The big Qualcomm news this week was the start of the FTCU.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]. v. Qualcomm antitrust trial in front of Judge Koh.[1. For a blow-by-blow of this case from a number of reporters in attendance, check out the hashtag #ftcqcom on Twitter.]
But Qualcomm’s first ITCInternational Trade Commission case against Apple has also had significant developments—even though the ITCInternational Trade Commission is shut down and the case is on hold.
In particular, a number of members of Congress have addressed comments to the ITCInternational Trade Commission. These Senators and Representatives express their concern with Qualcomm’s request to exclude their competitor’s products and the serious impacts it would have on U.S. competitive conditions and on national security. I understand that other Congressional letters are expected once the ITCInternational Trade Commission re-opens submissions. As the ITC’s filing system isn’t necessarily user-friendly, I have collected the current Congressional submissions in this post (and will update with additional submissions as I obtain them).
Letter from Representative Andy Biggs (R-AZ): “An exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. would create a monopoly in the open market for baseband chipsets just as 5G deployment begins, which would result in higher prices, less stable supply, and reduced innovation. The order also would risk the loss of the significant manufacturing jobs that Intel is creating in Arizona.”
Letter from former House Judiciary Subcommittee on Intellectual Property Chairman Darrell Issa (R-CA): “Forcing Intel out of the market now would deal a serious below to competition in this critical sector [5G] and thus to our economic interests. … The vacuum created by Intel’s absence would invite greater American dependence on foreign suppliers that have no stake in promoting our interests.”
Letter from Sens. Ron Wyden (D-OR) and Jeff Merkley (D-OR) and Reps. Suzanne Bonamici (D-OR), Kurt Schrader (D-OR), and Peter DeFazio (D-OR): “As the ALJ explained, an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. that creates a monopoly market and eliminates competition in the premium chipset market will dampen the ‘quality, innovation, competitive pricing, and in this case the preservation of a strong U.S. presence in the development of 5G and thus the national security of the United States. … A healthy and competitive global market driven by American companies will enable our companies to compete on security and privacy, in addition to other market drivers such as performance and cost, leading to a more secure communications infrastructure.”
Letter from Reps. Zoe Lofgren (D-CA), Anna Eshoo (D-CA), Eric Swalwell (D-CA), and Doris Matsui (D-CA): “Our concern is that by granting an exclusion or cease-and-desist order in this instance the Commission would not only impact the FTC’s enforcement action, but also could be inadvertently showing powerful technology companies a strategy for circumventing their FRAND"Fair, Reasonable, and Non-Discriminatory" licensing. A licensing commitment made for standard-essential patents in the context of technology standard setting activities. See also RAND. obligations. This has the potential to cause consumer harm far beyond this specific investigation.”
Letter from Reps. Ken Buck (R-CO), Lamar Smith (R-TX), Mark Meadows (R-NC), Doug Lamborn (R-CO), Matt Gaetz (R-FL), David Schweikert (R-AZ), and Roger Williams (R-TX): “Currently, there are only two suppliers of premium baseband chipsets for smartphones in the U.S., Qualcomm and Intel. Companies must be able to source components from a competitive market of trusted suppliers. Allowing free-market principles to govern the baseband chipset market will encourage further development of innovative 5G technologies and further spur competitive pricing. However, allowing Qualcomm’s exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. to take effect will only serve to remove Qualcomm’s lone competitor in the baseband chipset marketplace and increase risks to our economic and national security.”
Letter from Sens. Kyrsten Sinema (D-AZ) and Martha McSally (R-AZ), and Reps. Tom O’Halleran (D-AZ), Ann Kirkpatrick (D-AZ), Andy Biggs (R-AZ), David Schweikert (R-AZ), Ruben Gallego (D-AZ), Debbie Lesko (R-AZ), and Greg Stanton (R-AZ): “Application of the exclusionary order would hurt competitive conditions, production of essential components related to 5G technology, and U.S. consumers. It would also risk national security … Accordingly, to maintain American technological supremacy, safeguard national security, and promote future developments vital to elevating public health and welfare, we believe this case warrants application of a non-exclusionary remedy from the Commission.”
