I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
She's already said no during Friday's arguments.
Koh already said no to what? AFAIK Qualcomm hasn't yet presented their defense.... I'm guessing you've read something that I haven't yet. Any link?
She’d already spoken about this tactic in pre-trial hearings, afaik. Got too much crap going on right now, will revisit a bit later in the day.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
She's already said no during Friday's arguments.
Koh already said no to what? AFAIK Qualcomm hasn't yet presented their defense.... I'm guessing you've read something that I haven't yet. Any link?
She’d already spoken about this tactic in pre-trial hearings, afaik. Got too much crap going on right now, will revisit a bit later in the day.
Ah, you're talking about the preliminary ruling she made a few weeks back, a contract law issue rather than antitrust. I don't believe the DoJ position was used at that time since it wasn't an antitrust allegation that was being considered.
And yes I imagine you have your hands full most mornings here at AI. It's a lot of work coordinating a site like this, especially the business side. The forums are simply a sideline, probably more of a headache than anything IMO.
And yes I imagine you have your hands full most mornings here at AI. It's a lot of work coordinating a site like this, especially the business side. The forums are simply a sideline, probably more of a headache than anything IMO.
The forums operate at a pretty hefty financial loss, but I think that they're important.
And yes I imagine you have your hands full most mornings here at AI. It's a lot of work coordinating a site like this, especially the business side. The forums are simply a sideline, probably more of a headache than anything IMO.
The forums operate at a pretty hefty financial loss, but I think that they're important.
That's good to hear! I mean not the loss part of course...
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
Fun fact: Huawei would just as soon Samsung not be involved anyway. The two have their own legal spat going on over patent licensing.
Qualcomm will certainly, to the extent it can, argue that existing case law supports its positions. But we're talking about the enforcement policy shift which AAG Delrahim indicated. Are you suggesting that Qualcomm has already made arguments based it? If so, then what were those arguments? How, according to Qualcomm's arguments, is it relevant?
Also, why would Samsung negotiating an agreement with Qualcomm make it not an important witness if it otherwise would have been? Would the facts it might testify to (i.e. that its representatives might testify to), relating to past Qualcomm practices, have changed? Or would it not be honest about them?
I don't think Samsung was likely to be among the FTC's most important witnesses anyway, though it seemed to have information which would help the FTC make its case - information which corroborated information from other parties. That said, a representative from Samsung was on the FTC's day 2 witness list.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
She's already said no during Friday's arguments.
Koh already said no to what? AFAIK Qualcomm hasn't yet presented their defense.... I'm guessing you've read something that I haven't yet. Any link?
Qualcomm has laid out its legal arguments just as the FTC has. That's not to say that substantively new legal arguments won't be offered.
But the arguments of both sides have been pretty well fleshed out. Now they're presenting their evidence in order to support the (1) findings of fact and (2) conclusions of law which they hope the court will make.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it, I don't know. Look at the original post and see that I questioned whether it's a pertinent point too, whether such an argument would be successful.
Perhaps if you went back and looked at my original post you'd find less to disagree with me about. Post #3.
In a few days Qualcomm will begin their defense and things will flesh themselves out.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
Fun fact: Huawei would just as soon Samsung not be involved anyway. The two have their own legal spat going on over patent licensing.
Are you suggesting that Qualcomm has already made arguments based it?
What have I written that suggested that to you? Every mention I've made has used future tense, not past.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
That's certainly not the entirety of Qualcomm's defense.
FWIW Samsung is no longer an important witness for the FTC anyway. In the year+ since the case was filed Samsung negotiated an acceptable licensing agreement with Qualcomm and isn't going to be terribly helpful. Surprisingly the FTC's case might instead hinge on the unlikeliest of witnesses: Huawei.
Fun fact: Huawei would just as soon Samsung not be involved anyway. The two have their own legal spat going on over patent licensing.
Are you suggesting that Qualcomm has already made arguments based it?
What have I written that suggested that to you? Every mention I've made has used future tense, not past.
I asked that based on what you said in the post I quoted:
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom....
