In the January 2019 trial, Qualcomm's #1 problem was that virtually the entire mobile device industry testified against it (apart from a very few companies who, like Qualcomm, refuse to license chipset makers, though a couple of them once lodged their own antitrust complaints against Qualcomm for that reason). In terms of amicus briefs filed with the Ninth Circuit, it's pretty much the same picture again: companies who failed in the mobile phone business and trolls support Qualcomm (as does Makan "Macomm" Delrahim, the Antitrust Assistant Attorney General who used to work for Qualcomm), while the rest of the industry presents a united front and supports the FTC.
The collective membership of the four high-tech industry bodies who filed amicus curiae briefs in support of the FTC goes far beyond the ones whose testimony mattered to the district court. That's because those organizations have many members who care about standards but don't necessarily implement the cellular standards at issue in this particular case.
The groups who have now made filings for the FTC and against Qualcomm cound companies like Amazon, Apple, Google, Facebook, Microsoft (those five are sometimes collectively referred to as "GAFAM") among them, but also the likes of Intel, Cisco, eBay, Salesforce, Uber, and major carriers like Sprint, T-Mobile, and Verizon.
That's basically the most vibrant part of the U.S. economy. (We'll also talk about a couple of briefs filed by automotive industry groups, but not in this post.) And as the briefs note, those companies invest huge amounts in R&D and hold vast numbers of patents.
Unfortunately, Macomm Delrahim can make--or tell his subordinates to make--filings in the name of "the United States." But in reality he just advances his own agenda, which is precisely that of his former long-time (and presumably future) client--and it has nothing to do with MAGA. With almost the entire U.S. tech industry against him, he's clearly a liability for the Trump Administration. Former Republican government officials such as former Secretary of Homeland Security (under President George W. Bush) Michael Chertoff and former FTC chairman (under the same president, but also in senior FTC positions under President Reagan) Professor Timothy Muris publicly disagree with Mr. Delrahim.
I regret to say so despite, to the best of my knowledge, being the only tech/IP blogger to have declared himself a Trump supporter roughly four years ago and having repeatedly (mostly on social media) supported the President. But the DOJ Antitrust Division's amicus briefs in this context here are absurd, and that's why I'm glad the industry tells the United States Court of Appeals for the Ninth Circuit what's truly in the interest of the U.S. economy.
For the most part, the four briefs just reinforce the FTC's points and explain the importance of standard-setting and compliance with FRAND licensing commitments (including licenses to chipset makers) from an industry perspective. While it's very important that the industry at large makes this effort, there's nothing surprising in there, apart from a reference in ACT | The App Association's brief--which also talks about the need for thousands of small IoT innovators to have access to SEPs on FRAND terms--to a case in which SEP-related issues allegedly prevented innovative products from being created:
"The Association has direct experience with the deleterious effect of SEP abuses. For example, one of our members sought to develop a novel drone device (and associated software platform) for firefighting agencies, which would have enabled firefighters to monitor and address dangerous conditions. Concerns over after-the-fact SEP abuses ultimately swayed the member not to bring the product to market, however. In short, the company’s inability to have certainty regarding product costs undermined an otherwise-innovative new business."
It's important to know that ACT's members are thousands of small and medium-sized companies, though it also has a few supporters among large players.
Here are the four filings by tech industry associations (in alphabetical order--ACT | The App Association, CCIA, Fair Standards Alliance, and High Tech Inventors Alliance):
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