Originally, Qualcomm asked Judge Lucy H. Koh of the United States District Court for the Northern District of California to set an extremely tight briefing schedule for the San Diego chipmaker's motion to stay the enforcement of the victorious Federal Trade Commission's antitrust remedies pending an appeal to the Ninth Circuit. If the court had adopted that schedule, Qualcomm would even have been prepared to waive its right to file a reply brief in a support of its motion.
But Judge Koh declined to give the FTC only a very few days for its opposition filing--and Qualcomm, though it still could have waived its right to file a reply brief, elected to file a reply brief yesterday (not a single day before the deadline) and counter not only what the FTC wrote but also the amicus curiae briefs submitted by LG Electronics and ACT | The App Association (this post continues below the document):
19-06-18 Qualcomm Reply Iso... by on Scribd
That reply brief is far more interesting--because it is a lot more specific especially on the question of irreparable harm--than the original motion. While I would categorize some of Qualcomm's reply arguments as non sequitur material and consider some others outright smokescreens, that reply brief does contain food for thought.
The first footnote is, however, almost a concession that a stay of the entirety of the FTC's remedies may have been too much to ask for:
"Should the Court determine that the irreparable harm Qualcomm would suffer as a result of provisions (1) and (2) of the injunction does not warrant a stay of the entire Order, Qualcomm respectfully submits that the Court should enter a partial stay of only provisions (1) and (2) of the injunction."
Accordingly, the reply brief focuses on the requirements to (re)negotiate agreements, to sell chips to unlicensed customers, and to extend exhaustive SEP licenses to rival chipset makers. Those requirements flow from the first two provisions of the injunction the FTC secured--the only ones with respect to which Qualcomm, according to the FTC and also in my observation, even attempted to make an irreparable-harm argument in its original motion.
As for any potentially renegotiated license agreements, Qualcomm insists that any harm could not be undone should Qualcomm prevail on appeal. Qualcomm labels as a "red herring" the FTC's argument that Qualcomm would still obtain "fair value" for its SEPs. Qualcomm says the problem is not that those new agreements would be negotiated without the well-known "No License-No Chips" kind of leverage, but "because of the need to negotiate in the shadow of an Order that declares—erroneously, in Qualcomm's view—that Qualcomm's typical licensing terms are unreasonable." The latter is, by the way, what I told CNN within less than 24 hours of the ruling.
Qualcomm is concerned about licensees stopping royalty payments "under valid contracts" (though Judge Koh's order obviously serves to invalidate many such agreements), "even if temporarily," and mentions Huawei as an example.
Then Qualcomm attacks the FTC's suggestion that Qualcomm could, after a successful appeal, seek "damages for any past infringement" against those who (at least temporarily) stopped royalty payments. Qualcomm states something indisputable: a license is a defense to an infringement claim as 35 U.S.C. § 271(a), the statutory definition of infringement of a U.S. patent, applies only to those who practice a patented invention "without authority."
Qualcomm is furthermore worried that the non-discrimination provision of its FRAND licensing commitment or "most favored" provisions in some of its license agreements could ultimately drive Qualcomm's royalties to the "lowest common denominator."
Qualcomm, with a declaration by one of its licensing executives (John Han), alleges that it would be impossible to prevent irreparable harm by agreeing only on "short-term or interim licenses" (as the FTC called them) or (again quoting the FTC) "contractual provisions that would mitigate or eliminate any long-term adverse consequences to Qualcomm").
All of that needs to be considered, but none of it is convincing. The appeal will take time, but we're talking about roughly a year. Negotiations, however, also take a fair amount of time. The FTC v. Qualcomm decision doesn't require Qualcomm to accept a specific set of terms within a short time frame lest the company be held in contempt. I believe it just comes down to how much of a risk Qualcomm is willing to take when betting on a successful appeal. If Qualcomm really was sure that it would prevail, then it could insist on contractual provisions that protect its rights, and there would not be any contempt sanctions before the Ninth Circuit decides. And what's practically totally impossible is that Qualcomm could not only be forced to enter into a license agreement on unfavorable terms with a first licensee and that a second licensee would then have enough time to also get a better deal (or an adjustment under a "most favored" clause) before the Ninth Circuit renders a decision. And even if the appeal surprisingly took longer, anything that happens as a result of a decision that is being appealed would hardly serve as a FRAND benchmark in any other litigation. I would expect any other case to simply be stayed in that event.
What Judge Koh could do now is provide some guidance to Qualcomm on what structural options it does have even if a stay is denied (such as that Qualcomm would not act in contempt of the injunction if it insisted on contractual provisions that protect its rights, including retroactive adjustments, in the event of a successful appeal). Maybe Qualcomm is primarily hoping to obtain such clarification while formally moving for a stay.
