Tuesday, July 9, 2019

Qualcomm files motion with Ninth Circuit for partial stay of FTC antitrust remedies

Within only a few days of Judge Lucy H. Koh's order unsurprisingly denying Qualcomm's motion for a stay of the Federal Trade Commission's antitrust remedies, Qualcomm has taken this matter to the United States Court of Appeal for the Ninth Circuit (this post continues below the document):

19-07-08 Qualcomm Motion to... by on Scribd

I just wanted to be of service and share the document with you, though I lack the time right now to go into detail (I may do so later, most likely after Qualcomm's reply brief). Therefore, just a very few observations for the time being:

  • Originally, Qualcomm wanted Judge Koh to stay all aspects of the injunctive relief obtained by the FTC. Now Qualcomm focuses just on two parts: (i) the requirement to extend exhaustive SEP licenses to rival chipset makers, and (ii) the "No License-No Chips" part, which includes an obligation to renegotiate existing licenses.

  • On LinkedIn, the chairman of Orrick Herrington Sutcliffe's antitrust practice group, John J. "Jay" Jurata (whom I previously mentioned in connection with a paper on the UK Unwired Planet global FRAND rate case), noted an irony:

    "Even Qualcomm believes patent hold-up is real! 'If this Court does not grant a stay, Qualcomm will be forced to negotiate under the cloud of an injunction requiring it to accept terms to which it would not otherwise agree.'"

    I obviously remember Qualcomm's various policy statements and amicus curiae briefs arguing that SEP holders should be entitled to injunctions. The most outrageous one of those bashed Apple at a time when Apple was just a customer--not an adversary--of Qualcomm's, and was subsequently withdrawn. So Qualcomm has no qualms about others being "forced to negotiate under the cloud of an injunction requiring [them] to accept terms to which [they] would not otherwise agree."

  • What Qualcomm's attorneys, now led by Goldstein & Russel's Tom Goldstein, put front and center is that the FTC brought the lawsuit with only two commissioners voting in favor (at the time, there were only three commissioners), and that former Qualcomm attorney (in terms of his positions, forget the "former") and now-Antitrust Assistant Attorney General Makan Delrahim and FTC commissioner Christine Wilson disagree. So they're trying to discredit the case and the ruling, and I have my doubts that this will impress the Ninth Circuit, especially given Judge Koh's stellar reputation throughout and beyond that circuit as well as the fact that her judgment is simply in the global antitrust mainstream in light of other decisions in the EU and in Asia (with a second EU antitrust hammer having been unofficially announced by DG COMP to come down in the months ahead, possibly just at a time when the Ninth Circuit will be working on a decision on this motion).

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