If you meant to say that you still believe Qualcomm will try to, instead of Qualcomm is still trying to, then fair enough.
Again, I'm not foreclosing that possibility. I'm trying to understand why you think it will be the case. Maybe there's a relevance that I can't see.
Huawei is reportedly petitioning the court to block some of Samsung's testimony in the FTC case. They worry some of the allegations Huawei is making against Qualcomm may be used by Samsung against Huawei in their trial asserting F/RAND pledged IP claims re:Sammy scheduled to begin the 19th of next month. They'd like to help make sure that what goes around doesn't come around.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance. It may, or may not.
Thank you. I'll read that brief when I get back home to see what relevance Qualcomm is suggesting.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance. It may, or may not.
Thank you. I'll read that brief when I get back home to see what relevance Qualcomm is suggesting.
You're welcome. I could have posted that sooner but in one of your previous replies you left me with the impression you were already familiar with the defense Qualcomm will be making, which presumably would come from reading that brief or a 3rd party report on it.
So no it has not yet been argued. BUT yes it WILL be argued. AND I have no evidence of what Koh's consideration of its "relevance" should or will amount to. No one does yet.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
Okay, I got a chance to look at the brief. Before discussing what it does and doesn't do, I'd ask a couple of questions:
(1) Did you read that brief?
(2) If so, do you think it supports what you've been saying? Meaning, does it support your belief that the shift in U.S. enforcement policy, which AAG Delrahim indicated and which we've previously discussed, will be a major point that Qualcomm tries to make in this case? Or, does it support the assertion that Qualcomm will be making an argument based on that shift in enforcement policy?
I'd go back to what you originally posted and what I responded to:
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
The recent shift in U.S. enforcement policy is what, I thought, we'd been discussing. You think that Qualcomm will make arguments in this case based on that recent shift? And that it will be a major point Qualcomm tries to make? That's what I understood you as suggesting.
The brief you linked to doesn't support those notions. I'll explain why if you'd like me to. But after looking at it I asked myself whether you'd actually read the brief before linking to it.
If you previously just meant that Qualcomm would mention comments made by AAG Delrahim, in connection with something else which Qualcomm had already been arguing, and as support for something that isn't in dispute, then fair enough. But in that brief Qualcomm doesn't make an argument based on the recent shift in enforcement policy which, I thought, has been the issue we we're discussing.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance. It may, or may not.
Thank you. I'll read that brief when I get back home to see what relevance Qualcomm is suggesting.
You're welcome. I could have posted that sooner but in one of your previous replies you left me with the impression you were already familiar with the defense Qualcomm will be making, which presumably would come from reading that brief or a 3rd party report on it.
So no it has not yet been argued. BUT yes it WILL be argued. AND I have no evidence of what Koh's consideration of its "relevance" should or will amount to. No one does yet.
I am familiar with the positions that Qualcomm has taken. I haven't, of course, read every filing and order issued in this case - there are over a thousand docket entries.
But the brief you linked to didn't make any new arguments. It went over some of the same stuff which Qualcomm had previously argued, e.g. in its much longer proposed findings of fact and conclusions of law from earlier in December. As is often true in court cases, many of the filings in this case are mostly repetitive. Some are more concise, and some are more drawn out.
That said, this brief doesn't do what I took you as suggesting it would - show that Qualcomm is making an argument based on the recent shift in DOJ policy which you previously referred to. Perhaps Qualcomm will do that (though I think it unlikely because, as I previously indicated, that shift isn't relevant to the allegations made by the FTC in this case), but it isn't doing that in this brief.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
...
Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
Okay, I got a chance to look at the brief. Before discussing what it does and doesn't do, I'd ask a couple of questions:
(1) Did you read that brief?
(2) If so, do you think it supports what you've been saying? Meaning, does it support your belief that the shift in U.S. enforcement policy, which AAG Delrahim indicated and which we've previously discussed, will be a major point that Qualcomm tries to make in this case? Or, does it support the assertion that Qualcomm will be making an argument based on that shift in enforcement policy?