With a view to LG Electronics, which supports the FTC's opposition to Qualcomm's motion, Qualcomm contradicts LG's description of the state of negotiations between the parties. Qualcomm notes that it "continuously supplied chips to LGE, without any interruption, throughout the negotiations"--but if it intended to do so going forward, the injunction against its "No License-No Chips" tactics wouldn't make a difference. Qualcomm mentions "a written offer to enter into binding FRAND arbitration with LGE to try and resolve the dispute, which included an express guarantee of chip supply during the pendency of the arbitration, but LGE declined that offer." As I've explained on various occasions, including my FTC v. Qualcomm trial coverage, arbitration isn't necessarily fair. Without the right parameters, it can give an extremely unfair advantage to a patent holder making out-of-this-world royalty demands since the licensee can't counterbalance a supra-FRAND royalty demand by proposing a negative royalty.
Qualcomm also argues that a requirement to sell chips to unlicensed OEMs would have profound implications due to patent exhaustion. Qualcomm rejects the FTC's argument that Qualcomm should simply "price[s] its modem chips to reflect the fair value of its patents" (which, by the way, pretty much every other chipset makers does, and even Qualcomm does so in some other business areas than cellular modems). Qualcomm argues that it would either lose chip sales or its ability to fully monetize its SEPs "so long as other chip makers are not licensed and thus do not price into their chip offerings the cost of Qualcomm's patents, this would leave Qualcomm in the untenable position of either charging much more for its chips than do its competitors (and therefore likely losing the sales), or reducing its chip prices so that, once again, they do not reflect the fair value of Qualcomm's patents."
The passage I just quoted may very well be the weakest one in that entire reply brief. If its chipset makers aren't licensed, then this is an apples-to-bananas comparison as device makers (as many of them--and competing chipset makers such as Intel--testified in the FTC litigation) would still have to factor in the cost of licensing Qualcomm's patents.
Finally, and as we all know, Qualcomm dreads the notion of having to extent exhaustive SEP licenses to rival chipset makers. But Qualcomm's argument for a stay of that particular provision comes down to what Judge Koh has already rejected at the merits stage: the question of efficiency of multi-level licensing (licensing cellular SEPs to baseband chipset makers and other patents to device makers) versus component-level licensing. Qualcomm says that neither OEMs nor chipset makers would jump to pay royalties, so there would be disputes over whether certain patents are practiced by particular products or not. Qualcomm describes this as a risk of "obstruction and delay," but that holdout-style argument does not appear to be sufficient to make a case for irreparable harm. Other patent holders face those challenges all the time (as the FTC noted in its opening statement back in January).
In that context, Qualcomm also demands "adjudicative comity" (respect for other jurisdictions) because its settlements with China's NDRC and the Taiwan Fair Trade Commission did not involve a requirement to extend licenses to rival chipset makers. I don't understand the comity issue here: if additional parties get licensed, it doesn't frustrate any policy or decision by other antitrust agencies. If the NDRC or the TFTC settled their cases without such a requirement, why would it hurt them if, say, MediaTek obtained a license as a result of the U.S. FTC case? I can't think of any negative effects on competition in those markets.
Part B of Qualcomm's reply brief addresses the likelihood of success of its appeal, with an emphasis on the need for a court to determine that violations are "likely to reoccur" before the FTC can be granted the injunctive relief it successfully sought here. What is missing here is a proposal for how an antitrust offender in a dynamic market could ever be enjoined from some behavior since the court would always have to set some sort of cutoff date.
Part C, finally, makes a national security-centric public-interest argument, with a particular focus on the decision by the Committee on Foreign Investment in the United States (CFIUS) to block Broadcom's attempted acquisition of Qualcomm. The FTC's position was that the CFIUS decision was unrelated to the behavior at issue in the antitrust case, but Qualcomm points to the CFIUS's position that "[c]hanges to Qualcomm's business model [as a result of an acquisition by Broadcom] would likely negatively impact the core R&D expenditures of national security concern." I tend to agree with Qualcomm that the content of the CFIUS letter is significantly more helpful in the public-interest context of the motion to stay than the FTC acknowledged. However, the CFIUS did not block Broadcom's hostile takeover of Qualcomm in order to enable continuing antitrust violations.
What I found interesting is that, with reference to ACT | The App Association's amicus brief, Qualcomm's reply brief also refers to the European SEP policy debate and, specifically, the two competing CWAs (CEN-CENELEC Workshop Agreements). One of the exhibits attached to Qualcomm's reply brief is CWA1, which Qualcomm and similarly-minded companies support, while there is far broader and stronger support for CWA2.
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