If Qualcomm Wins At The ITC, We All Lose

This afternoon, CCIA filed comments on the public interest in the Qualcomm v. Apple case pending at the International Trade Commission (ITC).  Qualcomm sued Apple in the ITC as part of the large dispute between the two companies.  (The dispute continues to grow, having recently added a case in Germany and suits and counter-suits between Qualcomm and the contract manufacturers Apple uses.)   

As part of ITC investigations, the ITC seeks comments on how the requested relief would affect the public.  As I’ve written before, Qualcomm’s practices are anti-competitive and harmful to consumers.  And by seeking to exclude Apple from selling any iPhones that lack Qualcomm processors, Qualcomm is trying to use the ITC as a tool to maintain their anti-competitive practices in the face of lawsuits from Apple and the FTC.

That hurts Apple, sure, but it also hurts American consumers.  By trying to force exclusion, Qualcomm creates the possibility of supply shocks that would lower availability and increase prices.  They also set up conditions such that Qualcomm can continue to make competitors’ products more expensive and eventually force competitors out of the market.

That’s the public interest at stake here.  If Qualcomm gets what it wants, we all lose.

Remember Me? The ITC? You Should

A little while back I mentioned that the ITC might be the next hot venue for trolls.  The Qualcomm v. Apple case might not be the kind of “domestic industry by subpoena” case that highlights the areas of the ITC most in need of reform, but it illustrates why the ITC can be an attractive place to sue.  When you can ask the court to keep your opponent from selling any of their products (or, if you’d prefer, any of their products except the ones they have to pay you for, like Qualcomm is asking for), you have a huge stick to wield against them.  That stick can be a very effective way to force unfair settlements out of defendants.

And while the ITC might not get as much press as the Eastern District of Texas, we should all pay attention to the fact that the ITC held more patent trials in each of the last two years than any district court in the country, including the Eastern District.

That’s why when we talk about patent reform, we need to keep the ITC in mind as well.

Joshua Landau

Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues.  Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.

Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues.  Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan.  Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.

Follow @PatentJosh on Twitter.

 

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  • jim mullens

    Just the opposite, if Apple wins we all lose!! Acting FTC Chair Olhausen ‘s dissenting opinion stated as much. She refers to those devoid of IP (mobile wireless- Apple/ Intel) as net users of technology and the ones calling for the dilution of intellectual property rights “….while companies that depend on strong patent rights argue for the opposite position…”. Ms. Olhausen defended Qualcomm and intellectual property rights in writing-…”…(the FTC’s action) an enforcement action based on a flawed legal theory …and that, by its
    mere issuance, will undermine U.S. intellectual property rights in Asia and worldwide. These extreme circumstances compel me to voice my objections…”

    Further, disrupting Qualcomm’s royalty revenue will slow the mobile wireless industries’ R&D and harm Apple’s smaller competition which depends upon Qualcomm’s chipsets and reference designs to
    produce sophisticated devices at a fraction of Apple’s iPhone $700 plus selling price.