In response to Qualcomm's motion to stay FTC's antitrust remedies, industry body says DOJ antitrust chief has "aspirational policy positions"

Over the course of the last 14 months, U.S. Antitrust AAG (Assistant Attorney General) Makan Delrahim has been mentioned here on half a dozen occasions, most of which were directly--and some of them at least indirectly--related to his tireless advoacy on his former client Qualcomm's behalf (1, 2, 3, 4, 5, and 6). In the second one of those posts, I quoted an article (PDF) according to which Mr. Delrahim's positions "lack legal support" and are simply "out of sync with a large and growing body of US case law" on such issues as injunctive relief and FRAND royalty rates.

In an amicus curiae brief filed last week to support the FTC's opposition to Qualcomm's motion to stay the enforcement of antitrust remedies, ACT | The App Association described that lack of legal support and desynchronization with case law as follows:

"[...] Mr. Delrahim expressly desires to change Supreme Court precedent, whereas the district court and this Court are required to apply existing law. Notably, AG Barr, in sworn testimony to the FTC, has also voiced views and 'theories' contrary to Mr. Delrahim's aspirational policy positions." (emphasis in original)

That's a diplomatic way of saying that the man who is often referred to as "U.S. antitrust chief" (though the Federal Trade Commission is safely outside his sphere of influence, which is why he's resorting to amicus briefs) has an agenda of swimming against the judicial tide in the FRAND/SEP context.

Not only is Mr. Delrahim at loggerheads with the case law but most industry players disagree with him. ACT says in its filing that "[t]he companies and associations that have joined [ACT | The App Association] in efforts to curtail SEP abuses represent over $100B annually in R&D spending across a range of industries, own hundreds of thousands of patents (including SEPs), employ 50 million+ Americans, and contribute trillions of dollars to annual U.S. GDP." (emphasis in original)

As to Mr. Delrahim allegedly "expressly desir[ing] to change Supreme Court precedent," I've looked up the speech ACT is referring to. What he said is a bit more nuanced. He argued that the Supreme Court "has not yet commented on [a particular] issue," though he did concede that "[i]n a handful of cases, the U.S. Supreme Court has recognized that there can be antitrust liability for collusive activity that manipulates the standard-setting process to gain an advantage over rivals," and "recognizes that concerted action among implementers or innovators at the same level of the supply chain could constitute an antitrust violation." But, in general, ACT is right that Mr. Delrahim's approach to SEP-related legal questions is that he'd rather make new law than just live with the existing one.

Not only in this context but generally speaking, the ACT's filing complement and reinforces the FTC's opposition brief to Qualcomm's motion, lodged with the Ninth Circuit after an endeavor to the same end failed in Judge Koh's court, for an enforcement stay. Where the FTC stays true to its low-key tone, the ACT is far more combative and directly points the appeals courts to some striking contradiction and inconsistencies between what Qualcomm and its amicis are saying now and what Qualcomm has said and done before, including that "[Qualcomm] even sued a rival chipmaker for breach of FRAND based on the rival's refusal to license [Qualcomm]." (emphasis in original) The ACT brief also notes that Qualcomm Technology Licensing's current president, Alex Rogers, said the following more than a decade ago (he was a vice president at the time): "Saying [Qualcomm] refuse[s] to license competitors is like saying McDonald's refuses to sell hamburgers [...] It's nuts. It's crazy."

With respect to the public interest, Qualcomm's allegations of irreparable harm, and the strategic interests of an amicus like Ericsson, the ACT brief is direct and forceful where the FTC is rather low-key. When it comes to the merits, however, the FTC's brief does a really great job defending Judge Lucy H. Koh's ruling. In a recent post I already took the position that it doesn't make sense that a refusal to deal can only constitute an antitrust violation if it's bad for short-term profitability. The FTC cites to a Third Circuit decision, ZF Meritor LLC v. Eaton Corporation, that explains this very well. Let me quote that one more extensively than the FTC (facing page limits) did, but not without pointing out that the specific context here was exclusive dealing, which is also an issue in the FTC v. Qualcomm case but not relevant to the motion for an enforcement stay:

"Although the Supreme Court has created a safe harbor for above-cost discounting, it has not established a per se rule of non-liability under the antitrust laws for all contractual practices that involve above-cost pricing. See Cascade Health Solutions v. PeaceHealth, [...] (9th Cir. 2007) (stating that the Supreme Court's predatory pricing decisions have not 'go[ne] so far as to hold that in every case in which a plaintiff challenges low prices as exclusionary conduct[,] the plaintiff must prove that those prices were below cost'). Nothing in the case law suggests, nor would it be sound policy to hold, that above-cost prices render an otherwise unlawful exclusive dealing agreement lawful. We decline to impose such an unduly simplistic and mechanical rule because to do so would place a significant portion of anticompetitive conduct outside the reach of the antitrust laws without adequate justification.

"'[T]he means of illicit exclusion, like the means of legitimate competition, are myriad.' Microsoft, [...] ('Anticompetitive conduct can come in too many different forms, and is too dependent on context, for any court or commentator ever to have enumerated all the varieties.') [...]"

Qualcomm has the right to file an optional reply brief, and I guess it will. At that point, or on some other occasion should there surprisingly be no reply brief, I'll go into more detail on some of the theories. Below please find the FTC filing as well as the ACT's high-energy and high-value amicus brief:

19-07-18 FTC Opposition to ... by Florian Mueller on Scribd

19-07-19 ACT the App Associ... by Florian Mueller on Scribd

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Qualcomm elaborates on its theories of irreparable harm from immediate enforcement of FTC's antitrust remedies

Originally, Qualcomm asked Judge Lucy H. Koh of the United States District Court for the Northern District of California to set an extremely tight briefing schedule for the San Diego chipmaker's motion to stay the enforcement of the victorious Federal Trade Commission's antitrust remedies pending an appeal to the Ninth Circuit. If the court had adopted that schedule, Qualcomm would even have been prepared to waive its right to file a reply brief in a support of its motion.