I'd go back to what you originally posted and what I responded to:
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
The recent shift in U.S. enforcement policy is what, I thought, we'd been discussing. You think that Qualcomm will make arguments in this case based on that recent shift? And that it will be a major point Qualcomm tries to make? That's what I understood you as suggesting.
The brief you linked to doesn't support those notions. I'll explain why if you'd like me to. But after looking at it I asked myself whether you'd actually read the brief before linking to it.
If you previously just meant that Qualcomm would mention comments made by AAG Delrahim, in connection with something else which Qualcomm had already been arguing, and as support for something that isn't in dispute, then fair enough. But in that brief Qualcomm doesn't make an argument based on the recent shift in enforcement policy which, I thought, has been the issue we we're discussing.
My post was not that the shift itself directly affected the FTC case but that the position and arguments the DoJ now makes, and the case law it cites in support of it, will be a major focus of what Qualcomm will use in their defense as it's supports their beliefs re:antitrust issues involved in the lawsuit. What do I base that on? In their pre-trial brief it's a major focus.
Where a year+ ago when the case was first filed the DoJ and FTC might have been more aligned with each other, increasingly that's not the case regarding SEP's and antitrust enforcement. The shift is therefore noteworthy and the rationale the DoJ uses supports Qualcomm in some ways on a legal basis. I'll find it difficult to believe that Koh will treat it as unimportant, but maybe you're correct and she'll give it no weight whatsoever. A few weeks from now when a final order comes down we'll know better.
And yes I've read the Qualcomm brief in its entirety (more than once) tho not until this past weekend. I read the FTC's too. My initial comments were based on a legal blogs 3rd hand account of it which certainly helped in my understanding of the intent when I did finally find it. IANAL. I wasn't able to find the actual filing to read for myself until a day or so later, on the 5th I think.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
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Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
Okay, I got a chance to look at the brief. Before discussing what it does and doesn't do, I'd ask a couple of questions:
(1) Did you read that brief?
(2) If so, do you think it supports what you've been saying? Meaning, does it support your belief that the shift in U.S. enforcement policy, which AAG Delrahim indicated and which we've previously discussed, will be a major point that Qualcomm tries to make in this case? Or, does it support the assertion that Qualcomm will be making an argument based on that shift in enforcement policy?
I'd go back to what you originally posted and what I responded to:
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
The recent shift in U.S. enforcement policy is what, I thought, we'd been discussing. You think that Qualcomm will make arguments in this case based on that recent shift? And that it will be a major point Qualcomm tries to make? That's what I understood you as suggesting.
The brief you linked to doesn't support those notions. I'll explain why if you'd like me to. But after looking at it I asked myself whether you'd actually read the brief before linking to it.
If you previously just meant that Qualcomm would mention comments made by AAG Delrahim, in connection with something else which Qualcomm had already been arguing, and as support for something that isn't in dispute, then fair enough. But in that brief Qualcomm doesn't make an argument based on the recent shift in enforcement policy which, I thought, has been the issue we we're discussing.
My post was not that the shift itself directly affected the FTC case but that the position and arguments the DoJ now makes, and the case law it cites in support of it, will be a major focus of what Qualcomm will use in their defense as it's supports their beliefs re:antitrust issues involved in the lawsuit. What do I base that on? In their pre-trial brief it's a major focus.
Where a year+ ago when the case was first filed the DoJ and FTC might have been more aligned with each other, increasingly that's not the case regarding SEP's and antitrust enforcement. The shift is therefore noteworthy and the rationale the DoJ uses supports Qualcomm in some ways on a legal basis. I'll find it difficult to believe that Koh will treat it as unimportant, but maybe you're correct and she'll give it no weight whatsoever. A few weeks from now when a final order comes down we'll know better.
And yes I've read the brief in its entirety (more than once) tho not until this past weekend. My initial comments were based on a legal blogs 3rd hand account of it which certainly helped in my understanding the intent. IANAL. I wasn't able to find the actual filing to read for myself until a day or so later, on the 5th I think.
