This afternoon, CCIA filed comments on the public interest in the Qualcomm v. Apple case pending at the International Trade Commission (International Trade Commission). Qualcomm sued Apple in the International Trade Commission 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 International Trade Commission investigations, the International Trade Commission 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 International Trade Commission as a tool to maintain their anti-competitive practices in the face of lawsuits from Apple and the U.S. Federal Trade Commission. An independent regulatory agency charged with consumer protection and competition policy, which conducted several influential studies on how patents work in practice. Authored several key studies: 2003’s To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy [PDF] and 2011’s The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition [PDF]..
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 International Trade Commission? You Should
A little while back I mentioned that the International Trade Commission 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 International Trade Commission most in need of reform, but it illustrates why the International Trade Commission 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 International Trade Commission might not get as much press as the Eastern District of Texas, we should all pay attention to the fact that the International Trade Commission 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 International Trade Commission in mind as well.