But Judge Koh declined to give the FTC only a very few days for its opposition filing--and Qualcomm, though it still could have waived its right to file a reply brief, elected to file a reply brief yesterday (not a single day before the deadline) and counter not only what the FTC wrote but also the amicus curiae briefs submitted by LG Electronics and ACT | The App Association (this post continues below the document):

19-06-18 Qualcomm Reply Iso... by on Scribd

That reply brief is far more interesting--because it is a lot more specific especially on the question of irreparable harm--than the original motion. While I would categorize some of Qualcomm's reply arguments as non sequitur material and consider some others outright smokescreens, that reply brief does contain food for thought.

The first footnote is, however, almost a concession that a stay of the entirety of the FTC's remedies may have been too much to ask for:

"Should the Court determine that the irreparable harm Qualcomm would suffer as a result of provisions (1) and (2) of the injunction does not warrant a stay of the entire Order, Qualcomm respectfully submits that the Court should enter a partial stay of only provisions (1) and (2) of the injunction."

Accordingly, the reply brief focuses on the requirements to (re)negotiate agreements, to sell chips to unlicensed customers, and to extend exhaustive SEP licenses to rival chipset makers. Those requirements flow from the first two provisions of the injunction the FTC secured--the only ones with respect to which Qualcomm, according to the FTC and also in my observation, even attempted to make an irreparable-harm argument in its original motion.

As for any potentially renegotiated license agreements, Qualcomm insists that any harm could not be undone should Qualcomm prevail on appeal. Qualcomm labels as a "red herring" the FTC's argument that Qualcomm would still obtain "fair value" for its SEPs. Qualcomm says the problem is not that those new agreements would be negotiated without the well-known "No License-No Chips" kind of leverage, but "because of the need to negotiate in the shadow of an Order that declares—erroneously, in Qualcomm's view—that Qualcomm's typical licensing terms are unreasonable." The latter is, by the way, what I told CNN within less than 24 hours of the ruling.

Qualcomm is concerned about licensees stopping royalty payments "under valid contracts" (though Judge Koh's order obviously serves to invalidate many such agreements), "even if temporarily," and mentions Huawei as an example.

Then Qualcomm attacks the FTC's suggestion that Qualcomm could, after a successful appeal, seek "damages for any past infringement" against those who (at least temporarily) stopped royalty payments. Qualcomm states something indisputable: a license is a defense to an infringement claim as 35 U.S.C. § 271(a), the statutory definition of infringement of a U.S. patent, applies only to those who practice a patented invention "without authority."

Qualcomm is furthermore worried that the non-discrimination provision of its FRAND licensing commitment or "most favored" provisions in some of its license agreements could ultimately drive Qualcomm's royalties to the "lowest common denominator."

Qualcomm, with a declaration by one of its licensing executives (John Han), alleges that it would be impossible to prevent irreparable harm by agreeing only on "short-term or interim licenses" (as the FTC called them) or (again quoting the FTC) "contractual provisions that would mitigate or eliminate any long-term adverse consequences to Qualcomm").

All of that needs to be considered, but none of it is convincing. The appeal will take time, but we're talking about roughly a year. Negotiations, however, also take a fair amount of time. The FTC v. Qualcomm decision doesn't require Qualcomm to accept a specific set of terms within a short time frame lest the company be held in contempt. I believe it just comes down to how much of a risk Qualcomm is willing to take when betting on a successful appeal. If Qualcomm really was sure that it would prevail, then it could insist on contractual provisions that protect its rights, and there would not be any contempt sanctions before the Ninth Circuit decides. And what's practically totally impossible is that Qualcomm could not only be forced to enter into a license agreement on unfavorable terms with a first licensee and that a second licensee would then have enough time to also get a better deal (or an adjustment under a "most favored" clause) before the Ninth Circuit renders a decision. And even if the appeal surprisingly took longer, anything that happens as a result of a decision that is being appealed would hardly serve as a FRAND benchmark in any other litigation. I would expect any other case to simply be stayed in that event.

What Judge Koh could do now is provide some guidance to Qualcomm on what structural options it does have even if a stay is denied (such as that Qualcomm would not act in contempt of the injunction if it insisted on contractual provisions that protect its rights, including retroactive adjustments, in the event of a successful appeal). Maybe Qualcomm is primarily hoping to obtain such clarification while formally moving for a stay.

With a view to LG Electronics, which supports the FTC's opposition to Qualcomm's motion, Qualcomm contradicts LG's description of the state of negotiations between the parties. Qualcomm notes that it "continuously supplied chips to LGE, without any interruption, throughout the negotiations"--but if it intended to do so going forward, the injunction against its "No License-No Chips" tactics wouldn't make a difference. Qualcomm mentions "a written offer to enter into binding FRAND arbitration with LGE to try and resolve the dispute, which included an express guarantee of chip supply during the pendency of the arbitration, but LGE declined that offer." As I've explained on various occasions, including my FTC v. Qualcomm trial coverage, arbitration isn't necessarily fair. Without the right parameters, it can give an extremely unfair advantage to a patent holder making out-of-this-world royalty demands since the licensee can't counterbalance a supra-FRAND royalty demand by proposing a negative royalty.

Qualcomm also argues that a requirement to sell chips to unlicensed OEMs would have profound implications due to patent exhaustion. Qualcomm rejects the FTC's argument that Qualcomm should simply "price[s] its modem chips to reflect the fair value of its patents" (which, by the way, pretty much every other chipset makers does, and even Qualcomm does so in some other business areas than cellular modems). Qualcomm argues that it would either lose chip sales or its ability to fully monetize its SEPs "so long as other chip makers are not licensed and thus do not price into their chip offerings the cost of Qualcomm's patents, this would leave Qualcomm in the untenable position of either charging much more for its chips than do its competitors (and therefore likely losing the sales), or reducing its chip prices so that, once again, they do not reflect the fair value of Qualcomm's patents."

The passage I just quoted may very well be the weakest one in that entire reply brief. If its chipset makers aren't licensed, then this is an apples-to-bananas comparison as device makers (as many of them--and competing chipset makers such as Intel--testified in the FTC litigation) would still have to factor in the cost of licensing Qualcomm's patents.

Finally, and as we all know, Qualcomm dreads the notion of having to extent exhaustive SEP licenses to rival chipset makers. But Qualcomm's argument for a stay of that particular provision comes down to what Judge Koh has already rejected at the merits stage: the question of efficiency of multi-level licensing (licensing cellular SEPs to baseband chipset makers and other patents to device makers) versus component-level licensing. Qualcomm says that neither OEMs nor chipset makers would jump to pay royalties, so there would be disputes over whether certain patents are practiced by particular products or not. Qualcomm describes this as a risk of "obstruction and delay," but that holdout-style argument does not appear to be sufficient to make a case for irreparable harm. Other patent holders face those challenges all the time (as the FTC noted in its opening statement back in January).

