Qualcomm's efforts to obtain a U.S. import ban against iPhones without a Qualcomm chip--simply put, against iPhones using an Intel chip--are facing a new challenge: a group of consumers (whose class action against Qualcomm was merged with the FTC v. Qualcomm antitrust case in the Northern District of California last year) just brought a motion for an anti-enforcement injunction that would bar Qualcomm from the enforcement of a potential future ITC exclusion order (this post continues below the document):
Yesterday, Judge Lucy H. Koh had the pleasure to terminate the long-running Apple v. Samsung dispute by granting an order of dismissal based on a settlement. Some of the time she'd otherwise have spent on the adjudication of post-trial motions can now be dedicated to this extremely interesting and important motion for a preliminary anti-enforcement injunction.
There's a precedent in the Northern District of California. By that I don't even mean my favorite antisuit injunction process in recent months (Samsung's anti-enforcement injunction against a couple of Chinese standard-essential patent (SEP) injunctions obtained by Huawei. I mean something much older, and I blogged about it at the time and hailed it as a "landmark decision": about five years ago, Judge Ronald Whyte (whom Judge Koh succeeded when he became a senior judge), enjoined two WiFi (IEEE 802.11) SEP holders named LSI and Agere from enforcing a potential ITC exclusion order against RealTek Semiconductor.
In that 2013 case, it was "only" about patent holders seeking maximum leverage for the purpose of dictating supra-FRAND royalties (which Judge Whyte didn't allow them to do). In the present Qualcomm case, the situation is a whole lot worse for two reasons:
Qualcomm's conduct has already been held to be anticompetitive. So far, Judge Koh also appears to have been rather skeptical of the legality of some of Qualcomm's business practices.
Qualcomm isn't merely seeking leverage to impose high royalties. That's part of the plan, obviously, but what makes Qualcomm's two ITC complaints against Apple particularly problematic is that Qualcomm wants an import ban against iPhones that come with a baseband chip from Intel--the only company that presently poses a significant competitive threat to Qualcomm's cellular baseband chips.
Qualcomm's position is that it doesn't want all iPhones banned since this would raise issues in the ITC's public interest analysis (impact of an import ban on the economy at large, and on society). But Qualcomm's anti-Intel focus hasn't solved the public-interest problem at all: it has merely traded one set of issues for another. It's hard to tell which one is worse. The court may very well find that the focus on Intel--i.e., the use of patents in order to defend a monopoly--is an unusually clear antitrust violation. Monopolies aren't necessarily illegal; but some monopolization tactics are.
The consumers' motion argues that Qualcomm must be enjoined from enforcing a potential ITC exclusion order because of the additional harm to consumers that it would result in (beyond what Qualcomm has already been doing anyway). The motion makes a number of good points, and I'll quote one such passage here:
"Other modem chip suppliers are unlikely to enter the market in Intel's place if Qualcomm can selectively target devices using a non-Qualcomm modem chip for exclusion. Both the potential modem chip vendor and its customers make significant (joint) investments when deciding to work together on a modem chip project, and thus both face substantial risks. For example, “Intel has invested billions of dollars to develop next generation advanced modems and technologies to improve the performance and functionality of modern smartphones and cellular communications [...]"
And here's an interesting footnote (no. 15):
"Given the delicate and high-stakes business decisions in play, the Court should not feel obligated to wait and see if the ITC actually issues the order Qualcomm has requested. The market is already very difficult to penetrate due to Qualcomm’s anti-competitive practices, and the mere uncertainty faced by Intel and Apple because of Qualcomm's ITC action itself compromises the possibility of free and open competition."
Federal judges--including, but not limited to, Judge Whyte--are well aware of how certain patent holders turn to the ITC in an attempt to make an end-run around the eBay v. MercExchange standard for patent injunctions. Normally, the federal courts don't pay much attention to what's going on at the ITC. Also, there was an InterDigital case in Delaware where the district court declined to fast-track a FRAND determination just because the defendants sought to pre-empt an ITC order. But RealTek was a case where a federal court determined it just had to thwart an anticompetitive plan by certain plaintiffs that involved the ITC.
There are two ITC investigations of Qualcomm complaints against Apple. In the first one, where only three of the six originally asserted patents are still in play, a hearing was held a couple of weeks ago. The ITC staff, which does not formally make decisions but whose input bears considerable weight with the ITC's Administrative Law Judges (and with the Commission itself), believes Apple's iPhones infringe one of the asserted patents. So there is a clear and reasonably present danger of a U.S. import ban. It's hard to predict what position the Commission (the final decision-makers at the ITC) will take on the competition-related public-interest concerns here.
Meanwhile, Qualcomm will oppose the motion, and most likely there will also be some amicus curiae briefs (just like last year--in that case, because of a Qualcomm motion to dismiss the FTC's case). For now, it's intriguing enough that consumers, in their role as class plaintiffs, have taken this initiative. But these consumers deserve broadbased support from industry!
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