Saturday, February 8, 2020

Conservative majority of Ninth Circuit panel might favor Qualcomm over FTC

Last year's trial was a disaster for Qualcomm, with its own witnesses (including the experts) not having much credibility while the FTC put on what appeared to be a very strong case. However, at the appellate stage Qualcomm may benefit from a focus on specific legal questions. I guess we're going to see a mixed ruling.

Meanwhile, the panel for next Thursday's Ninth Circuit hearing has become known:

The worst-case scenario for Qualcomm would have been a panel with a liberal majority (and especially if one or more judges had been Obama appointees). That's definitely not the case here.

At the other end of the spectrum, there would have been a majority of Trump appointees, who might have been most receptive to the DOJ's Antitrust Division's arguments in support of Qualcomm. That's not the case either.

Judge Murphy III, sitting by designation, may understand the automotive industry's concerns about Qualcomm's refusal to extend exhaustive licenses to component makers fairly well, as the Detroit area is part of the district where he normally works.

But other than that, Qualcomm has more reasons to be happy with the composition of the panel than the FTC does. Come Thursday, we may see the appeals court's inclination.

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