- A rare public call by a U.S. Federal Trade Commission official for one of the agency’s courtroom victories to be reversed, in a case of anticompetitive business practices by chipmaker Qualcomm Inc, charts a strong course for a judge’s ruling to be overturned on appeal, some legal experts said.
The Qualcomm case has been controversial since it began in the final days of Democratic President Barack Obama’s administration, with the lone Republican FTC commissioner at the time saying it should not be brought. As Koh’s ruling points out, Qualcomm once licensed its patents on industry-standard technology to rival chip makers, though the ruling does not make clear how extensive the practice was. Qualcomm abandoned the practice entirely in the early 2000s and began only licensing those patents to companies that make consumer devices such as smartphones, which contain chips.
Qualcomm argued at trial that it never granted so-called “exhaustive” full licenses to other chip suppliers. Requiring it to grant them now, as Koh has ordered, would force it into a new business arrangement, rather than require a return to a previous one, the company argued. Manne said Koh erred in comparing Qualcomm’s change in licensing practices to the conduct in Aspen Skiing.
Koh, for example, said in her decision that “many Qualcomm executives’ trial testimony was contradicted by these witnesses’ own contemporaneous emails, handwritten notes, and recorded statements to the Internal Revenue Service.”
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