“The View From the Corner of U.S. Competition Law and Patents” INJUNCTIONS AND FLEXIBILITY IN PATENT LAW – CIVIL LAW AND COMMON LAW PERSPECTIVES Ludwig maximilian university Munich APRIL 4-5, 2019 INJUNCTIONS AND FRAND “The View From the Corner of U.S. Competition Law and Patents” Judge James L. Robart United States District Court for the Western District of Washington

“The View From the Corner of U.S. Competition Law and Patents” The Old World Established United States Law on Injunctions: eBay Inc. v. MercExchange, LLC, 547 U.S. 388 (2006) Established United States Law on FRAND: Ericsson, Inc. v. D-Link Systems, Inc., 773 F.3d 1201 (Fed. Cir. 2014) Combined together have not significantly changed the standards set out in eBay for injunctions in FRAND cases. The Standard Setting Organizations respond – IEEE restrictions on seeking injunctions.

“The View From the Corner of U.S. Competition Law and Patents” The New U.S. Order “While I believe in a very restrained approach to antitrust enforcement when it comes to the legitimate exploitation of valid IP rights, the [Antitrust] Division will not hesitate to enforce against anticompetitive collusive conduct . . . .” Makan Delrahim Assistant Attorney General, Antitrust Division U.S. Department of Justice April 10, 2018

“The View From the Corner of U.S. Competition Law and Patents” The Developing Story Saint Lawrence Communications LLC v. Motorola Mobility LLC, No. 2:15-CV-351-JRG, 2018 WL 915125 (E.D. Tex. Feb. 15, 2018) (Judge Rodney Gilstrap) Saint Lawrence demanded Motorola take a worldwide license to its 3G patents, which were part of a W-CDMA patent pool. Motorola preferred bilateral negotiations and accused Saint Lawrence of patent misuse, including the threat of injunctive relief in Germany. Judge Gilstrap rejected the patent misuse defense to the FRAND claim. Several commentators suggest that the takeaway from this decision is that competition law claims may not prevail against traditional patent licensing and enforcement strategies.

“The View From the Corner of U.S. Competition Law and Patents” The Developing Story Federal Trade Commission v. Qualcomm Inc., No. 17-CV-00220-LHK, 2018 WL 5848999 (N.D. Cal. Nov. 6, 2018) (Judge Lucy Koh) The Federal Trade Commission (“FTC”) is a federal competition law agency, which is independent of the Antitrust Division of the Department of Justice. It sued Qualcomm alleging that Qualcomm’s licensing practices for SEPs were anticompetitive. On November 6, 2018, the court granted the FTC’s motion for summary judgment and held that Qualcomm was required to license its SEP’s to competing chip manufacturers on FRAND terms. The trial considering that Qualcomm has a monopoly is now completed pending decision before Judge Koh.

“The View From the Corner of U.S. Competition Law and Patents” The Developing Story Huawei Technologies, Co. v. Samsung Electronics Co. In December 2018, the U.S. Court of Appeals for the Federal Circuit held argument on trial court Judge William Orrick’s decision to put a Chinese court’s injunction on hold in Huawei Technologies, Co. v. Samsung Electronics Co. Huawei brought suits in California and China on basically the same day. The Chinese litigation (Shenzen Province) moved quickly and an injunction issued. Samsung moved to block it, which was granted by the California judge. The Federal Circuit panel has not ruled, but their questioning did not seem supportive of Samsung.

“The View From the Corner of U.S. Competition Law and Patents” Evolution of SEP Law and FRAND Royalty Rates Georgia-Pacific Factors in the Context of FRAND Unwired Planet FRAND Under Traditional Contract Law