The Korea Fair Trade Commission (“KFTC”) recently issued a press release stating its intent to issue a written decision that will impose an $865 Million sanctions and a corrective order against Qualcomm for abuse in licensing standard essential patents (“SEPs”) in the mobile communications industry. Specifically, on December 28, 2016, the KFTC released a three-page English-translated summary of a 27-page Korean-language press release. Qualcomm issued its own press release, which includes an unofficial English translation of the 27-page KFTC press release.
This was only a press release by the KFTC and an actual written decision has yet to issue from which any action will be taken. Accordingly, at this point we provide a summary of the KFTC Press Release and conclude with important questions or issues to look for when the actual written decision of the KFTC issues. For example, Korean-based Samsung had some of the same or similar licensing practices as U.S.-based Qualcomm and prevailed in U.S. litigation on whether such practices breached the same ETSI FRAND obligations at issue here. The KFTC written decision may show why Samsung’s activities were okay, but Qualcomm’s were not.
To be clear: This is a summary based on a review of an unofficial translation of the KFTC Press Release and may not reflect actual facts or the facts and theories upon which the KFTC ultimately bases its written decision. In other words, assume that the qualification “The KFTC Press Release may indicate that …” applies to everything below since there could be error in the KFTC’s factual findings, the unofficial translation of it, or our summary thereof.