Today, the Ninth Circuit issues an Order that stays Judge Koh’s injunction entered in the FTC v. Qualcomm case in order to maintain the status quo so that the Ninth Circuit can decide whether Judge Koh’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act”, which is not decided by this Order but “is a matter for another day.”

We provide a summary of the ruling below and, as always, recommend reading the 7-page Order for yourself (see link in first sentence above).   The Ninth Circuit has not decided the substantive issues–that will be done on “another day”–but did indicate that Qualcomm had raised meritorious arguments that (1) Qualcomm was not required to license its SEPs to rival chip suppliers and (2) Qualcomm could assess royalties on its SEPs on a per-handset basis (rather than based on modem chip component of the handset).

As far as next steps, the parties and interested amicus on all sides of the issue are preparing briefing on an expedited schedule in preparation for a hearing at the Ninth Circuit in January 2020.
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And the dance has officially begun in the U.S. inter-governmental dispute about applying competition law to the technical standard setting process between the U.S. Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) and we all have an invitation to the brawl.  DOJ filed an Amicus Brief that supports Qualcomm’s request that the Ninth

Yesterday, Judge Koh of the U.S. District Court Northern District of California entered a Judgment following the January 2019 trial based on her Findings of Fact and Conclusions of Law that Qualcomm violated the Federal Trade Commission Act.  This is a lengthy, 233 page decision and we will provide a summary soon, but provide now

Last week, the U.S. Federal Trade Commission (FTC) Staff filed a response that attacks the U.S. Department of Justice (DOJ) Statement of Interest in the FTC v. Qualcomm case. (See May 3, 2019 post on DOJ Statement of Interest).  FTC Staff stated that it did not request the DOJ filing, which FTC Staff called untimely.  FTC Staff also indicated that the focus of DOJ’s Statement of Interest–the need for briefing and an evidentiary hearing on remedy–was misplaced because evidence of remedy already has been considered and the trial court already decided not to consider remedy separately.  And FTC Staff disagrees with DOJ’s view of the law.

The FTC Staff position is not unexpected given the differing views of the role of competition law with standard essential patents between the FTC Staff’s position (which was set when this case was filed as a parting-shot in the last few days of the old administration) and the current DOJ administration.  That FTC Staff would take off the gloves so soon and start exchanging public, adversarial blows with its sibling agency is a bit unexpected.  But, of course, they may argue that DOJ drew first blood in filing the Statement of Interest. 
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Today, the U.S. Department of Justice (DOJ) filed a Statement of Interest of the United States of America in the Federal Trade Commission’s (FTC) antitrust lawsuit against Qualcomm about standard essential patent licensing.  DOJ does not currently take a position on the merits of the FTC’s liability claim against Qualcomm that is awaiting decision by the district court following a January trial, but is making the court aware that there should be separate briefing and an evidentiary hearing on remedy if the court finds that Qualcomm is liable.  This is a very interesting development with implications beyond the instant case with much reading between the lines–and the good stuff buried in footnotes–as to what is to come.  Somewhat like the first 10 minutes of last week’s Game of Thrones episode “The Long Night” where warriors lined-up for some kind of battle to happen but it was not clear what exactly that would be.
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Yesterday, the U.S. Federal Trade Commission (“FTC”) released a 269-page Report following its study of patent assertion entities (“PAEs”) — i.e. what the FTC’s press release calls “firms that acquire patents from third parties and then try to make money by licensing or suing accused infringers.” (see our Sep. 27, 2013 post, May 21, 2014 post and Aug. 14, 2014 post for background on this PAE study).  The report is based on a study of public information as well as non-public information that the FTC used its subpeona power to obtain resulting in data covering the 2009 to 2014 period from 22 PAEs, 327 PAE affilidate and over 2100 holding entities (entities that owned but did not assert patents).

The report indicates that not all PAEs are the same and concerns about PAEs should be focused on problematic behavior of a subset of PAEs–i.e., certain Litigation PAEs, but not Porfolio PAEs.  The report also indicates that there is no widespread concern about PAEs sending demand letters or PAEs owning standard essential patents subject to a FRAND or other standard setting licensing commitment.  The report provides some recommendations concerning patent reform, which are directed to patent litigation and the behavior of some Litigation PAEs.
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On Friday, the U.S. International Trade Commission issued a Notice on its review of Judge Essex’s decision in the InterDigital v. Nokia investigation and found that Nokia did not infringe InterDigital’s 3GPP patents (see our May 12, 2015 post on Judge Essex’s decision).  Recall that, in granting partial review of Judge Essex’s decision, the Commission

Yesterday, we reported on the manager’s amendments to the Protecting American Talent and Entrepreneurship Act, or “PATENT Act,” a bi-partisan patent reform bill introduced by Senator Leahy and several other Senators.  After two additional amendments by members of the Senate Judiciary Committee during yesterday’s mark-up session, the committee approved the bill by a vote of 

On Tuesday, a proposed Manager’s Amendment was released for the Senate’s pending PATENT Act bill.  Following is a recap of the recent wave of patent legislation proposals this year.

Innovation Act.  Since 2013, the House and the Senate have considered various forms of patent reform legislation that attempt to address perceived patent litigation abuse.