Wednesday, February 12, 2020

Qualcomm Oral Argument Tomorrow

Oral argument in FTC v. Qualcomm takes place tomorrow, February 13, in Room 307 of the James R. Browning U.S. Courthouse in San Francisco.  According to the court's website, each side has only 20 minutes to argue (so I guess the DOJ will get five minutes of Qualcomm's time?), which isn't much for a matter of this complexity.  I imagine the matter will be principally decided on the briefs, which is usually the case anyway.  Here's an article in today's Law360 about the argument; it quotes me, among others, on what to expect.

Meanwhile, Erik Hovenkamp and Tim Simcoe have posted an interesting paper on ssrn titled Tying and Exclusion in FRAND Licensing: Evaluating Qualcomm, which is also forthcoming in the Antitrust Source.  Here is a link, and here is the abstract:
In an enforcement action brought by the Federal Trade Commission, a district court recently found that Qualcomm violated the antitrust laws by engaging in anticompetitive exclusive dealing and refusing to license its standard-essential patents (SEPs) to rivals. In this article, we unpack and evaluate three aspects of the Qualcomm decision. First, we describe how the tying relationship between chips and licenses goes primarily in the opposite direction of how most commentators characterize it. Second, we consider how Qualcomm’s commitments to license its SEPs on “fair, reasonable, and nondiscriminatory” (FRAND) terms bear on the antitrust analysis. Third, we discuss how FRAND might have been used to better justify finding an antitrust duty-to-deal with competitors.

Update:  It appears that the Ninth Circuit offers live video streaming of oral arguments.  Link here

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