In that context, Qualcomm also demands "adjudicative comity" (respect for other jurisdictions) because its settlements with China's NDRC and the Taiwan Fair Trade Commission did not involve a requirement to extend licenses to rival chipset makers. I don't understand the comity issue here: if additional parties get licensed, it doesn't frustrate any policy or decision by other antitrust agencies. If the NDRC or the TFTC settled their cases without such a requirement, why would it hurt them if, say, MediaTek obtained a license as a result of the U.S. FTC case? I can't think of any negative effects on competition in those markets.

Part B of Qualcomm's reply brief addresses the likelihood of success of its appeal, with an emphasis on the need for a court to determine that violations are "likely to reoccur" before the FTC can be granted the injunctive relief it successfully sought here. What is missing here is a proposal for how an antitrust offender in a dynamic market could ever be enjoined from some behavior since the court would always have to set some sort of cutoff date.

Part C, finally, makes a national security-centric public-interest argument, with a particular focus on the decision by the Committee on Foreign Investment in the United States (CFIUS) to block Broadcom's attempted acquisition of Qualcomm. The FTC's position was that the CFIUS decision was unrelated to the behavior at issue in the antitrust case, but Qualcomm points to the CFIUS's position that "[c]hanges to Qualcomm's business model [as a result of an acquisition by Broadcom] would likely negatively impact the core R&D expenditures of national security concern." I tend to agree with Qualcomm that the content of the CFIUS letter is significantly more helpful in the public-interest context of the motion to stay than the FTC acknowledged. However, the CFIUS did not block Broadcom's hostile takeover of Qualcomm in order to enable continuing antitrust violations.

What I found interesting is that, with reference to ACT | The App Association's amicus brief, Qualcomm's reply brief also refers to the European SEP policy debate and, specifically, the two competing CWAs (CEN-CENELEC Workshop Agreements). One of the exhibits attached to Qualcomm's reply brief is CWA1, which Qualcomm and similarly-minded companies support, while there is far broader and stronger support for CWA2.

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Broadbased IoT industry support for CWA2 set of standard-essential patent (SEP) licensing guidelines and best practices

At times, courts are asked to clarify what FRAND (fair, reasonable and non-discriminatory) means for standard-essential patent (SEP) licensing terms. The two most fruitful U.S. cases in this regard have been Microsoft v. Motorola (Judge James L. Robart, Western District of Washington) and FTC v. Qualcomm (Judge Lucy H. Koh, Northern District of California). In the EU, Huawei v. ZTE proved reasonably helpful, though definitely not at a level with the aforementioned U.S. cases.

But besides litigation, policy initiatives as well as efforts by standardization bodies can and do provide orientation. In the U.S., the IEEE has become a particularly important discussion forum, and the arguably most important European guideline-development effort, a workshop under the umbrella of European standard-setting organizations CEN and CENELEC with support from Germany's DIN, has just concluded with the publication of a 51-page "CEN Workshop Agreement" on the "Core Principles and Approaches for Licensing of Standard-Essential Patents" after more than a year of discussions. The official dcoument number is "CWA 95000." The shorter name is "CWA2." Why the number 2? Because there's another set of recommendations by another group of companies, and it advocates pretty much the opposite approach, but it has considerably less support from industry than CWA2.

This is an important time for the publication of such proposed guidelines for different reasons. The industry is transitioning to 5G, and in an Internet of Things world, ever more--and an ever greater diversity of--devices will implement wireless industry standards. Also, a new EU Commission will be appointed this year, and the incoming Commission will have to address SEP licensing principles in different fields of policy-making as well as in competition enforcement.

The Fair Standards Alliance issued a press release on CWA2 this morning. The FSA partnered with ACT | The App Association. ACT already pointed to CWA2 yesterday evening in an amicus brief supporting the FTC against Qualcomm's motion for an enforcement stay. FSA and ACT teamed up with the leading German standard-development body, Deutsches Institut für Normung (DIN), and DIN served as the secretariat for this workshop.

All in all, 56 organizations have already expressed their support for the document, even including some who were not involved in the process but agree with the conclusions. Europe's largest automotive association, ACEA, and IP2Innovate, an industry group whose membership significantly overlaps with that of the FSA and which promotes reasonable patent enforcement policies (unlike the FSA, without focusing on SEPs), also agree with the CWA2 guide. Here are some of the household names among the companies listed in the CWA2 document: Apple, BMW, Cisco, Deutsche Telekom, Renault, Honda, Juniper, Volkswagen, Daimler, Ford, Hitachi, HP, Lenovo, and Toyota. If your company or other organization would also like to throw its weight behind the CWA2 guide, please get in touch with the FSA.

The supporters of CWA2 own and generate many patents, and some of them have actively enforced their intellectual property rights. In other words, they're the opposite of "infringers." But they do understand both sides of the licensing equation, and that's why the recommendations made in the CWA2 document appear reasonably balanced. They don't seek to devalue SEPs, or to enable "holdout" (the act of refusing for an extended period of time to take a license). At the same time, the CWA2 guide promotes principles that greatly reduce the risk of patent holdup (the following summary is consistent with my terminology on this blog, not always identical to the terms used in the CWA2 document):

1. access to injunctions only as a last resort

2. availability of licenses to all comers including chipset makers

3. FRAND valuation based on technical contribution at time of standard-setting, without capturing post-standardization increases in value or collecting percentages of components beyond the smallest salable patent-practicing unit (SSPPU)

4. separate availability of SEP license on FRAND terms without tying this to a license to non-SEPs

5. no overbroad NDAs that would complicate an implementer's evaluation of assertions of essentiality or infringement in the negotiation process

6. no circumvention of FRAND licensing obligations through tranfers ("privateering"); if SEPs are transferred, implementers shouldn't be worse off

Obviously, some patent holders with a particularly strong interest in aggressive monetization don't want any of the above. That's why there's also "CWA1" as I mentioned before. The FSA and ACT expressed their disagreement with the CWA1 approach in an open letter earlier this year. While that letter apparently didn't have the desired effect of creating more balance, it shouldn't be too hard for policy makers (such as the incoming EU Commission) to figure out which of the two sets of recommendations is conducive (CWA2), and which one is detrimental (CWA1), to innovation and competition. That's easy to tell based not only content but also by simply looking at the backers:

• CWA2 already has 56 backers, including some of the most significant technology companies in the worldand especially in Europe, versus the 17 organizations behind CWA1.

