Posts in Antitrust

Even at ground level, where American courts in San Diego and San Jose are now being called on to apply the law laid out in prior court decisions to the particular facts of the smartphone chip market, the multipronged attack on Qualcomm’s patent licensing practices offers an unusually rich platter of meaty issues to feast upon for those who advise patent licensors and licensees. Leaving aside the implications for the smartphone industry and the market for cellular baseband processors that Qualcomm now dominates, the new precedents that will be set in court—if the parties don’t settle or a Republican-controlled FTC doesn’t withdraw its case—will have broad and deep implications for patent owners and users—much as the US v. Microsoft case has had since it was decided almost two decades ago.

On Monday, September 4th, a South Korean court denied a request made by San Diego, CA-based semiconductor developer Qualcomm Inc. to rescind a fine levied last December by the Korea Fair Trade Commission (KFTC) over alleged unfair business activities in patent licensing and chip sales. According to reports, the South Korean court decision keeps in place a $912 million in the latest blow to Qualcomm’s corporate intellectual property strategy.

On Tuesday, August 8th, the U.S. International Trade Commission (ITC) announced that it was opening up an investigation on claims that Cupertino, CA-based consumer electronics behemoth Apple Inc. (NASDAQ:AAPL) is infringing upon patented technologies, specifically baseband processor modems, in its mobile electronic devices. The investigation follows a Section 337 patent infringement complaint filed on July 7th with the ITC by…

Why does U.S. policy with respect to patent owners and patent licensing seem to be in direct opposition to U.S. antitrust policy relating to vertical mergers? If vertical mergers are anticompetitive and particularly bad when dealing with a monopolist then why are patent owners, who we are told over and over again are in possession of a limited monopoly, encouraged (if not demanded) to vertically integrate in order to escape characterization as a patent troll?

The Qualcomm complaint alleges Section 337 violations of patent infringement caused by the importation and sale of certain mobile electronic devices and radio frequency and processing components facilitated by Cupertino, CA-based consumer mobile electronics giant Apple, Inc… “Qualcomm’s inventions are at the heart of every iPhone and extend well beyond modem technologies or cellular standards,” Dan Rosenberg, executive VP and general counsel at Qualcomm, is quoted as saying. “The patents we are asserting represent six important technologies, out of a portfolio of thousands, and each is vital to iPhone functions.”

Like Lexmark, many technology companies rely on aftermarket revenue streams to fund ongoing investments in research and development needed to remain competitive in hotly contested technology markets. This model is prevalent in the software industry, where customers pay ongoing fees for software support, and in other industries in which manufacturers that sell durable goods offer aftermarket maintenance or service contracts… Without post-sale patent rights, Lexmark and others will need to alter their razors-and-razor-blades business models or adopt different strategies to safeguard the aftermarket revenue upon which they rely to remain competitive in fast-paced technology markets. Contract rights provide one avenue to protect aftermarket revenues, but companies that take this approach should proceed with caution to avoid antitrust liability.

At the same time that America’s business climate has become too acidic for a vast majority of domestic startups, the nation has also been losing its place in the global supply chain while other major global economies, like China’s, are becoming increasingly self-reliant… This report identifies trending emerging tech like virtual reality, augmented reality, machine learning, smart robots, gesture control devices, smart data discovery and virtual personal assistants, as well as consumer expectation levels and the length of time until the emerging tech becomes fully commercializable. As Aronoff noted, much of the innovation in those sectors relies on software. “Is that even protectable anymore?” Aronoff asked… With the new patent enforcement gauntlet in the U.S., what does it really take for a small company to protect its IP in the current system?

Qualcomm accused Apple of engaging in tortious interference relating to Qualcomm’s licensing activities with Apple’s contract manufacturers. Specifically, Qualcomm asserts that Apple pressured contract manufacturers to withhold licensing payments they would normally have made to Qualcomm. Apple has allegedly also pressured contract manufacturers to refuse to comply with Qualcomm auditing procedures, leading to Qualcomm’s inability to verify the accuracy of royalty reports… Qualcomm also notes that its licensing activities with Apple’s contract manufacturers go back years before Apple sold its first cell phone in 2007, as early as February 2000 in the case of Taiwanese firm Compal Electronics. Qualcomm asserts that its licensing agreements with the contract manufacturers were consistent with policies set out by the European Telecommunications Standards Institute (ETSI).

