WEBVTT - Qualcomm Ruling Won’t Come Before Shutdown Deadline

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<v Speaker 1>One California federal judge is taking the possibility of another

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<v Speaker 1>government shutdown into account after hearing testimony in a trial

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<v Speaker 1>that pits the FTC against Qualcolm. Judge Lucy co says

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<v Speaker 1>she's unlikely to rule before the government runs out of

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<v Speaker 1>money again next month, but she told the FTC to

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<v Speaker 1>ask her again in writing by February thirteenth if it

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<v Speaker 1>appears another shutdown is likely. Joining me is Jennifer Ree

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<v Speaker 1>Bloomberg Intelligence Senior litigation analyst jen Why did the judge

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<v Speaker 1>even discuss the timing of her decision in such detail? Well,

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<v Speaker 1>you know, it is unusual June for a judge to

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<v Speaker 1>do that, and certainly they have no statutory deadlines on

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<v Speaker 1>issuing these opinions. But in the closing arguments, the FTC

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<v Speaker 1>actually asked, you know, can you just give us some

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<v Speaker 1>general guidance on your timing? And I think it's because

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<v Speaker 1>they are concerned that if they lose and want to appeal,

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<v Speaker 1>they only have a certain amount of time to appeal,

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<v Speaker 1>and if the government's closed, it will affect their timing

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<v Speaker 1>and their ability to appeal. And I think that's why

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<v Speaker 1>she also gave such a detailed response. So, what are

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<v Speaker 1>the FTCs primary allegations in the case, you know, what

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<v Speaker 1>they're primarily alleging here is that through interrelated practices, several

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<v Speaker 1>practices that over the years, Qualcom maintained its market dominance

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<v Speaker 1>in certain chips, mostly chips for three G and four

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<v Speaker 1>G uh C, d M A and lt either called

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<v Speaker 1>by by abusing its market power in those chips to

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<v Speaker 1>force um really abusively high royalties on the techno the

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<v Speaker 1>patents it has for the technology needed for those chips

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<v Speaker 1>to work in the phone and for the phone to

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<v Speaker 1>work wirelessly. So essentially, Qualcom has patents that it's obligated

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<v Speaker 1>to license in what's called a fair, reasonable and non

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<v Speaker 1>discriminatory manner because those patents are necessary by any phone

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<v Speaker 1>maker for that phone to work wirelessly, and it also

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<v Speaker 1>has chips that almost every phone maker needs. And what

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<v Speaker 1>the FTC says Qualcom did was they threatened that if

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<v Speaker 1>the phone maker wouldn't pay these very high royalties that

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<v Speaker 1>were not fair, reasonable and nondiscriminatory, they wouldn't sell them

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<v Speaker 1>their chips. And the O e M couldn't accept that.

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<v Speaker 1>So was there act toual testimony from some of the

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<v Speaker 1>people that had been allegedly threatened in this way. Yeah. Well,

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<v Speaker 1>the interesting thing is there was a lot of testimony,

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<v Speaker 1>you know, one after another O E. M's like Apple, uh,

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<v Speaker 1>and rivals like Intel took the stand and said, yes,

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<v Speaker 1>they did feel that they had no leverage. They had

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<v Speaker 1>no ability to really negotiate reasonably with Qualcolm because they

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<v Speaker 1>couldn't take the risk that they would lose this chip

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<v Speaker 1>supply um. And there were even documents where you could

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<v Speaker 1>see that Qualcom referenced, if you don't accept our royalties

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<v Speaker 1>or lose, you will lose our chips. But on the

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<v Speaker 1>other hand, you had quite a few Qualcom witnesses that

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<v Speaker 1>testified that they never actually ever stopped supplying chips to

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<v Speaker 1>an o EM, even when there were licensing disputes ongoing.

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<v Speaker 1>So that was Qualcolm's defense. That was part of its defense. Yes,

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<v Speaker 1>was there any indication which way the judge was leaning.

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<v Speaker 1>I mean, you could never tell, but sometimes the rulings. Yeah,

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<v Speaker 1>Now in this case, she was really quiet, you know,

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<v Speaker 1>very few questions, She was very focused. You to tell

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<v Speaker 1>that she was watching carefully. She was looking at the

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<v Speaker 1>exhibits and the documents. So I think at least through

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<v Speaker 1>the course of the trial, it's really hard to see

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<v Speaker 1>where she's leaning going into trial. She seemed very much

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<v Speaker 1>to be siding with the FTC. There were some pre

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<v Speaker 1>trial rulings where she took the FTC side, both in

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<v Speaker 1>what kind of evidence she would allow into the trial

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<v Speaker 1>or wouldn't allow into the trial, as well as an

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<v Speaker 1>early judgment that she made regarding Qualcom and what it's

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<v Speaker 1>obligated to do with these standard essential patents. So, if

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<v Speaker 1>the FTC wins the case, what does it want the

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<v Speaker 1>judge to do? What's the remedy in this case? Um,

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<v Speaker 1>the FTC is not seeking any money, So unlike some

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<v Speaker 1>of the actions that have been taken against Qualcom in

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<v Speaker 1>Europe and in China, there won't be any big fines here.

