On Friday (August 30), one week after Qualcomm's opening brief in its Ninth Circuit appeal of Judge Lucy H. Koh's antitrust ruling in favor of the Federal Trade Commission as well as the Ninth Circuit's August motions panel's decision to grant Qualcomm a stay of two injunctive remedies, eight amicus curiae briefs were filed in support of Qualcomm--some officially claiming to support neither party, but practically all of them supporting Qualcomm's positions.
I'm not overwhelmed because neither the filers nor, at first sight, their views are a suprise. But inundated I do feel.
So far I've just commented on one part of Qualcomm's opening brief: its argument, with which I agree in two respects but not in all others, against the component-level licensing obligation. I'm going to do a follow-up to that one because I've concluded that SEPs really are subject to compulsory licensing, as they already were in Germany a long time ago under the Orange-Book-Standard doctrine there, and I found an interesting old U.S. case where the DOJ imposed a compulsory-licensing obligation on a patent holder. But before I even got there, much less found time to address the other parts of Qualcomm's opening brief, there's been that flood of amicus curiae briefs.
Let's start with the one that will bear most weight with the judges based on the submitter--the Antitrust Division of the Department of Justice (DOJ) filed an amicus brief on the United States' behalf (this post continues below the document):
Once again, Antitrust Assistant Attorney General Makan Delrahim's division is doing his former client a favor. In addition to backing Qualcomm's core positions on the merits, the DOJ argues that even if any liability finding was affirmed, the United States Court of Appeals for the Ninth Circuit should vacate the injunction and remand the case to the United States District Court for the Northern District of California for a remedies hearing. Additional briefing and a hearing on remedies are procedural steps the DOJ already suggested a few months ago.
Two former chief judges of the Federal Circuit are also among the individuals and organizations rallying behind the San Diego chipmaker. Retired Chief Judge Paul R. Michel, who already supported Qualcomm's motion to stay, argues among other things that the Smallest Salable Patent-Practicing Unit (SSPPU) rule isn't all that important and, if it was, it should be applied differently here. His successor Randall R. Rader, who stepped down over allegations of being improperly close to a patent litigator, is one of 20 antitrust and patent law professors who also filed an amicus brief. On the list of signatories of that one I saw several names of professors who have previously taken pro-SEP-holder positions. The usual suspects, one might say, but that also applies to Nokia's and InterDigitroll's (okay, the company is named "InterDigital") briefs. No company other than Qualcomm has such a strong and immediate interest in the outcome of this appeal as Nokia, which is a defendant to automotive industry supplier Continental's FRAND/antitrust case against the Avanci patent pool firm and some of its contributors (Avanci, Nokia, Sharp and others are trying to get that one dismissed or to be transferred out of Judge Koh's San Jose court, but Continental's opposition brief appears more than strong enough to prevent a venue transfer). And it bears repeating that Nokia itself once formally complained about Qualcomm's business practices at a time when Nokia was the market-leading handset maker.
Interestingly, I haven't seen a filing by Ericsson (hopefully not due to an oversight of mine)...
Dolby Laboratories is another patent monetizer who has repeatedly supported SEP abusers through amicus briefs.
The International Center for Law and Economics and an organization named Alliance of U.S. Startups & Inventors for Jobs ("USIJ") have also made filings.
I've uploaded all eight documents to Scribd, and linked to them from this post. I may very well comment on their content later on as I digest and discuss the different pillars of Qualcomm's appellate strategy. The FTC is going to get an extension until shortly before Thanksgiving to file its responsive brief, so there still is a lot of time to talk about the issues--and the hearing probably won't take place before late January at the earliest, with February being more likely.
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