• While CWA2's supporters have a rather reasonable track record in patent enforcement, almost a third of CWA1's backers have been on the receiving end of antitrust complaints or antitrust lawsuits: Qualcomm (around the globe), Dolby (see this blog post by a Korean IP law firm), Ericsson (in China), Nokia, and InterDigital, which I sometimes refer to as "InterDigitroll" (they were investigated in China and sued in the U.S.).

Thanks to CWA2, there now is a comprehensive proposal for a FRAND licensing framework on the table that has the support of many large players from the automotive and information and communications technology industries. That document will be referenced on many occasions going forward, in Europe and beyond.

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LG Electronics and industry group support FTC's opposition to Qualcomm's motion to stay enforcement

This is the second part of today's little trilogy of FRAND posts. Like the previous one, it deals with some Qualcomm antitrust litigation pending in the U.S. and involves third-party submissions (amicus curiae briefs).

Yesterday evening, the FTC filed its opposition to Qualcomm's motion to stay the enforcement of antitrust remedies pending its Ninth Circuit appeal. Qualcomm had unsuccessfully moved to shorten time. The FTC's opposition brief argues that the delay requested by Qualcomm "would adversely affect competition at a critical time, just as the cellular industry is transitioning to 5G technology" (this post continues below the document):

19-06-11 FTC Opposition to ... by on Scribd

The legal standard for an enforcement stay has four prongs. Two of them merge into one when the government (as in this case) is the opposing party, as the government itself can't be harmed, so the harm to third parties (consumers or other vendors) and the public interest are then essentially the same type of concern. The other factors are whether the moving party has made a strong showing that it is likely to succeed on the merits and irreparable harm to the moving party.

Obviously, Judge Koh is not going to agree with Qualcomm that the appeal is likely to succeed. That question will become more relevant when Qualcomm takes this motion to the Ninth Circuit after Judge Koh denies the motion in whole or in part.

As for irreparable injury to Qualcomm, the FTC points out that Qualcomm doesn't even attempt to make such a showing with respect to certain provisions such as a prohibition to impose antitrust-related "gag order" (that term doesn't appear in the FTC's filing) clauses on other parties. And to the extent Qualcomm claims there would be irreparable harm, the FTC naturally disagrees. With respect to license agreements Qualcomm would have to negotiate now (absent the stay it seeks) with third parties, the FTC notes that "Qualcomm and its counsel are entirely capable of negotiating (i) short-term or 'interim' licenses and (ii) contractual provisions that would mitigate or eliminate any long-term adverse consequences to Qualcomm of a license agreement concluded during the pendency of its appeal."

I've had some discussions recently, such as with a journalist just yesterday, on whether Qualcomm would be irreparably harmed by having to renegotiate existing agreements. What I've been telling people is that there certainly would be contractual ways to address any such concerns. For an example, a "condition subsequent" could result in the rescission of a new agreement in the event Qualcomm prevails on appeal, and in that case any previously-existing agreements could enter into force and effect again, even retroactively so as to enable Qualcomm to be made whole. Where there's a will, there's a contractual way.

The point that the FTC makes about the viability of short-term interim agreements is an important one. Based on what Qualcomm tells investors, it currently has an interim agreement in place with Huawei--and an amicus curiae brief filed yesterday in support of the FTC's opposition to Qualcomm's motion for an enforcement stay shows that there also is a provisional agreement in place between Qualcomm and LG, which will expire at the end of this month (this post continues below the document):

19-06-11 LG Amicus Brief IS... by on Scribd

LG tells the court about the status of its relationship with Qualcomm and outlines its concerns that an enforcement stay would enable Qualcomm to gain leverage over LG by using some of the very tactics Judge Koh held to be anticompetitive. In December, LG (re)joined the Korean antitrust case against Qualcomm. What makes its amicus brief in Northern California interesting from a cross-jurisdictional perspective is that Qualcomm is at risk of sanctions, even under Korean criminal law, for failing to comply with a KFTC antitrust order (Qualcomm wanted its enforcement to be stayed, but the Korean court said no). Once Judge Koh's order gets enforced in the U.S., there is an increased likelihood of the Korea Fair Trade Commission putting pressure on Qualcomm to comply with the Korean decision as well.

In addition to LG, ACT | The App Association, an industry body with corporate members of different sizes, also supports the FTC against Qualcomm's motion for a stay (this post continues below the document):

19-06-11 ACT Amicus Brief I... by on Scribd

ACT frequently partners with other industry associations to promote FRAND licensing principles. Yesterday's amicus brief notes that ACT, "together with another leading industry association [= the Fair Standards Alliance], [ACT] recently co-sponsored a CEN-CENELEC Workshop bringing together more than fifty small and large industry companies to document Core Principles and Approaches for SEP Licensing, particularly for 5G applications and industries." In a footnote, ACT links to the result of that European effort, the CEN-CENELEC Workshop Agreement 2 ("CWA2"), a document describing "Core Principles and Approaches for Licensing of Standard-Essential Patents." My next post (the third and final one of today's FRAND trilogy) will discuss CWA2.

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ITC judge finds Qualcomm's anti-Intel patent assertion campaign against the public interest: Intel-powered iPhones shouldn't be banned

In what appears to have been the last Final Initial Determination of his career, Administrative Law Judge Thomas B. Pender of the United States International Trade Commission (USITC, or just ITC) has found that Intel-powered iPhones infringe one Qualcomm patent that wasn't proved to be invalid, but also held that Qualcomm should be denied the exclusion order it's seeking from the U.S. trade agency because such a U.S. import ban would be against the public interest (this post continues below the document):

18-09-28 ITC 337-TA-1065 Qu... by on Scribd

A Final Initial Determination is, as the self-contradictory name indicates, not truly final. It's a single judge's position, and subject to review by the Commission, the six-member decision-making body at the top of the trade agency. The truly final decision--which may also be a remand, and which could otherwise be appealed to the Federal Circuit--is presently due January 28, 2019 (PDF).

