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Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 1 of 4

1 Jennifer Milici, D.C. Bar No. 987096


Joseph R. Baker, D.C. Bar No. 490802
2 Geoffrey M. Green, D.C. Bar No. 428392
3 Rajesh James, N.Y. Bar No. 4209367
Daniel Matheson, D.C. Bar No. 502490
4 Kenneth H. Merber, D.C. Bar No. 985703
Mark J. Woodward, D.C. Bar No. 479537
5 Federal Trade Commission
600 Pennsylvania Avenue, N.W.
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Washington, D.C. 20580
7 (202) 326-3695; (202) 326-3496 (fax)
jmilici@ftc.gov
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Attorneys for Plaintiff Federal Trade Commission
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10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

12 SAN JOSE DIVISION

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14 FEDERAL TRADE COMMISSION, Case No. 5:17-cv-00220-LHK-NMC
Plaintiff
15 FEDERAL TRADE COMMISSION’S
RESPONSE TO BRIEF OF AMICUS
16 v. CURIAE NOKIA TECHNOLOGIES
REGARDING FTC’S MOTION FOR
17 PARTIAL SUMMARY JUDGMENT

18 QUALCOMM INCORPORATED, a Delaware Date: October 18, 2018


Corporation, Time: 1:30 p.m.
19 Defendant. Courtroom: 8, 4th Floor
Judge: Hon. Lucy H. Koh
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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES


REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. 17-cv-00220-LHK-NMC
Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 2 of 4

1 Amicus Nokia Technologies (“Nokia”) does not present any argument regarding the plain
2 language of the two IPR policies that are the subject of the FTC’s motion for partial summary
3 judgment. Nor does Nokia—which previously informed the European Commission that
4 Qualcomm’s FRAND obligations required Qualcomm to license rival modem-chip suppliers 1—
5 present evidence that the industry has always believed the opposite to be true. Nokia does,
6 however, make sweeping and unsubstantiated policy claims regarding the potential consequences
7 of construing the ATIS and TIA IPR policies according to their plain language. Nokia
8 misconstrues the FTC’s motion. The motion asks the Court to interpret the plain language of
9 Qualcomm’s commitments under the IPR policies as written, pursuant to California contract law,
10 not to determine what FRAND means in the abstract or to declare how SSOs ought to draft their
11 IPR policies.
12 Nokia’s arguments miss the mark in other ways. Contrary to Nokia’s suggestion, the FTC
13 does not contend that Qualcomm’s commitments to ATIS and TIA compel Qualcomm to license
14 modem-chip rivals and to refrain from licensing handset manufacturers. Instead, these
15 commitments require Qualcomm to “make licenses available” to modem-chip suppliers that
16 request such licenses. (FTC Mot., ECF No. 792, at 1.) If Qualcomm’s anticompetitive conduct is
17 addressed and remedied, market forces will decide whether modem-chip or handset-level
18 licensing (or some combination of the two) is most efficient. 2
19 Nokia suggests that construing the ATIS and TIA IPR policies according to their plain
20 meaning is unnecessary because “component manufacturers . . . have access to any SEPs they
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Reply Ex. 25, at 46 (Nokia Complaint Against Qualcomm Inc., Feb. 13, 2006) (representing to
23 the European Commission that Qualcomm’s termination of Texas Instruments’ license “would
breach Qualcomm’s duty to license on FRAND terms, after having induced SSOs to base the
24 CDMA and UMTS/WCDMA standards on Qualcomm’s technology”); id. (describing
25 Qualcomm’s commitments as “unequivocal” in this regard).
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That said, Qualcomm has claimed that modem-chip-level licensing is efficient—at least when
26 the licensee is Qualcomm itself. (Opp. at 10 n.3.) If Qualcomm’s efficiency claims are valid,
27 similar efficiencies may arise from other modem-chip suppliers licensing Qualcomm’s cellular
SEPs on FRAND terms.
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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES
REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. 17-cv-00220-LHK-NMC
Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 3 of 4

1 might require through the ‘have made’ rights granted to the sellers of . . . end user products.”
2 (Nokia Br. at 8.) Nokia’s argument does not find support in the ATIS and TIA policies
3 themselves. 3 Moreover, the “long-standing practice” (id.) of a non-party that “primarily declares
4 its patents through ETSI” (id. at 2) is not a reason for the Court to depart from the plain language
5 of the ATIS and TIA policies.
6 Finally, according the ATIS and IPR policies their plain meaning would not create a
7 “patchwork of confusing requirements” (id. at 9), even if one assumed that those policies differ
8 from IPR policies adopted by other 3GPP or 3GPP2 organizational partners. 4 SEP holders
9 choose the organizational partners to whom they make FRAND commitments, 5 and those
10 voluntary commitments are international, not regional, in scope. 6 In any event, Nokia’s argument
11 has no bearing on the proper interpretation of FRAND commitments that Qualcomm has already
12 made through ATIS and TIA.
13 For the reasons stated above, Nokia’s arguments should be rejected and the FTC’s motion
14 granted.
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19 Even the ETSI IPR policy, on which Nokia generally relies, provides a licensed handset
manufacturer the right to “have made customized components . . . to the licensee’s own design,”
20 Nokia Br. at 3–4 (emphasis added), but does not protect unlicensed suppliers that develop
modem chips of their own design. Cf. Intel Corp. v. Broadcom Corp., 173 F. Supp. 2d 201, 233
21 (D. Del. 2001).
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The FTC does not concede that construing the ATIS and TIA policies according to their plain
language would create any inconsistency among relevant IPR policies. While not the subject of
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the FTC’s motion, the ETSI IPR policy also requires Qualcomm to make licenses available to
24 modem-chip competitors—as Nokia itself has asserted in the past. (FTC Mot. at 2 n.5; FTC
Reply at 13 n.35 & 15 n.42.)
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See, e.g., Nokia Br. at 2 (“Nokia primarily declares its patents through ETSI”).
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Mot. Ex. 29 (Letter from Thomas Rouse, Qualcomm, to Thomas Goode, ATIS General
27 Counsel, July 23, 2012 (committing to license patents granted not only in the United States, but
also in a host of other countries)).
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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES
REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. 17-cv-00220-LHK-NMC
Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 4 of 4

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Respectfully submitted,
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3 /s/ Jennifer Milici
Dated: October 11, 2018 JENNIFER MILICI
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JOSEPH R. BAKER
5 GEOFFREY M. GREEN
RAJESH JAMES
6 DANIEL MATHESON
7 KENNETH H. MERBER
MARK J. WOODWARD
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Attorneys for Plaintiff Federal Trade
9 Commission
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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES
REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Case No. 17-cv-00220-LHK-NMC