that U.S. tech companies welcomed. The following month, the FTC and Apple sued Qualcomm on antitrust grounds in California. In March, it became known that Qualcomm's refusal to licenses its standard-essential patents (SEPs) on FRAND terms to other chipset makers is one of the various concerns the Korean competition authority has.

Today, Reuters reports that a Korean court has denied a motion by Qualcomm to stay the execution of the KFTC ruling. That ruling, among other things, requires Qualcomm to negotiate patent licenses with its competitors and to adjust its royalty demands from device makers.

Qualcomm is still trying--and undoubtedly will keep trying--to get the KFTC decision overturned. And it can probably appeal the denial of the motion. But every defeat of this kind makes things harder for Qualcomm in other jurisdictions. So far, antitrust agencies and judges alike reject Qualcomm's legal theories. According to a source cited by Reuters, the court wasn't convinced of Qualcomm suffering irreparable harm from the KFTC ruling. Presumably, the likelihood to prevail on the merits (or, more appropriately in this case, a lack thereof) was also a factor in Korea as it would be in the jurisdictions I know.

No matter how often Qualcomm loses in one venue or another, each of the allegations brought against it must be analyzed independently--by courts and regulators, and also by those of us who express their opinions (as I do all the time). They can be wrong 99 times and right the 100th time. But fancy infographics and other aggressive, well-orchestrated PR efforts are no substitute for credibility. Qualcomm and Acting FTC Chair Maureen Ohlhausen untiringly try to convince us that everyone else is wrong and they are right on these FRAND issues. The "everyone else" who's allegedly wrong includes ever more agencies and courts. That's a growing problem for Qualcomm.

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