Over the last year and half, it turned out that Huawei's patent enforcement campaign against Samsung and Qualcomm's antitrust issues as well as the parallel patent infringement cases raise bigger and more interesting issues than any other smartphone patent disputes going on as we speak.
Qualcomm is just being Qualcomm: it's always leveraged its wireless standard-essential patents more aggressively than the rest of the industry (maybe even more than the rest combined). But now it has competition watchdogs from around the globe going after it; it's embroiled in cross-jurisdictional litigation with Apple (large parts of which are effectively an Intel-Qualcomm dispute in the first place, with Apple purportedly having decided to use Intel's instead of Qualcomm's baseband chips in new iPhones); and someone else (analysts believe Huawei) stopped paying royalties, too.
Huawei, however, has been undergoing a steady transformation for a while. The first time it took center stage as a patent enforcer was in 2012 when it went after fellow Chinese device maker ZTE--in Germany, where Huawei obtained an injunction it never elected to enforce and took the question of injunctions over standard-essential patents (SEPs) all the way up to the Court of Justice of the EU. But for about two years it's now been trying to coerce Samsung into a license agreement on terms that the Korean electronics giant considers utterly unreasonable according to court filings.
Both Huawei and Qualcomm have anticompetitive intentions. Huawei and Samsung are the two leading Android device makers, so any transfer of supra-FRAND royalties from one to the other would distort competition in the device market centered around Google's mobile operating system. Qualcomm is clinging to its business model where patents are leveraged to drive chip sales and chip sales are leveraged to the benefit of the patent licensing business. As I noted above, when Qualcomm enforces patents against Apple, it quite often looks almost like Apple is in the crosshairs as a proxy for Intel.
As I'm keeping an eye on Huawei and Qualcomm's patent-leveraging strategies, I'd like to highlight the three ways in which some aggressive patent holders are seeking undue, anticompetitive leverage in our times (in no particular order):
1. Chinese patent injunctions
In the original "anti-Android" smartphone patent wars, China didn't play a role yet. Even Apple and Samsung weren't suing each other there (just in about ten other countries before the dispute lost steam and, ultimately, settled out).
By now, China is a patent litigation hotbed. In October (2017) it became known that Qualcomm brought patent infringement claims against Apple in China, where the iPhone is manufactured and where Apple enjoys strong sales). In its home court, Huawei won a couple of patent injunctions against Samsung, but due to a U.S. antisuit (anti-enforcement in this case) injunction, it doesn't get to enforce them. Huawei is trying to overcome that roadblock through a Ninth Circuit appeal filed with the Federal Circuit, but the latter declined to shorten the time for Samsung's brief, which will be due on the 27th of this month.
2. United States International Trade Commission (ITC)
If Huawei had known in 2016 (when it started suing Samsung) that Presidents Clinton and Obama weren't going to get the next best thing to a joint third term, it might have given an ITC complaint against Samsung a try. It didn't, but Qualcomm has already brought two such complaints against Apple. In one of them, it may prevail on one patent, but its strategy of targeting iPhones incorporating Intel baseband chips raises serious antitrust and public-interest issues.
This Qualcomm scheme, like Huawei's Chinese scheme, may be thwarted by an antisuit (anti-enforcement, to be precise) injunction in the Northern District of California. An antisuit injunction motion was brought on behalf of consumers in an antitrust class action against Qualcomm. Judge Lucy Koh will hear the motion on the 30th of this month. She denied the parties' motion for a rescheduling, and in the same order indicated that she won't necessarily rule on the motion at the end of the hearing but may take it under advisement.
3. German patent injunctions
Germany is still a top three patent infringement jurisdiction and the undisputed #1 in Europe.
Whatever the reason may be, Huawei is not--or not yet--known to be going after Samsung in Germany, but Qualcomm is actively seeking to gain leverage in Mannheim and Munich. There are currently six-week school vacations in the relevant states, Baden-Wurttemberg and Bavaria, but in the middle of September, just days before the late-September start of the 2018 Oktoberfest, Qualcomm and Apple will square off in Mannheim (September 18) and Munich (two days later). And there'll be more to come, including but not limited to another Mannheim trial in early October.
Not only, but particularly in Germany, the current hiatus is the quiet before a scheduled set of storms.
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