The above document is not the actual ruling, but a notice of its key results. It will take some time before a public redacted version of the determination itself becomes available and sheds light on the underlying rationale. It's unclear to me why Qualcomm failed to satisfy the technical prong of the ITC's domestic industry requirement. What's no secret is the nature of the public interest concerns in this case:

When the complaint was filed in July 2017, I already expressed skepticism regarding Qualcomm's strategy of targeting only Intel-powered--not Qualcomm-powered--iPhones. While a potential shortage of supply is a major factor in the ITC's analysis, Qualcomm basically traded one issue in for another. By targeting its only major baseband chipset competitor, Qualcomm exposed itself to allegations of anticompetitive behavior, especially since antitrust regulators around the globe had at the time of the complaint already held Qualcomm in violation of competition law because of, among other things, its refusal to grant standard-essential patent (SEP) licenses to Intel.

This issue was raised shortly after the complaint in public-interest statements by Apple, Intel, and two industry bodies (CCIA and ACT).

In the ongoing FTC v. Qualcomm (and, by way of consolidation of a class action into the FTC case, "Quarter-Billion U.S. Smartphone Purchasers v. Qualcomm") litigation, Qualcomm's exclusionary practices regarding Intel and other chipset makers (Samsung is also known to have requested--and to have been denied--a license for its Exynos chipset division) are front and center:

• Qualcomm is fighting tooth and nail against an FTC motion for partial summary judgment that merely seeks to remind Qualcomm of self-imposed licensing obligations.

• After an evidentiary hearing (the ITC equivalent of a trial) was held in this ITC investigation, the aforementioned consumer class plaintiffs asked Judge Lucy Koh for an antisuit (anti-enforcement in this case) injunction so Qualcomm wouldn't get to enforce a hypothetical U.S. import ban against Intel-powered iPhones. Judge Koh denied the motion without prejudice. She appeared sympathetic to the concerns raised, but unconvinced of timing, so she basically suggested that the consumers should try again if Qualcomm actually prevailed on the merits (on a preliminary basis, that has now happened with respect to one of the original six patents), was granted an exclusion order (in order to do so, Qualcomm now has to overcome the ALJ's recommended decision by persuading the Commission to review and modify the determination, which will in any event be appealable to the Federal Circuit), and President Trump didn't veto it. Judge Koh's wait-and-see approach has once again been validated. Anyway, the consumer's antisuit motion also focused on Qualcomm's anti-Intel tactics.

Apple, which based on filings in proceedings before the European Patent Office and the Federal Patent Court of Germany is working closely with Intel to fend off Qualcomm's German patent infringement lawsuits, has also made German courts aware of the fact that all of the devices targeted by Qualcomm's German complaints come with Intel--not Qualcomm-chips in the German market. Whether that antitrust defense will get traction in Germany, where the law of the land is basically that patents entitle their owners to injunctions as a matter of law with exceptions being very few and far between, remains to be seen. But there are parallels between Qualcomm's two ITC complaints explicitly saying that injunctive relief is sought against only Intel-powered iPhones and the German cases that don't say so but practically have the same objective. At this month's Munich trial, counsel for Qualcomm noted that there are some Chinese patent infringement cases that purportedly also target Qualcomm-powered iPhones, and maybe we'll learn more about that at a later procedural stage.

Earlier this month it became known that the Office of Unfair Import Investigations (OUII, often referred to as "the ITC staff"), which participates in many ITC investigations as a neutral party and whose recommendations aren't binding on judges but often adopted by them and, especially, the Commission later on, raised public-interest concerns in the investigation of Qualcomm's second ITC complaint against Apple. Same issue there: targeting only Intel-powered iPhones. Formally those are two separate investigations, and in the first investigation no such recommendation was given, but it may very well have had an impact on ALJ Pender's recommendation regarding remedies, and it will without a doubt bear considerable weight with the Commission in the months ahead.

The ITC rarely finds that the public interest weighs against an import ban, which is the agency's only patent infringement remedy. Normally the institutional interest appears to outweigh the public interest in this regard, but to be fair, public-interest concerns are often also raised without having even remotely as strong a case as Qualcomm's targeting of its only major wireless chipset competitor represents. This blog has often voiced skepticism of public-interest arguments in cases such as Apple v. HTC (where only a dissenting commissioner sided with the Taiwanese Android device maker). Samsung's aggressive SEP assertions against Apple did raise a serious issue, but it took a presidential veto for the public interest to prevail.

I actually think it is in the ITC's institutional interest not to allow abse of its Section 337 proceedings for anticompetitive purposes. Lawmakers on Capitol Hill have repeatedly (here's an example) expressed concern over the way the agency basically offers complainants an end-run around the eBay v. MercExchange injunction standard. If the ITC doesn't proceed with some degree of caution, legislative intervention may occur--and in that case it's not unlikely that the ITC would have to respect the eBay standard in the future...

Finally, I hope none of my readers are disappointed that it took me until the next day to comment on this Final Initial Determination, though I usually try to report sooner on major decisions, especially scheduled ones. Reuters and Bloomberg reported on the ITC ruling at about the time I commented on the certification of that huge class of plaintiffs. However, the relevant notice had not appeared yet on the docket of investigation 337-TA-1065. It did so only hours later, at a time (7:49 PM Eastern) when I had already given up on it for the day:

I don't know whether the ITC itself gives major news agency reporters a heads-up or whether Apple (which already provided a quote to the agencies) received it beforehand. I do understand that Bloomberg and Reuters receive preferential treatment, and this blog hasn't always been nice to Apple to be honest (I just agree with them on select issues such as standard-essential patents, minus their lawyers' occasional hyperbole), but I believe the ITC should ensure that all of us have the same access to such a notice that contains no confidential information whatsoever...

[Update] It could be that a time zone issue (1:49 PM Eastern being 7:49 PM Central European Time) prevented me from accessing the notice earlier. I just had a Twittersation with the CCIA's Josh Landau about it and will contact the ITC's technical support. [/Update]

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Industry bodies support FTC's motion to require Qualcomm to license SEPs to rival chipset makers

It's a busy September on the FRAND front...

