Friday, September 25, 2020

FTC Files Petition for Rehearing En Banc in Qualcomm

Here is the petition.  I just started reading it myself, may have more to say about it later today or next week.

Update:  Very briefly, here are the highlights:

1. The FTC argues that the panel decision "conflicts with Supreme Court precedent on three questions of
exceptional importance to the Nation’s antitrust laws," namely: (1) in holding that "Qualcomm's surcharge is shielded from antitrust scrutiny because Qualcomm labels it a 'patent royalty'"; (2) in holding "that a facially 'neutral' fee . . . 'by definition' cannot harm competition"; and (3) by dismissing "as irrelevant Judge Koh's extensive findings about harm to 'Qualcomm's customers' because such harm is purportedly 'outside the relevant antitrust markets'" (pp. 2-3).  Throughout the petition, the FTC argues that the panel decision elevated form over substance.

2.  The FTC is not seeking rehearing with regard to the portion of the panel decision that "reversed Judge Koh's holding that Qualcomm's refusal to license its patents to rival chipmakers violated Section 2 of the Sherman Act" (p.9 n.5).

3. "Because of space constraints and Rule 35 requirements, this petition does not address other errors in the panel opinion. To identify just two examples: It is blackletter law that only a private plaintiff, and not the FTC, is required to establish 'causal antitrust injury' in addition to a violation of the Sherman Act. OP25; see California v. Am. Stores Co., 495 U.S. 271, 295-96 (1990). It is likewise 'well settled' that the FTC is entitled to injunctive relief even if a defendant’s unlawful conduct has ended, so long as 'there is a possibility of recurrence.' FTC v. Affordable Media, LLC, 179 F.3d 1228, 1237 (9th Cir. 1999). But see OP55 (asserting that an injunction is generally unavailable when the FTC challenges 'past wrongs')" (p.18 n.7).

Florian Mueller also has a write-up on FOSS Patents.  For my own short piece on the panel decision, published earlier this month, see here.

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