Regarding the bold-ed part: How so? That's what I'm asking. How is it relevant to this case? How does it support Qualcomm's positions?
It is true that a shift in DoJ position has been indicated by, e.g., AAG Delrahim. But that shift is not relevant to the present case. Qualcomm has not argued, as best I can tell, that it is. Qualcomm hasn't even brought it up as far as I'm aware.
If you read the brief you linked to, before you linked to it, then why did you link to it? It doesn't demonstrate that Qualcomm is making arguments in this case based on the recent shift in DoJ policy. The brief referred to a statement by AAG Delrahim which doesn't reflect the recent shift in policy which is at issue. The brief itself notes that the position Qualcomm is taking - the one which AAG Delrahim's statement is mentioned in connection with, essentially that a refusal to deal is not in itself an antitrust violation - is one that the DoJ has long taken. That's a different matter from the recent shift in policy that we've been discussing.
As for citing some of the same case law: Yeah, that's no surprise. In that brief Qualcomm is citing much of the same case law that it's been citing all along. Different parties discussing particular legal issues will end up citing much the same case law. If you look at their briefs, you'll probably find that there's considerable overlap between the cases cited by the FTC and those cited by Qualcomm - even though they are arguing contrary positions.
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
Regarding the FTC case itself I suspect this will be the tipping point. If Apple doesn't get most of what they want from it I would not personally be surprised at all if they go back to the negotiating table. That's a big if tho as I don't think Qualcomm can successfully argue every point needed for that to happen.
In any event the trial may not be as much of a slam-dunk for licensees as it may have appeared to be a few months ago.
If you're referring to the comments AAG Delharim made in December, which you pointed me to, then I don't see the relevance to this case. He did indicate a shift in policy stance by announcing that the Antitrust Division was withdrawing its assent to a 2013 joint policy statement. But how does that shift relate to the allegations the FTC is making in this case? The shift that AAG Delharim indicated, to the degree it might be relevant here, related to the propriety of injunctions or exclusion orders being issued at the request of SEP holders.
The FTC isn't arguing that Qualcomm violated antitrust laws by seeking, or threatening to seek, injunctions or exclusion orders. I've looked over the FTC's proposed findings of fact and conclusions of law, and I don't think it mentions those kinds of actions on Qualcomm's part. (You can, of course, correct me if I'm wrong on that point.) I also don't recall Qualcomm arguing that such actions don't represent antitrust violations or components thereof. It wouldn't need to argue to that effect because the allegations against it aren't based on such actions. The FTC's antitrust arguments are based on other actions which Qualcomm is alleged to have taken.
Read both links in post 6, plus the link in post 9.
FWIW (and keeping in mind that it appears to me Mr Mueller may have a new paying client) FossPatents blog also agrees with me on one of the arguments QC will be making:
"My feeling is that the FTC has a very strong case. There's every indication that Judge Koh agrees, at least in principle, with the FTC's legal theories. Qualcomm points to Assistant Attorney General Makan Delrahim's positions on SEPs, but Mr. Delrahim can't do away with all the case law that already exist in this area. That means Qualcomm now needs to prevail on the facts, but those same facts actually persuaded antitrust enforcers in different countries and cultures to deem some of Qualcomm's practices anticompetitive. (emphasis mine)
I'm open to the possibility that something he said could help Qualcomm's position (in this case), but I'd need to have someone make the case how it could in order to be able to assess that possibility.
That someone would need to be Qualcomm and Judge Koh wouldn't it? My posts are simply pointing out that Qualcomm is going to try and use the DoJ's policy statements to their advantage during the course of the trial, and just as I said in the initial post I personally think they'll fall short even if the case may not now be the slam dunk for the FTC many here assumed, and perhaps including you, when this started.
