Qualcomm: The antitrust nightmare continues - this time at home with the FTC as part of a last-minute lawsuit before the new administration takes over.
My former employer, Qualcomm, has had a difficult last few years regarding antitrust issues. Starting with China in December 2013, the San Diego-based telecom and semiconductor giant has faced numerous governmental investigations regarding its licensing business. After China, came South Korea (February 2015), Taiwan and the European Union (December 2015), and now the good ol' USA launching antitrust investigations.
The FTC complaint filed yesterday, Tuesday, January 17 makes three allegations against Qualcomm:
Qualcomm has posted on its website a response to the FTC complaint which states that "Qualcomm believes the complaint is based on a flawed legal theory, a lack of economic support and significant misconceptions about the mobile technology industry. The complaint seeks to advance the interests and bargaining power of companies that have generated billions in profit from sales of products made possible by the fundamental 3G and 4G cellular technology developed by innovators like Qualcomm."
Perhaps most interesting is the fact that the FTC complaint may be politically motivated. FTC Commissioner Maureen Ohlhausen, who voted against the filing, explained in what she notes is a rare dissenting statement that the Commission’s 2-1 decision to sue Qualcomm is “an enforcement action based on a flawed legal theory that "lacks economic and evidentiary support, that was brought on the eve of a new presidential administration, and that, by its mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide.” Despite an appeal from members of Congress to refrain from “midnight litigation” with newly created theories that could damage innovation in the U.S., the FTC accelerated the investigation of Qualcomm and directed the filing of the complaint just days before the change of the Administration though only three of five FTC commissioners are in place.
Importantly, the complaint does not allege that Qualcomm charges above fair and reasonable royalties, but rather asserts that Qualcomm held back its IP from competitors and suppliers in an illegal manner. However, the company states that the FTC is incorrect as Qualcomm has never withheld or threatened to withhold chip supply in order to obtain agreement to unfair or unreasonable licensing terms.
I do not have a dog in this fight, but on first glance this appears on its face to be another of a long line of steps the Obama Administration has taken to undermine patent rights. This is great for my practice in China as innovators are chases from the US to Asia, but it saddens me as an American. Stay tuned as we learn more.
Welcome to the China Patent Blog by Erick Robinson. Erick Robinson's China Patent Blog discusses China's patent system and China's surprisingly effective procedures for enforcing patents. China is leading the world in growth in many areas. Patents are among them. So come along with Erick Robinson while he provides a map to the complicated and mysterious world of patents and patent litigation in China.
Erick Robinson is an experienced American trial lawyer and U.S. patent attorney formerly based in Beijing and now based in Texas. He is a Patent Litigation Partner and Co-Chair of the Intellectual Property Practice at Spencer Fane LLP, where he manages patent litigation, licensing, and prosecution in China and the US.
The ideas and opinions at ChinaPatentBlog.com are my own as of the time of posting, have not been vetted with my firm or its clients, and do not necessarily represent the positions of the firm, its lawyers, or any of its clients. None of these posts is intended as legal advice and if you need a lawyer, you should hire one. Nothing in this blog creates an attorney-client relationship. If you make a comment on the post, the comment will become public and beyond your control to change or remove it.