The U.S. Federal Trade Commission (FTC) will not be radically changing the analysis used to address antitrust issues presented by patent law issues. The news stems from comments made by FTC acting chairman Maureen K. Ohlhausen at the 32nd Annual Intellectual Property Law Conference sponsored by the American Bar Association (ABA). Ohlhausen would go on to explain that the recent updates to the IP Licensing Guidelines, which occurred in January 2017, were “modest”, provided the FTC with flexibility, and continue to recognize that “IP law grants enforceable rights.”

This different approach—a commercialization approach—has been embraced across the American political spectrum, including both the Carter administration and the Reagan administration,[4] as well as by celebrated jurists of the last century coming from diverse philosophical perspectives, including Circuit Judges Learned Hand, Jerome Frank, and Giles Rich,[5] who saw it as important to helping the economy and society.[6] The roots of a commercialization approach to patents, in particular, reach back even further into American history, including Abraham Lincoln’s view that the patent system “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”[7] Its study has also long extended far beyond our nation… A commercialization approach to IP views IP more in the tradition of private law, rather than public law. It does so by placing greater emphasis on viewing IP as property rights, which in turn is accomplished by greater reliance on interactions among private parties over or around those property rights, including via contracts.

Google tries to strike a “patent peace” with a new cross-licensing initiative for Android developers. The Federal Circuit is petitioned for review of a judgment in a patent case on the grounds that arbitration flouted public policy. A couple of Texas academic institutions square off in a patent battle over cancer treatments. Also, a House bill moves forward which would make the Register of Copyrights a Presidential appointee.

These government agencies target successful, inventive U.S. firms. They politicize their processes and disregard the exclusivity that rightfully belongs to patent owners. They take away private property from the creators and give it to favored domestic companies like Samsung and Huawei, which apparently lack the smarts to win fair and square in market-based competition or by ingenuity. It’s time that America put an end to these threats, foreign and domestic. Either you believe in property rights and free enterprise or you don’t… In essence, Chinese, South Korean and FTC officials demand the benefits produced by free markets and property rights for free from American innovators in mobile technology, who took all the risk and made investments in research and development.

On March 3rd, Swedish telecommunications company Ericsson publicly announced its fair, reasonable and non-discriminatory (FRAND) terms and conditions for the licensing of standard essential patents (SEPs) for 5th Generation New Radio (5G/NR) as standardized by the 3rd Generation Partnership Project (3GPP). The decision to announce these terms publicly may be an indication that Ericsson is looking to avoid the fate of other mobile wireless chip makers, which have come under fire in recent months for their own licensing practices.

On January 23rd, the Federal Trade Commission (FTC) announced that it had taken steps to resolve antitrust charges involving business activities employed by Irish/U.S. drugmaker Endo International (NASDAQ:ENDP) designed to delay the entry of generic pain medications into the U.S. to preserve monopoly profits. The FTC filed a complaint for injunctive relief and a motion for entry of stipulated order for permanent injunction against Endo and others in the U.S. District Court for the Northern District of California (N.D. Cal.). These actions revive charges from a lawsuit filed by the FTC last March against Endo involving pay-for-delay patent settlements.

On the menu this week for Other Barks & Bites, the Supreme Court hears oral arguments in a case challenging the Lanham Act’s disparagement provision, a six-figure damages verdict goes in favor of former USPTO Deputy Director Russell Slifer, a TTAB petition is filed to challenge the trademark application for an NFL franchise currently in the relocation process, an announcement by a Japanese academic-industry research project that claims to have doubled the effectiveness of solar cell panel conversion rates, the FTC takes action against a pharmaceutical company and much more.