Even FTC chair Simon (an appointed position just like the AG) admits in recent weeks, there's some danger of confusion on the part of both licensees SEP contributors with views regarding enforcement efforts appearing at odds with each other. Based on his comments in a recent speech they may not be so entirely different in their approach to SEP's and F/RAND commitments going forward. IMHO their views are converging more than differing as recent months have passed. https://www.ftc.gov/system/files/documents/public_statements/1413340/simons_georgetown_lunch_address_9-25-18.pdf
In that speech he echoed some of AAG Delrahim's statements, pointing out that potential instances of patent "hold-up" on the part of potential SEP licensees deserves enforcement scrutiny, particularly so if licensees appear to be in collusion in order to unfairly influence contract negotiations.
Chairman Simons also stated that he agrees with DOJ that a breach of a F/RAND commitment alone, even a fraudulent one, is not sufficient proof of an antitrust violation unless that it results in "the acquisition or maintenance of monopoly power in a properly defined market, or involve... an agreement that unreasonably restrains trade." Thus the basis for the Qualcomm lawsuit (note the specific wording, i believe used by the FTC in its QC filing)
But no, like you I don't believe using the DoJ for support will be a highly effective strategy, but yet could factor into some of Koh's final ruling anyway. There's another couple of weeks of trial to be held.
So my original post was for two purposes. First: Making those few interested readers aware of a shifting policy re:SEP standards and contracts, primarily by the DoJ who might no longer be expected to file nor support an action such as the FTC's, (and it appears the FTC may be leaning that direction too now) Second: Qualcomm will use Delrahim's comments and the citing of SCOTUS decisions that he believes should influence US policy as evidence for their belief of the legality of SOME licensing practices the FTC is taking issue with.
Just my viewpoint of course....
It's up to Qualcomm what arguments it makes, yes.
I was asking you because you indicated that you believed that the shift in enforcement policy which we're referring to (wrt, e.g., injunctions and exclusion orders) would be a major point which Qualcomm would try to make with Judge Koh. I suggest that it wasn't relevant to this particular case. Then you asked me to read both of the links you provided. So I asked you to tell me how you thought what was said there was relevant to the FTC case.
If you think Qualcomm will try to use this indicated policy shift to argue to Judge Koh in this case, then I'm asking how so? In what way is it relevant to allegations made by the FTC? Because I can't see how it helps Qualcomm in this particular case.
In short, any changes proposed by Delrahim aren't coming soon, and certainly not even close to in time for this trial. Judge Koh came up against similar arguments from Samsung in regards to proposed design patent enforcement changes in Apple v. Samsung -- but not even those changes haven't been implemented.
In short, Apple, Samsung, and Judge Koh are relying on existing interpretations, rather than a verbal shift in enforcement policy that hasn't happened yet, and may not at all.
Regardless of whether the policy changes at issue are in effect, my point is that they don't seem relevant to this particular case. The FTC isn't making allegations which those policy changes might cut against. That's why I'm asking Gatorguy why he thinks they're relevant.
I don't know how relevant they may be. I think you're trying to get me to argue Qualcomm's case which neither you nor I are qualified for. The point I made originally is that the argument is going to be made, relevant or not, and the DoJ's position on antitrust enforcement of what should be contract law issues will be part of QC's defense. Will Koh accept any part of it. I don't know. I too questioned whether such an argument would be successful. Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
I read your original post, that's what I originally responded to. You indicated your belief that this would be a major point that Qualcomm would try to make. You've also suggested that AAG's comments were relevant by telling me to read them in response to my assertion that what we're talking about isn't relevant to this case.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
Mike be that as it may Qualcomm is still trying to use the DoJ's position on SEP's and the SCOTUS case law Delrahim cited to their advantage in Koh's courtroom.... and just as I said in my very first comment I don't know that Koh will consider any of it. At the same time we don't yet know if she might be swayed, even if only a little, by it.
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Ah I see the misunderstanding. What I referred to is legal blog mentions that Qualcomm will be making the argument, not that the argument has already been made. But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support: https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
Okay, I got a chance to look at the brief. Before discussing what it does and doesn't do, I'd ask a couple of questions:
(1) Did you read that brief?
