Antitrust and Unfair Competition Law
Competition: Spring 2021, Vol 31, No. 1
Content
- A Conversation About Diversity, Racism and Equality In the Legal Profession
- A Conversation With California Supreme Court Justice Joshua P. Groban
- Big Antitrust Trial: Newyork v. Deutsche Telekom Ag (S.D.N.Y.)
- Chair's Column
- Damage Methodology Trends Within False Advertising and Product Defect Class Actions
- Diversity and Inclusion In the Legal Profession: a Missed Opportunity For the Antitrust Practice
- Editor's Notes
- Masthead
- Perspectives On the Role of Antitrust Law In Social Justice
- Recent Developments In California Competition and Privacy Law
- Recent Developments In Federal Antitrust Law
- The Correlation Between Antitrust Enforcement and Gender Equality
- Antitrust Analysis of Frand Licensing Post-ftc v. Qualcomm
ANTITRUST ANALYSIS OF FRAND LICENSING POST-FTC v. QUALCOMM
By Aminta Raffalovich and Steven Schwartz1
A great deal of recent attention is being paid to the Ninth Circuit’s decision in Federal Trade Commission ("FTC") v. Qualcomm.2 On one side of the debate are those, like the FTC and various amici, who reject the view expressed by the Ninth Circuit and consider the licensing behavior by Qualcomm as a quintessential antitrust violation. That argument views Qualcomm’s licensing behavior as a blatant example of the illegal exercise of monopoly power.
On the other side of the debate are those, like the Antitrust Division of the Department of Justice and still other amici, who decry the District Court’s decision3 as an inappropriate extension of the antitrust laws into a non-antitrust arena and applaud the Ninth Circuit’s decision as drawing reasonable boundaries around the application of antitrust laws.
What complicates the assessment of the decision in Qualcomm is the context in which the behavior at issue occurs. The patent overhang and, in particular, the standard-setting and essential-patent context make the analysis different—and arguably more challenging—than a typical analysis of pricing or licensing behavior in a vertical setting.