As I reported on the first of the month, the Federal Trade Commission brought a motion for partial summary judgment that may open up the wireless chipset market--by reminding Qualcomm of its self-imposed obligation to license rival chipset makers--even prior to the big antitrust trial in the Northern District of California.

It's odd that a mere reminder would be a potential game-changer, but that's the way it is because of Qualcomm's refusal to live up to the FRAND promise.

The strategic significance of the motion is underscored by an amicus curiae brief that two industry associations--ACT | The App Association and the Computer & Communications Industry Association (CCIA)--have asked Judge Lucy Koh to allow them to file (this post continues below the document):

18-09-17 ACT App Association & CCIA Amicus Brief by Florian Mueller on Scribd

The later the stage of proceeding, the more common it is for stakeholders to chime in. The summary judgment stage is definitely not where this typically happens. But the FTC's motion is special.

Also, I can't remember having seen a joint filing by those two organizations before.

There's a Mannheim trial today, so for logistical reasons I lack the time to comment on the brief in detail, but I did want to raise awareness. It's a good read, and if you do look at the PDF, please pay attention to what footnote 14 says about Europe (where a major wireless standard-setting organization, ETSI, is based) and Korea; and footnote 16, which quotes public statements by Qualcomm.

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Public-interest statements by Apple, Intel, CCIA and ACT oppose Qualcomm's ITC complaint

Earlier this month, Qualcomm filed an ITC complaint in pursuit of a U.S. import ban against Apple's iPhones (except for iPhones coming with a Qualcomm baseband chipset). Last week, Apple, Intel and two industries groups (CCIA and ACT) filed public-interest statements seeking to dissuade the U.S. trade agency from granting Qualcomm its requested relief and proposing, at a minimum, that the public-interest aspects of this case be referred to an Administrative Law Judge.

An outright decision by the ITC not to investigate Qualcomm's complaint would be unusual and I wouldn't bet on this happening, but in this particular case there are reasons for which Qualcomm would probably be denied an import ban at the end of the proceedings even if it prevailed on the merits (if it came to worst, by a presidential veto).

Here are links to the different stakeholders' statements:

• Apple

• Intel

• CCIA (also, a press release)

• ACT | The App Association

Qualcomm's decision to request an import ban that would force Apple to sell only Qualcomm-powered iPhones in the U.S. has raised huge concerns. It's a transparent attempt by Qualcomm to get rid of its only major competitor, Intel. With all that's going on in terms of antitrust investigations and lawsuits, such as the Federal Trade Commission's progress in the Northern District of California, the ITC will (either now or at a laters stage) have to give serious consideration to the competition issues surrounding Qualcomm's complaint.

The following passage from Intel's statement describes the market landscape:

"When it comes to cellular phones and tablets, Qualcomm's anticompetitive tactics have meant that consumers who wish to purchase a premium product that operates on the LTE network have few choices but to buy a Qualcomm modem—the only real alternatives are the latest Apple handsets with Intel modems, and a modest number of Samsung handsets and tablets using Samsung's own modems."

That doesn't sound like healthy competition...

As I've stated on previous occasions, while I am an app developer (next week we'll start out final beta test with many new testers invited every day), I don't necessarily feel that ACT represents me (a non-member anyway) on all policy issues (nor does any other organization). But when they do, I say so, and they do speak for me when they point out the following in their public-interest statement:

"Thousands of our members reach their customers through the ubiquitous mobile communications devices manufactured by Apple which are the articles at issue in the complaint at hand. App Association members rely on a competitive environment in the information and communications technology hardware space, without which our members would have no means to provide countless Americans (both in the consumer and enterprise context) with new and innovative software products and services that require an increasing amount of bandwidth and computing power."

Finally, it's worth noting that CCIA (the Computer & Communications Industry Association) has frequently filed amicus briefs and other submissions adverse to Apple's interests, but with respect to Qualcomm's complaint, even CCIA (which counts various fierce Apple competitors among its members) is on Apple's side.

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Major automotive and IT companies urge President Trump to support FTC case against Qualcomm

I just received--and wanted to immediately share--an open letter addressed by major automotive and information and communications technology companies to President Donald J. Trump, urging him to shield the Federal Trade Commission (FTC) from political interference that could derail the ongoing antitrust litigation in the Northern District of California against Qualcomm (this post continues below the document):

17-04-20 Multi-Stakeholder SEP White House Letter by Florian Mueller on Scribd

The letter was signed by two industry associations--ACT | The App Association (whose sponsor members include Apple, Microsoft, Oracle, Facebook, AT&T and others) and the Alliance of Automobile Manufacturers--as well as ten companies including, notably, HP, Dell, Intel, Juniper, and--lo and behold--Samsung Electronics America, Inc.

Samsung's participation is particularly interesting. I was probably the most Samsung-critical blogger when I believed Samsung was trying to gain too much leverage from its own standard-essential patents (SEP) against Apple in multiple jurisdictions, but I was and (despite my intent to be a good citizen of the iOS ecosystem as I plan to launch my first app in a couple of months) still am among the most Apple-critical ones with respect to the merits and especially the requested remedies over certain design and software patents. It was a good thing that Samsung abandoned its SEP claims against Apple, but it wasn't enough. After Samsung stopped doing the wrong thing, I always wanted it to do the right thing and combat SEP abuse. Its support of an industry coalition in Europe (relating to the future Unified Patent Court) was a first significant step. I'm so happy to see that Samsung is now more proactive on that front than ever.

Last year then-candidate Trump publicly declared himself a Samsung user as he was angry with Apple for its lack of cooperation with the FBI in connection with an act of terrorism. Having been a Trump supporter (a fact I have mentioned several times on this blog and as anyone following me on Twitter can tell) since 2015, a Samsung Galaxy user since 2010 and an iPhone user since 2014, I paid attention. Now I hope his advisers, who obviously know about his predilection for Samsung phones, will also tell him about Samsung's signature of this Qualcomm-related open letter.

If the Korean antitrust findings relating to Samsung's Exynos baseband chipset are accurate, and considering that Samsung's margins in the mobile phone business are much tighter than Apple's, Samsung may have suffered from Qualcomm's conduct to an even greater extent than Apple. And while those two companies account for a significant part of this industry, there are many other companies of all sizes that have a problem with Qualcomm's (and some other SEP owners') practices.

