Friday, April 5, 2019

Judge Robart watching Qualcomm antitrust cases from far up north, finds rebates tied to antitrust gag order "an interesting case"

Of the two-day Munich conference on patent injunctions that just ended, I was primarily curious about what certain judges had to say. Yesterday it was interesting enough to witness a clash of legal cultures with respect to injunctive relief and the proportionality requirement under EU law.

Today's superstar speaker was Judge James L. Robart of the United States District Court for the Western District of Washington, famous in patent circles for his antisuit injunction and FRAND determination in the Microsoft v. Motorola FRAND enforcement case--and known to a wider audience for being (now quoting President Trump) "that so-called judge" who enjoined the federal government from enforcing Trump's original travel ban, though it turned out the Supreme Court viewed the law completely differently, and Rush Limbaugh highlighted how Judge Robart got even basic facts about the connection between migration and terrorism wrong (what's actually worse--being criticized by talk radio or by a blogger?). I really thought the attorney who argued for the Department of Justice in that latter case (the related TRO hearing was broadcast) did a great job, and the points she made there were essentially the ones that a different attorney later made in the Supreme Court, but with a better outcome.

Judge Robart is a great speaker with a sense of humor everyone appeared to like. Despite my fundamental disagreement with his handling of the travel ban case, I must say his speech far exceeded my expectations--even the ones I'd have had exclusively based on the groundbreaking antisuit injunction.

The title of Judge Robart's presentation was "The view from the corner of competition law and patents." He started with an explanation of U.S. rules governing patent injunctions, particularly eBay v. MercExchange. When he explained that non-practicing entities suing companies like Microsoft (because they're headquarted in his district) with multifunctional products, they'll hardly be able to show irreparable harm. And he jokingly noted that Germany wasn't the place to outline this take on patent injunctions. But unlike Justice Arnold from the UK, who clashed with Judge Dr. Grabinski of the Federal Court of Justice of Germany yesterday, Judge Robart presented the perspective of another jurisdiction and didn't insinuate that Germany is in breach of EU law because of its courts' approach to patent injunctions.

Since none of the Qualcomm antitrust or patent infringement cases is pending in Judge Robart's district, he was free to talk a bit about those cases--FTC v. Qualcomm as well as Apple v. Qualcomm, and more generally about Qualcomm's business model.

It became clear that Judge Robart thinks very highly of Judge Lucy H. Koh (Northern District of California) and Judge Gonzalo P. Curiel (Southern District of California; he referred to him as "[his] friend," presumably not only because both had been the target of judge-bashing by Donald Trump). That wasn't just professional courtesy. It was genuine. Judge Koh is currently working on the FTC v. Qualcomm ruling, which Judge Robart also thinks is likely to come down soon. Judge Curiel is presiding over the Apple v. Qualcomm antitrust case in San Diego, which is scheduled to go to trial in ten days--and which Qualcomm unsuccessfully sought to style as a contract dispute.

I interpreted Judge Robart's comments on Judge Koh's summary judgment ruling as him being very supportive of the notion that standard-essential patent holders should extend SEP licenses on FRAND terms to rival chipset makers. Judge Robart highlighted two aspects of Qualcomm's business model. The first one was Qualcomm's refusal to license competing chipset makers, and he sounded skeptical of whether that conduct is legal. The second one was the fact that Qualcomm charges high nominal royalties only to bring them down through rebates in exchange for licensees promising not to bring antitrust complaints, which Judge Robart called "an interesting case"--a remark that provoked laughter from the audience.

Maybe Judge Robart has the same position on gag orders as I've expressed here before: such contractual arrangements shouldn't be enforceable. He didn't explicitly say so, but despite his in-depth experience in adjudicating FRAND SEP cases, it really appeared Qualcomm's business model raised issues that he finds unusual. As do other judges. And regulators. And... bloggers.

The Qualcomm cases are very high-profile, and, quite frankly, there was no way Judge Robart could have avoided referencing them in a talk on "the corner of competition law and patents." And when one talks about Qualcomm, it's impossible not to notice that its business model presents an extreme case. Maybe "interesting" was Judge Robart's diplomatic understatement of "extreme."

Both the Erlangen conference of two weeks ago and this week's Munich conference had overlapping topics, and partly overlapping speakers. In particular, Professor Thomas Cotter (University of Minnesota), whose Comparative Patent Remedies blog covers those conferences in more detail, gave basically the same talks in both places. The Erlangen conference was more political (basically an academic conference with a view to an upcoming legislative initiative), while the Munich conference may have provided more depth to academic attendees.

Qualcomm attended the Erlangen conference. I don't know if anybody from Qualcomm was in the room today when Judge Robart spoke. If so, I guess the person was not amused.

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