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<v Speaker 1>All they're looking for is a judge's order that requires

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<v Speaker 1>Qualcom to do or to refrain from doing certain things.

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<v Speaker 1>And one of the biggest ones is what we just

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<v Speaker 1>talked about, that they cannot use this threat of withholding

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<v Speaker 1>our chips from an O E M in order to

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<v Speaker 1>extract the High Royalty that it's extracting that it needs

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<v Speaker 1>to separate out those negotiations. Would that hurt Qualcom's business model?

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<v Speaker 1>You know, it's really hard to say that there, there's

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<v Speaker 1>a bigger piece. I think that that, if implemented, would

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<v Speaker 1>hurt Qualcom's business model more. And that piece is what

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<v Speaker 1>we haven't talked about yet. Um that the that the

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<v Speaker 1>FTC has wants an order requiring Qualcom to license not

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<v Speaker 1>just the O E M s the makers of the

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<v Speaker 1>phone like Samsung and Apple, but also chip rivals like

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<v Speaker 1>Media Tech and Intel. Up till now, Qualcom hasn't done that.

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<v Speaker 1>And what they claim is that's an inefficient way of

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<v Speaker 1>doing things. And it's unclear yet how that might affect

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<v Speaker 1>their royalty streams if they have to do that, but

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<v Speaker 1>it could affect their business model. Sometimes, even after a trial,

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<v Speaker 1>there is a settlement before the judge, especially before the

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<v Speaker 1>judges order comes in or before a verdict by a jury.

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<v Speaker 1>Is that likely here? I don't think it's likely, but

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<v Speaker 1>I think it could happen. We know that the parties

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<v Speaker 1>have been discussing settlement. They acknowledged as such before this

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<v Speaker 1>trial start. Did at one point they even sought to

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<v Speaker 1>stay in order to talk settlement and the judge refused it.

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<v Speaker 1>The issue I think that could hurt settlement talks now

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<v Speaker 1>is that the FTC. I think believes they have momentum

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<v Speaker 1>here and believes they did really great job in trial

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<v Speaker 1>and have to have a possibility of winning. So they've

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<v Speaker 1>gained a little leverage in these negotiations. But it's it's uh,

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<v Speaker 1>it could happen. Now. We know that Makon del Rahim,

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<v Speaker 1>who is the head of the Anti trust division at

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<v Speaker 1>the d o J, has been vocal about the fact

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<v Speaker 1>that he doesn't think this type of case should be

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<v Speaker 1>brought resolve with the antitrust laws. This is brought by

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<v Speaker 1>the FTC. So there's sort of a disconnect there. Explain

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<v Speaker 1>the positions a little bit. You know, it's an interesting

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<v Speaker 1>thing and I think there's a lot of debate in

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<v Speaker 1>the antitrust community about this because in a big picture

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<v Speaker 1>policy um level, the thought is that when you hamper um,

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<v Speaker 1>they when a company has I P and they've done

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<v Speaker 1>the R and D and put the money into the

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<v Speaker 1>R and D and they've obtained a patent, they have

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<v Speaker 1>the right to to get the benefit of that patent.

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<v Speaker 1>They have the right to charge what they want to

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<v Speaker 1>in terms of royalties and do what they want to

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<v Speaker 1>with that patent, and that intern will fund the R

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<v Speaker 1>and D in innovation and so there's a fear that

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<v Speaker 1>if you use antitrust to sort of mess up this equilibrium,

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<v Speaker 1>that it could hamper innovation. And del Rahim generally believes

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<v Speaker 1>anti trust should support innovation and not hamper innovation, and

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<v Speaker 1>and that these patent rights perhaps ought to have some

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<v Speaker 1>precedence over antitrust, and that you could resolve these matters

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<v Speaker 1>as a matter of contract law. Jennifer Ree always makes

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<v Speaker 1>anti trust interesting. That's Bloomberg Intelligent senior litigation analyst Jennifer

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<v Speaker 1>Ree from more of gent analysis. You can go to

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<v Speaker 1>b I go on the Bloomberg terminal