The final part of the first paragraph of yesterday's open letter comes across as an expression of huge concern: "we hope that the FTC's lawsuit filed on January 20, 2017 in federal court in California will be allowed to run its course without prejudice or political interference."

Judge Lucy Koh has just set a schedule for that antitrust litigation, and it's a reasonably ambitious one. Apparently there are industry players who see some lobbying going on by Qualcomm and possibly other SEP abusers seeking to derail the FTC lawsuit. There is a political risk here since the FTC filed its case in the last days of the Obama Administration, which I think was a disaster for various other reasons (such as its positioning against law enforcement officers, its irresponsible accumulation of debt, and its refusal to even acknowledge the problem of radical Islamic terrorism), but which despite all else made two really good decisions regarding SEPs: the veto of an ITC import ban and the FTC complaint against Qualcomm. It will be important to explain to the Trump Administration that the FTC case is worth pursuing--they should even double down on it--even if other parts of Obama's legacy are not. Simply put, FRAND is also a conservative cause, and Republican lawmakers have supported it before. Combating SEP abuse is perfectly consistent with the promise to Make America Great Again, as the final paragraph of the letter (without specifically mentioning MAGA) stresses:

"In short, the impartial and substantive determination of an FTC action in a U.S. court is critical to supporting a successful U.S. market and U.S. business environment. Such a process is, in the end, good for the U.S. economy and job market. We encourage the administration to support this robust agency and court process." (emphasis added)

On page 2 of the letter, the signatories note that they "take no position here on the merits of this case," but their concern is not about the merits: it's all about politics.

I wish those companies didn't even see a need to write that kind of letter. It suggests to me that there are some Washington machinations going on that could benefit the abusers and hurt companies that make real products. Such as the direct (for example, Samsung) and indirect (for example, Apple) signatories...

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U.S. tech companies welcome Korean antitrust ruling against Qualcomm over FRAND abuse

South Korea's competition watchdog, the Korea Fair Trade Commission (KFTC), has just imposed a $853 million fine on Qualcomm for "monpolistic" practices involving its patent dealings. In particular, the antitrust agency stated that Qualcomm "has violated its agreement to license patents on fair, reasonable and non-discriminatory (FRAND) terms."

Qualcomm can and will appeal this decision, but the mobile device industry at large is keeping its fingers crossed that Korea's top court will affirm the KFTC ruling. The fact that Qualcomm filed an action in the U.S. in order to get access to information provided by Apple, Samsung and others to Korea's competition authority is interesting. It's hard to imagine that those companies would have told the KFTC "we're OK with what Qualcomm is doing and we're happy to pay even more going forward."

ACT | The App Association (which I'm not a member of, though I am an app developer), a tech industry group headquartered in Washington, DC, has just sent out the following statement that applauds the Korean competition enforcers:

"The Korea Fair Trade Commission (KFTC) has, after an extensive investigation, decided to significantly fine, and impose a corrective order on, Qualcomm Incorporated for systematically violating the commitments the company made to license its standards essential patents under fair, reasonable and non-discriminatory (FRAND) terms. FRAND abuse is an anticompetitive danger that poses a serious threat to the future of mobile computing and the Internet of Things.

Curbing the abuses the KFTC is addressing is an issue we are passionate about. That is why we launched All Things FRAND, an effort committed to ensuring a balance between patent licensor and licensee that FRAND commitments safeguard. And while FRAND promises are important, they are meaningless – and undermine innovation, particularly for small businesses – when ignored during subsequent licensing negotiations. ACT | The App Association applauds the KFTC's decision in this matter, and looks forward to analyzing the details of its corrective order that will contribute to growing global precedent upholding the purpose and meaning of FRAND obligations."

I wish to point out that ACT is generally very IPR owner-friendly, but when it comes to FRAND licensing of standard-essential patents, its positions are pretty consistent with mine. An organization that takes similar positions on FRAND (and of which Google is a member) is the Brussels-based Fair Standards Alliance. Presumably the reason the FSA hasn't spoken out on the Korean ruling yet is simply that people in Brussels tend to be on vacation this week (to a far greater extent than in the U.S.).

Many years ago, the European Commission was taking a look at Qualcomm's practices but failed to take decisive action. Qualcomm currently does face an EU antitrust issue but with a somewhat different focus than the Korean case. I think the Korean regulator has the right set of priorities; maybe the EU Commission will bring additional charges, as it did against Google (more than once). I would also like to see some antitrust inquiry into Qualcomm's practices by the FTC or DoJ under the incoming Trump Administration. President-elect Trump highlighted the uniqueness of America's top innovators at a recent meeting with tech industry CEOs, and I'm optimistic he and his staff will be more sympathetic to the concerns of the likes of Apple, Google and Amazon than to those seeking to extract undue leverage from standard-essential patents.

If anyone would like to provide me with information on Qualcomm's practices and antitrust complaints or cases anywhere in the world, please get in touch via my contact form. I'm very interested in finding out more about this and I'll try to draw more attention to major SEP issues involving Qualcomm or anyone else.

[Update] A reader has kindly pointed me to an unofficial translation (apparently created by Qualcomm itself) of the KFTC press release, which is a highly informative document that warrants further discussion here at a later stage. [/Update]

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HP, Nokia and industry associations write to ITC supporting Apple and Microsoft against Google

Google's (Motorola's) pursuit of U.S. import bans against the iPhone, the iPad and the Xbox over standard-essential patents has large parts of the information and communications technology industry concerned. Simultaneously with the Federal Trade Commission's public interest statement asking the ITC to refrain from outright exclusion orders over standard-essential patents (full text available here), industry leaders including Hewlett-Packard and Nokia as well as influential industry organizations including the Business Software Alliance (BSA), the Retail Industry Leaders Association (RILA) and the Association for Competitive Technology (ACT) have submitted letters that advocate strong intellectual property enforcement but argue at the same time that import bans should not be ordered against implementers of standard-essential patents (SEPs).

