PublishedDecember 6, 2019

As 9th Circuit Prepares For Argument, Korean Fine Against Qualcomm Upheld

Qualcomm’s appeal of the FTC’s success in district court continues to move forward, with the second set of amicus briefs (including CCIA’s) filed the week of Thanksgiving.  Qualcomm’s reply brief is due by Friday, December 13th, and oral argument is scheduled for February 13th, 2020.  Judge Koh found that Qualcomm had abused its dominant position in baseband modems, harming consumers and competitors alike.

On appeal, Qualcomm has in essence argued that competition law shouldn’t apply to it because of its importance to cellular standards.  Many amici, from technology firms to auto companies to former heads of the FTC, repudiated the argument that maintaining Qualcomm’s position in 5G is more important than ensuring healthy competition.  We’ll see if that argument flies in the United States—given the strength of the factual determinations and the evidence in the district court, it shouldn’t—but in the meantime, Qualcomm has been handed another setback.

In 2016, the Korean FTC (KFTC) fined Qualcomm more than $850 million for its abuse of its dominant position.  The behavior that the KFTC fined Qualcomm for was the same abusive behavior that Qualcomm was found to have abused in the U.S. case.  Qualcomm, unsurprisingly, appealed this determination. And yesterday, the Seoul High Court (one step below the Korean Supreme Court) upheld that fine, finding that Qualcomm had in fact abused its position.

Qualcomm has been fined and censured for its abusive behavior in nations across the world.  And in its efforts to shield itself from U.S. competition authorities, Qualcomm has claimed that applying antitrust principles to its actions would harm U.S. industry.

But the reality is that it’s Qualcomm’s own actions that have harmed U.S. industry, forcing out multiple U.S. competitors, reducing competition and raising prices—all for the sole benefit of Qualcomm.

Josh Landau

Patent Counsel, CCIA

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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