Ninth Circuit schedules oral argument in FTC v. Qualcomm for February 13, 2020 (San Francisco)

The United States Court of Appeals for the Ninth Circuit will hear oral argument from appellant Qualcomm and appellee the Federal Trade Commission (FTC) in the antitrust matter originating from the Northern District of California on Thursday, February 13, 2020, at 9:30 AM Pacific Time.

The court's website does not yet list the circuit judges on the panel. In this case, the composition of the panel will play a far greater role than in most antitrust cases as Qualcomm has managed, through lobbying and PR and with help from its former lawyer and forever-loyal supporter Makan "Macomm" Delrahim (Antitrust Assistant Attorney General), to politicize a case that actually raises business issues without any ideological dimension.

The FTC filed its answering brief to Qualcomm's appeal the week before Thanksgiving:

• FTC seeks to defend chip-level licensing part of Qualcomm antitrust ruling with right-for-the-wrong-reasons strategy

• FTC to Ninth Circuit: Qualcomm "abandoned" national security argument by failing to introduce evidence

• FTC leverages its assets against Qualcomm's appeal: "strikingly consistent" industry testimony, Qualcomm's own documents, heightened deference to witness credibility findings

While the FTC's consistent efforts to enforce the antitrust laws have lately been described as a "lonely battle with Qualcomm" in light of Qualcomm's settlement with Apple earlier this year, the FTC received broadbased and sophisticated support last week from a wide range of stakeholders (several of whom are affiliated with the GOP--such as former Reagan and Bush 43 Administration officials--while others are on the liberal side of the political spectrum):

• In filing with Ninth Circuit, Intel draws analogy between Qualcomm's business model and Dr. Frankenstein's monster

• Four IT industry bodies support FTC against Qualcomm's appeal: once again, The Industry v. Qualcomm

• Former Secretary of Homeland Security, former FTC chairman, and conservative think tank dismiss Qualcomm's and DOJ's "national security" arguments

• Antitrust think tanks urge Ninth Circuit to affirm Judge Koh's FTC v. Qualcomm ruling

• 40 law and economics professors supporting FTC against Qualcomm's appeal contradict themselves just two pages apart

• The Association of Global Automakers and the Alliance of Automobile Manufacturers also filed an amicus curiae brief (Scribd), as did Tier 1 automotive suppliers Conntinental and Denso (Scribd). I will write about those automotive briefs as well (as my readers know, I am keeping an eye on standard-essential patent assertions against car makers and, by extension, their suppliers), but already wanted to provide the links to the documents. There'll be a couple of "auto patents" stories this week and next.

Qualcomm will file its reply brief in a couple of weeks.

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