Here's an overview of the public interest statements that have shown up on the ITC docket thus far:

• Hewlett-Packard:

  HP filed the same statement in connection with the investigation against Apple as well as the one against Microsoft, asking the ITC to "decline to issue an exclusion order in these investigations":

  "While the Commission has viewed enforcing patent rights as important public interest, these investigations involve unique facts that weigh heavily against (and indeed override) the issuance of an exclusion order in these cases. First, as a participant in a standards-setting body, the complainant previously would have pledged to license the standards-essential patents at issue in these investigations to the respondents on 'fair, reasonable, and non-discriminatory' ('FRAND') terms. Permitting the complainant now to use these patents as a weapon to block the importation of respondents’ products into the United States, merely because they implement the standards at issue, would thwart competition, stifle innovation, and result in higher prices for consumers--thereby causing precisely the harms that Congress directed Section 337 should not inflict."

  HP, which is not a party to any of the current smartphone and tablet computer patent disputes between large players, is a major patent holder. Among other things, it holds a number of wireless patents thanks to its acquisition of Palm and its own R&D efforts.

  In addition to the FRAND issue, HP also points to the ecosystems around Apple's iOS products and Microsoft's Xbox that would be affected.

  HP argues that holders of SEPs should sue in federal court instead of excluding devices from the U.S. market.

• Nokia:

  Nokia's letter in support of Apple is remarkable for several reasons. The companies are competitors. Nokia and Apple were suing each other for almost two years until they settled in June 2011, and part of the dispute was that Nokia wanted to be paid for Apple's use of its SEPs on FRAND terms. Unlike Motorola, Nokia asserted only non-standard-essential patents in its ITC complaint. Very recently, Apple and Nokia disagreed on the next SIM card standard (Apple's proposal was adopted by ETSI, after modifications). On that issue, Nokia was actually on Motorola's (and RIM's), not Apple's, side.

  As a long-standing participant in standard-setting processes overseen by ETSI, Nokia is well aware of the FRAND rules relating to the 3G-essential patents Motorola is trying to enforce against Apple at the ITC. Nokia explains the "FRAND bargain" in detail and sums it up as follows:

  "In return [for contributing IP to a FRAND standard], the patent holder is entitled to FRAND compensation, terms, and conditions from those who implement the standard and practice its essential, valid, and enforceable patents. But where a manufacturer is a willing licensee under such essential patents, the patent holder is not entitled to other remedies -- such as an injunction or an exclusion order -- that would bar implementers from the market. This is the FRAND bargain and obligation."

  Nokia warns against the costs that would result from allowing SEP holders to abuse their rights for the purpose of hold-up.

  Last week, Google filed an EU antitrust complaint against Microsoft and Nokia. In its initial reaction, Nokia said that it didn't understand Google's concern since anyone interested in a FRAND license to its SEPs should simply call and sign up, as dozens of companies already have.

• Verizon:

  Verizon also supports Apple, but it is generally against ITC import bans, whether or not FRAND-pledged SEPs are involved. It also supported Samsung against Apple in a federal lawsuit in California.

• Microsoft supports Apple:

  Microsoft filed a letter in support of Apple. Microsoft faces the same kinds of royalty demands and lawsuits from Motorola.

• Business Software Alliance (BSA):

  The BSA filed letters in both investigations (Apple and Microsoft). The organization's members include: Adobe, Apple, Autodesk, AVEVA, AVG, Bentley Systems, CA Technologies, CNC/Mastercam, Cadence, Compuware, Corel, Dell, Intel, Intuit, McAfee, Microsoft, Minitab, Progress Software, PTC, Quark, Quest Software, Rosetta Stone, Siemens PLM, Dassault Systemes SolidWorks, Sybase, Symantec, and The MathWorks.

  While the BSA is known for a clearly pro-intellectual-property stance and notes that its members "hold hundreds of thousands of patents around the world" and "participate widely in standards-setting organizations", it "believes that the public's interest will be best served if an exclusion order is not issued in this investigation or any other investigation resting on similar facts and circumstances" and concludes:

  "When a patentee makes a commitment to license its technology for FRAND terms during a standard setting process if that technology is made part of the standard, the patentee should be held to its promise. Allowing companies to circumvent their promises by using the Commission's sole remedy of an exclusion order would have a detrimental effect on internationally recognized standards systems. The ultimate result of a less robust standards system will be fewer choices for consumers, higher prices, and diminished innovation. Thus, the public's interest will be best served if an exclusion order is not issued in this investigation or any other investigation resting on similar facts and circumstances."

• Retail Industry Leaders Association (RILA):

  RILA's member companies include some of the world's most well-known retail chains ("more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad").

  RILA's letter "urges the Commission to carefully consider how granting owners of standard-essential patents exclusion orders pursuant to section 337 investigations could undermine the process to license such patents on fair, reasonable and non-discriminatory terms and standard setting more generally". RILA declares itself "a strong supporter of enforceable intellectual property rights" and of the possibility of ITC import bans against infringing goods, but "in the case of standard-essential patents in particular, complainants could transform [Section] 337 exclusion orders from shields into swords, and use the process to undermine the balance between compensation for use of the technology and the public interest that the FRAND regime seeks to achieve".

  According to RILA, "[i]t would be antithetical to the public interest, consumer choice and affordability to permit the use of exclusion orders to force companies selling standard-compliant products to license asserted patents on non-FRAND terms (e.g., artificially high royalties) in order to sell those products in the U.S. market".

• Association for Competitive Technology (ACT):

  While ACT has support from large companies including Microsoft, Oracle and eBay, most of its members are small and medium-sized technology creators.

  ACT advocates strong intellectual property rights in order to protect innovative entities against infringers. In this spirit, ACT also submitted a public interest statement contradicting Google's and HTC's public interest arguments against a ban of Android devices over non-standard-essential patents asserted by Apple.

  ACT's letter stresses the organization's concern for "mobile app" companies. ACT notes that technology standards are "critical for independent app developers and the public", and says its "members are deeply concerned about the impact of an exclusion order in a case where a patent is the subject of a commitment to license on 'Reasonable and Non-Discriminatory' terms as part of a standard". ACT's letter concludes with the following statement:

  "We submit that the public interest should preclude any issuance of an exclusion order for a RAND committed patent. The appropriate remedy for infringement of a patent subject to a RAND commitment is RAND royalties collected in district court."

It's possible that additional public interest statements have been filed, or will be filed, in these investigations. I have just reported on all those that have shown up in the public record by the time I published this post. So far, there hasn't been even one third-party public interest statement in support of Motorola's pursuit of injunctive relief. If I ever see one, I will certainly report on it.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.

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