(2) If so, do you think it supports what you've been saying? Meaning, does it support your belief that the shift in U.S. enforcement policy, which AAG Delrahim indicated and which we've previously discussed, will be a major point that Qualcomm tries to make in this case? Or, does it support the assertion that Qualcomm will be making an argument based on that shift in enforcement policy?
I'd go back to what you originally posted and what I responded to:
I'll assume almost no one here (outside of Carnegie as we discussed it already) knows there has been a relatively recent shift in US policy regarding SEP's, F/RAND commitments and DoJ involvement with them, and the appropriateness of junctions/exclusion orders against "unwilling licensees". I believe that will be a major point that Qualcomm tries to make with Judge Koh.
No idea if she'll buy into the arguments made by Ass't AG Delrahim or not, but the US Attorney General's office stated roughly a month ago that they will be drafting new guidelines regarding standards-essential patent enforcement and cures. Changes are coming, and they may be more IP-holder friendly than might be presumed.
The recent shift in U.S. enforcement policy is what, I thought, we'd been discussing. You think that Qualcomm will make arguments in this case based on that recent shift? And that it will be a major point Qualcomm tries to make? That's what I understood you as suggesting.
The brief you linked to doesn't support those notions. I'll explain why if you'd like me to. But after looking at it I asked myself whether you'd actually read the brief before linking to it.
If you previously just meant that Qualcomm would mention comments made by AAG Delrahim, in connection with something else which Qualcomm had already been arguing, and as support for something that isn't in dispute, then fair enough. But in that brief Qualcomm doesn't make an argument based on the recent shift in enforcement policy which, I thought, has been the issue we we're discussing.
My post was not that the shift itself directly affected the FTC case but that the position and arguments the DoJ now makes, and the case law it cites in support of it, will be a major focus of what Qualcomm will use in their defense as it's supports their beliefs re:antitrust issues involved in the lawsuit. What do I base that on? In their pre-trial brief it's a major focus.
Where a year+ ago when the case was first filed the DoJ and FTC might have been more aligned with each other, increasingly that's not the case regarding SEP's and antitrust enforcement. The shift is therefore noteworthy and the rationale the DoJ uses supports Qualcomm in some ways on a legal basis. I'll find it difficult to believe that Koh will treat it as unimportant, but maybe you're correct and she'll give it no weight whatsoever. A few weeks from now when a final order comes down we'll know better.
And yes I've read the brief in its entirety (more than once) tho not until this past weekend. My initial comments were based on a legal blogs 3rd hand account of it which certainly helped in my understanding the intent. IANAL. I wasn't able to find the actual filing to read for myself until a day or so later, on the 5th I think.
Regarding the bold-ed part: How so? That's what I'm asking. How is it relevant to this case? How does it support Qualcomm's positions?
I honestly don't know what you're wanting me to say. I offered my comments and opinion, linked to pertinent articles and speeches, and offered the Qualcomm brief itself to prove QC's interest in working the DoJ position and case law cited in support of it to their advantage.
So my common sense (and the courtroom experts I've read) is telling me that the DoJ's comments that support Qualcomm in some ways (in QC's opinion at least) will be used in court arguments. Perhaps lawyers and court-watchers are wrong and it won't come up, nor their rationale for the position they're taking be one that Judge Koh finds to be relevant anyway.
What my understanding of it all comes from is simply research and reading. A lot of both. I assumed yours comes the same way, tho I've not seen any links of your own that would indicate I should dismiss those expectations for QC's defense plans. If ya got'em post'em. I don't avoid learning opportunities. If the sources I read are wrong then my expectations will likely be wrong too. To me it seems more as tho you'd like to play a game of "gotcha", but as the case has barely begun it's a bit early to claim either of us completely misunderstands what the two sides will attempt to prove and the way they intend to prove it.
I'm recognize I'm not qualified as a legal expert. I thought I had made that clear, more than once. If you fashion yourself to be then fine. Perhaps you are, and perhaps you have significant training in the field of antitrust and patent enforcement. Me, I'll wait and see how it plays out, and in the meantime stay clued in on what actual experts are saying.
