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FTC Goes Toe-To-Toe-To-Toe With Qualcomm, DOJ


February 11, 2020

The Federal Trade Commission is slated to defend its antitrust win over Qualcomm’s licensing practices before the Ninth Circuit on Thursday in what could be the most public display yet of an intense divide between the nation’s two antitrust enforcers.

The U.S. Department of Justice’s Antitrust Division was granted permission to participate in the oral arguments in support of Qualcomm, pitting the FTC lawyers in-person against their DOJ counterparts after they have so far traded blows only in court filings and public comments.

But even without the unprecedented interagency confrontation, the case is noteworthy to both antitrust and intellectual property lawyers because the FTC’s case attacking core pieces of Qualcomm’s business model addresses the intersection of patent rights and antitrust law.

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In participating in Qualcomm oral arguments Thursday, the DOJ may want to be careful what it wishes for, according to Daniel McCuaig, a former longtime DOJ antitrust litigator who is now a partner at Cohen Milstein Sellers & Toll PLLC.

DOJ may face tough questioning from the judges and could concede that some conditions must be imposed on Qualcomm’s licensing practices, he said.

“A key concession from the DOJ could swing things in the FTC’s favor,” McCuaig said in an email.

The Qualcomm case also appears to represent a philosophical divide between FTC enforcers, who say that patent rights can be competitively abused and must be constrained by commitments that SEP holders make to broadly license their technology on fair terms, and DOJ enforcers, who have argued that licensing commitments almost never trigger antitrust law.

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