1. Erik Hovenkamp has posted an essay titled FTC v. Qualcomm: New Frontiers in the Antitrust-IP Interface, forthcoming in Regulatory Review, on ssrn. Here is a link, and here is the abstract:
The Federal Trade Commission recently scored a substantial victory in its antitrust suit against Qualcomm. The case represents a novel confluence of standard-setting and IP licensing issues with bedrock antitrust subjects: tying and exclusive dealing. It also takes a surprising turn in resuscitating the long-dormant doctrine of the antitrust “duty to deal.” In this short essay, I review and evaluate the court’s decision in FTC v. Qualcomm. The analysis of Qualcomm’s exclusive dealing is sound and very likely correct. However, the court’s duty-to-deal analysis sits on shakier ground, omitting consideration of potential immunity under the Patent Act and sidestepping thorny questions on the appropriate source of law.
2. For a decidedly different view of the case, see, e.g., Jonathan Barnett's post titled Qualcomm ruling a case of antitrust gone wrong on The Hill; James Edwards's post titled Restoring IP Rights After the Destructive, Unjust Antitrust Rendering in FTC v. Qualcomm, on IP Watchdog; Richard Epstein's post Judge Koh Is No 5G Wiz, on Defining Ideas: A Hoover Institution Journal; and Adam Mossoff's post on the Federalist Society Blog titled An Unprecedented Conflict Between the FTC and DOJ at the Intersection of Antitrust and Patent Law.
3. Amy Gallegos and Julia Kim Hirata published an expert analysis on Law360 titled Cooperating With Competitors In The Wake Of Qualcomm. The article concludes with five takeaways for attorneys advising clients on how to avoid liability for refusing to deal.
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