The expectation I have (and I'm not the only one) is that you'll be reading within a few days that Qualcomm used the DoJ and its specific rationale for its opinion as support for their defense, as well as the opposition and Judge's response to it. If they don't they you are right, it apparently had no relevance and won't come up. But questioning the relevance is a question best put to QC's legal team which has already signaled they plan to use it.
Comments
And yes I imagine you have your hands full most mornings here at AI. It's a lot of work coordinating a site like this, especially the business side. The forums are simply a sideline, probably more of a headache than anything IMO.
Also, why would Samsung negotiating an agreement with Qualcomm make it not an important witness if it otherwise would have been? Would the facts it might testify to (i.e. that its representatives might testify to), relating to past Qualcomm practices, have changed? Or would it not be honest about them?
I don't think Samsung was likely to be among the FTC's most important witnesses anyway, though it seemed to have information which would help the FTC make its case - information which corroborated information from other parties. That said, a representative from Samsung was on the FTC's day 2 witness list.
But the arguments of both sides have been pretty well fleshed out. Now they're presenting their evidence in order to support the (1) findings of fact and (2) conclusions of law which they hope the court will make.
Perhaps if you went back and looked at my original post you'd find less to disagree with me about.
Post #3.
In a few days Qualcomm will begin their defense and things will flesh themselves out.
Do you not have a reason for believing that this would be a major point that Qualcomm would try to make? It wouldn't be a major point that Qualcomm would try to make unless it was relevant somehow. So I'm asking how that might be. And I'm asking you because you are the one who suggested it.
I'm also now asking about what you said in post 18. You seem to be suggesting that Qualcomm actually is using the DoJ's position in its arguments, not just that you believe it will. If that's the case, then how did it do so?
If you meant to say that you still believe Qualcomm will try to, instead of Qualcomm is still trying to, then fair enough.
Again, I'm not foreclosing that possibility. I'm trying to understand why you think it will be the case. Maybe there's a relevance that I can't see.
Huawei is reportedly petitioning the court to block some of Samsung's testimony in the FTC case. They worry some of the allegations Huawei is making against Qualcomm may be used by Samsung against Huawei in their trial asserting F/RAND pledged IP claims re:Sammy scheduled to begin the 19th of next month. They'd like to help make sure that what goes around doesn't come around.
But with that clarified YES Qualcomm has already introduced the DoJ's position in its pre-trial brief along with citing some of the same cases mentioned by them (via Mr. Delrahim) as support:
https://www.scribd.com/document/396692266/18-12-31-Qualcomm-Trial-Brief#download&from_embed
In a few days when Qualcomm wields the DoJ position and cited cases in their defense we'll see if it has any relevance to Judge Koh. It may, or may not.
@carnegie is that more helpful?
So no it has not yet been argued.
BUT yes it WILL be argued.
AND I have no evidence of what Koh's consideration of its "relevance" should or will amount to. No one does yet.
(1) Did you read that brief?
(2) If so, do you think it supports what you've been saying? Meaning, does it support your belief that the shift in U.S. enforcement policy, which AAG Delrahim indicated and which we've previously discussed, will be a major point that Qualcomm tries to make in this case? Or, does it support the assertion that Qualcomm will be making an argument based on that shift in enforcement policy?
I'd go back to what you originally posted and what I responded to:
The recent shift in U.S. enforcement policy is what, I thought, we'd been discussing. You think that Qualcomm will make arguments in this case based on that recent shift? And that it will be a major point Qualcomm tries to make? That's what I understood you as suggesting.
The brief you linked to doesn't support those notions. I'll explain why if you'd like me to. But after looking at it I asked myself whether you'd actually read the brief before linking to it.
If you previously just meant that Qualcomm would mention comments made by AAG Delrahim, in connection with something else which Qualcomm had already been arguing, and as support for something that isn't in dispute, then fair enough. But in that brief Qualcomm doesn't make an argument based on the recent shift in enforcement policy which, I thought, has been the issue we we're discussing.
