David Long

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Ninth Circuit Stays Judge Koh’s Injuncton in the FTC v. DOJ Competition Brawl (FTC v. Qualcomm)

August 23, 2019

Today, the Ninth Circuit issues an Order that stays Judge Koh’s injunction entered in the FTC v. Qualcomm case in order to maintain the status quo so that the Ninth Circuit can decide whether Judge Koh’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act”, which is not decided by this Order but “is a matter for another day.” We…

Essential Patent Blog

Public invitation to the Competition Brawl (FTC v. Qualcomm)

By David Long

August 12, 2019

And the dance has officially begun in the U.S. inter-governmental dispute about applying competition law to the technical standard setting process between the U.S. Federal Trade Commission (FTC) and U.S. Department of Justice (DOJ) and we all have an invitation to the brawl. DOJ filed an Amicus Brief that supports Qualcomm’s request that the Ninth Circuit stay the injunction entered by Judge Koh in the FTC v. Qualcomm case until the Ninth Circuit decides whether…

Essential Patent Blog

Judge Gilstrap rules Ericsson’s licensing offers were FRAND-compliant (HTC v. Ericsson)

By David Long

May 25, 2019

Last week, Judge Gilstrap ruled that Ericsson’s end-product-based “offers to HTC–$2.50 or 1% with a $1 floor and a $4 cap per 4G device–were fair, reasonable and non-discriminatory.” Judge Gilstrap found that the comparable licenses presented by Ericsson to be “the best market-based evidence” of the value of Ericsson’s standard essential patents (SEPs) and that “the market evidence, in the form of comparable licenses, has failed to embrace HTC’s preferred SSPPU [smallest salable patent-practicing unit]…

Essential Patent Blog

Judge Koh rules that Qualcomm violated FTC Act (FTC v. Qualcomm)

By David Long

May 22, 2019

Yesterday, Judge Koh of the U.S. District Court Northern District of California entered a Judgment following the January 2019 trial based on her Findings of Fact and Conclusions of Law that Qualcomm violated the Federal Trade Commission Act. This is a lengthy, 233 page decision and we will provide a summary soon, but provide now a link to the decision given its importance to 5G and other technologies involving standard essential patents (SEPs). The next…

Essential Patent Blog

FTC Staff throws shade on DOJ Statement of Interest (FTC v. Qualcomm)

By David Long

May 13, 2019

Last week, the U.S. Federal Trade Commission (FTC) Staff filed a response that attacks the U.S. Department of Justice (DOJ) Statement of Interest in the FTC v. Qualcomm case. (See May 3, 2019 post on DOJ Statement of Interest). FTC Staff stated that it did not request the DOJ filing, which FTC Staff called untimely. FTC Staff also indicated that the focus of DOJ’s Statement of Interest–the need for briefing and an evidentiary hearing on…

Essential Patent Blog

U.S. Dept. of Justice poised to provide leadership in FTC v. Qualcomm case

By David Long

May 3, 2019

Today, the U.S. Department of Justice (DOJ) filed a Statement of Interest of the United States of America in the Federal Trade Commission’s (FTC) antitrust lawsuit against Qualcomm about standard essential patent licensing. DOJ does not currently take a position on the merits of the FTC’s liability claim against Qualcomm that is awaiting decision by the district court following a January trial, but is making the court aware that there should be separate briefing and…

Essential Patent Blog

FTC v. Qualcomm: Part One–Where is Denzel?

By David Long

February 7, 2019

This is the first of a couple posts we intend to make on the FTC v. Qualcomm litigation that recently concluded a bench trial last week and is awaiting decision by Judge Koh in the Northern District of California (San Jose Division) federal court. This case occurs at a historical point of opportunity and transformation brought by the opening stages of the 5G communication revolution. The theories and targets of the FTC case have caused…

Essential Patent Blog

Jury awards running royalty for willfully infringed SEPs subject to FRAND commitment (Optis v. Huawei)

By David Long

August 31, 2018

A jury recently found that Huawei willfully infringed four patents owned by PanOptis alleged to be essential to mobile cellular standards and subject to a FRAND commitment as well as a fifth patent related to the H.264 video compression standard but was not subject to a FRAND commitment. The jury awarded a reasonable royalty of $7.7 million for the single patent without a FRAND commitment, which was almost three times higher than the combined royalty…

Essential Patent Blog

Federal Circuit provides guidance on implied waiver defense applied to failure to disclose foreign patent application to SDO (Core Wireless v. Apple)

By David Long

August 16, 2018

Today the Federal Circuit (Renya, Bryson and Hughes) ruled that implied waiver may apply where the prior owner of a U.S. patent had a duty to disclose a related foreign patent application to ETSI even though ETSI had rejected that prior patent owner’s proposed contribution to the standard. This decision provides insight into several areas, including: Applying the equitable doctrine of implied waiver to the duty to disclose intellectual property rights (IPR) to standard setting…

Essential Patent Blog

Judge Mitchell rules there are factual issues whether patent is “essential” to a standard (Cellular Eqpt v. ZTE)

By David Long

August 13, 2018

Magistrate Judge K. Nicole Mitchell of the Eastern District of Texas recently denied patent owner Cellular Communications Equipment LLC (“Cellular” or “CCE”) motion for summary judgment that its asserted patents were not essential to a cellular standard, ruling that there was a factual dispute based on statements made by patent owner Cellular during the litigation. This case illustrates problems in loosely referring to standard essential patents generically as patents relevant to a standard or erroneously…

David Long

Ninth Circuit Stays Judge Koh’s Injuncton in the FTC v. DOJ Competition Brawl (FTC v. Qualcomm)

Public invitation to the Competition Brawl (FTC v. Qualcomm)

Judge Gilstrap rules Ericsson’s licensing offers were FRAND-compliant (HTC v. Ericsson)

Judge Koh rules that Qualcomm violated FTC Act (FTC v. Qualcomm)

FTC Staff throws shade on DOJ Statement of Interest (FTC v. Qualcomm)

U.S. Dept. of Justice poised to provide leadership in FTC v. Qualcomm case

FTC v. Qualcomm: Part One–Where is Denzel?

Jury awards running royalty for willfully infringed SEPs subject to FRAND commitment (Optis v. Huawei)

Federal Circuit provides guidance on implied waiver defense applied to failure to disclose foreign patent application to SDO (Core Wireless v. Apple)

Judge Mitchell rules there are factual issues whether patent is “essential” to a standard (Cellular Eqpt v. ZTE)

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