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Three decisions due on Friday (9/25): FTC v. Qualcomm (en banc petition?); EU "state aid" case against Apple/Ireland (further appeal?); Nokia v. Daimler

By sheer coincidence, three decisions will become known on Friday (September 25) in cases that this blog has previously discussed but which are otherwise unrelated. In two of those cases, competition authorities have to decie whether to turn things around after losing the first appellate decision. In one case, there would definitely be a way, but might not be the political win to keep fighting; in the other case, there would undoubtedly be a will, but there may not be a promising way. Furthermore, a German court will announce a decision on an automotive patent infringement complaint with major antitrust implications.

  1. The United States Federal Trade Commission (FTC) is now approaching the 45-day deadline for a potential petition for a rehearing en banc of a three-judge panel’s appellate ruling in Qualcomm’s favor.

    Given the high profile of the case, many Ninth Circuit judges might be interested in taking a closer look at the case. But the Republican majority of commissioners (3 vs. 2) has in the past supported Qualcomm, as has the Republican federal government. FTC chairman Joseph Simons recused himself from the case earlier on, but is no longer recused, enabling him to cast the decisive vote (assuming it’s still a 2-2 tie between the other commissioners). Car makers and various other technology companies wrote an open letter to the FTC, urging the agency to bring that petition. While the more likely outcome is still that the Republican majority wants to let Qualcomm off the hook, institutional considerations would weigh in favor of a petition for a rehearing, given that the Ninth Circuit panel that decided the case has the potential to complicate antitrust enforcement way beyond the Qualcomm case.

  2. With respect to whether there’s a will and a way, it’s precisely the opposite outlook in Europe, where Ireland and Apple defeated the European Commission’s competition chief Margrethe Vestager in the EU’s General Court (formerly known as Court of First Instance).

    The Commission’s 13-billion euro decision was deficient, self-contradictory, and hard to reconcile with the Commission’s acceptance of special tax rules in other parts of Europe that do look like state aid at first sight.

    Mrs. Vestager’s concerns are understandable, but if all of you have is a hammer, everything looks like a nail, and her hammer was competition law (in this case, state aid law). There is a problem, but it has to do with the fundamentally flawed architecture of the EU’s Single Market. It would have to be solved politically, but realistically won’t be. None of those structural issues makes a made-up “state aid” case any more meritorious, though.

    There’s no doubt Mrs. Vestager and many others in the European Commission would want to appeal the EU General Court’s decision to the Court of Justice of the EU (CJEU). But here’s the problem: they’d have to raise a question of law, not fact, and the EU General Court found that the Commission simply lacked the facts to back up its ruling.

  3. Also on Friday, the 21st Civil Chamber of the Munich I Regional Court plans to hand down a decision (which may or may not be a final–though it would be appealable–judgment) in a Nokia v. Daimler case (case no. 21 O 3891/19) over German patent DE60240446C5 on a “hybrid automatic repeat request (HARQ) scheme with in-sequence deliver of packets”). At the late-July trial, the court did not indicate any particular inclination. Daimler disputes the essentiality of the patent-in-suit, its validity, and raised a FRAND defense–all in all, three major hurdles for Nokia to overcome or it will fail to obtain the injunction it’s seeking. But Munich is a hotbed for patent–and increasingly also for SEP–litigation. Another panel of judges of the same court just granted Sharp an injunction against Daimler.

    The same panel that will announce the aforementioned decision on Friday will hear another SEp case against Daimler on Wednesday. In practical terms, it’s another Nokia v. Daimler case, though the plaintiff is Conversant Wireless, a patent troll asserting former Nokia patents against the Mercedes maker. The patent-in-suit to be discussed on Wednesday is EP2934050 on an “apparatus and method for providing a connection.”

    Come November, the Dusseldorf Regional Court will presumably refer to the top EU court a set of legal questions regarding the licensing of SEPs to component makers. The regional appeals courts in other parts of the country may also be hesitant to enjoin Daimler while its suppliers are more than willing to take exhaustive component-level licenses on FRAND terms, at least at a time when the CJEU will be looking into this. But in the meantime, Nokia and its trolls are still trying hard to obtain injunctions against Daimler. Also, Wednesday’s patent-in-suit is being asserted by Conversant against Tesla in Mannheim.

    In light of those circumstances making the case more relevant than I’d have thought back when it was filed, I may attend and report on the Wednesday trial. I hope the 21st Civil Chamber will take the necessary measures to prevent coronavirus preventions. On Sunday, a regional government agency reporte that COVID-19 infections are on the rise again in Munich, with 55.6 infections per 100,000 inhabitants over the course of the past seven days (approximately 2.5 times the statewide average). The minister of health of the state of Bavaria rebuked the local soccer club’s leadership for sitting next to each other in an otherwise empty stadium last Friday–and that was an open-air event, unlike a patent trial.

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View the original article here: Three decisions due on Friday (9/25): FTC v. Qualcomm (en banc petition?); EU "state aid" case against Apple/Ireland (further appeal?); Nokia v. Daimler

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