I am familiar with the positions that Qualcomm has taken. I haven't, of course, read every filing and order issued in this case - there are over a thousand docket entries.
But the brief you linked to didn't make any new arguments. It went over some of the same stuff which Qualcomm had previously argued, e.g. in its much longer proposed findings of fact and conclusions of law from earlier in December. As is often true in court cases, many of the filings in this case are mostly repetitive. Some are more concise, and some are more drawn out.
That said, this brief doesn't do what I took you as suggesting it would - show that Qualcomm is making an argument based on the recent shift in DOJ policy which you previously referred to. Perhaps Qualcomm will do that (though I think it unlikely because, as I previously indicated, that shift isn't relevant to the allegations made by the FTC in this case), but it isn't doing that in this brief.
Where a year+ ago when the case was first filed the DoJ and FTC might have been more aligned with each other, increasingly that's not the case regarding SEP's and antitrust enforcement. The shift is therefore noteworthy and the rationale the DoJ uses supports Qualcomm in some ways on a legal basis. I'll find it difficult to believe that Koh will treat it as unimportant, but maybe you're correct and she'll give it no weight whatsoever. A few weeks from now when a final order comes down we'll know better.
And yes I've read the Qualcomm brief in its entirety (more than once) tho not until this past weekend. I read the FTC's too. My initial comments were based on a legal blogs 3rd hand account of it which certainly helped in my understanding of the intent when I did finally find it. IANAL.
I wasn't able to find the actual filing to read for myself until a day or so later, on the 5th I think.
It is true that a shift in DoJ position has been indicated by, e.g., AAG Delrahim. But that shift is not relevant to the present case. Qualcomm has not argued, as best I can tell, that it is. Qualcomm hasn't even brought it up as far as I'm aware.
If you read the brief you linked to, before you linked to it, then why did you link to it? It doesn't demonstrate that Qualcomm is making arguments in this case based on the recent shift in DoJ policy. The brief referred to a statement by AAG Delrahim which doesn't reflect the recent shift in policy which is at issue. The brief itself notes that the position Qualcomm is taking - the one which AAG Delrahim's statement is mentioned in connection with, essentially that a refusal to deal is not in itself an antitrust violation - is one that the DoJ has long taken. That's a different matter from the recent shift in policy that we've been discussing.
As for citing some of the same case law: Yeah, that's no surprise. In that brief Qualcomm is citing much of the same case law that it's been citing all along. Different parties discussing particular legal issues will end up citing much the same case law. If you look at their briefs, you'll probably find that there's considerable overlap between the cases cited by the FTC and those cited by Qualcomm - even though they are arguing contrary positions.
So my common sense (and the courtroom experts I've read) is telling me that the DoJ's comments that support Qualcomm in some ways (in QC's opinion at least) will be used in court arguments. Perhaps lawyers and court-watchers are wrong and it won't come up, nor their rationale for the position they're taking be one that Judge Koh finds to be relevant anyway.
What my understanding of it all comes from is simply research and reading. A lot of both. I assumed yours comes the same way, tho I've not seen any links of your own that would indicate I should dismiss those expectations for QC's defense plans. If ya got'em post'em. I don't avoid learning opportunities. If the sources I read are wrong then my expectations will likely be wrong too. To me it seems more as tho you'd like to play a game of "gotcha", but as the case has barely begun it's a bit early to claim either of us completely misunderstands what the two sides will attempt to prove and the way they intend to prove it.
I'm recognize I'm not qualified as a legal expert. I thought I had made that clear, more than once. If you fashion yourself to be then fine. Perhaps you are, and perhaps you have significant training in the field of antitrust and patent enforcement. Me, I'll wait and see how it plays out, and in the meantime stay clued in on what actual experts are saying.
The expectation I have (and I'm not the only one) is that you'll be reading within a few days that Qualcomm used the DoJ and its specific rationale for its opinion as support for their defense, as well as the opposition and Judge's response to it. If they don't they you are right, it apparently had no relevance and won't come up. But questioning the relevance is a question best put to QC's legal team which has already signaled they plan to use it.