throbber
Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 1 of 26
`
`No. 19-16122
`
`
`IN THE
`United States Court of Appeals for the Ninth Circuit
`
`
`
`FEDERAL TRADE COMMISSION,
`
`Plaintiff-Appellee,
`
`v.
`
`QUALCOMM INCORPORATED, A DELAWARE CORPORATION,
`Defendant-Appellant.
`
`SAMSUNG ELECTRONICS COMPANY, LTD.; SAMSUNG SEMICONDUCTOR INC.;
`INTEL CORPORATION; ERICSSON, INC.;
`SAMSUNG ELECTRONICS AMERICA, INC.; MEDIATEK INC.,
`Intervenors,
`
`
`NOKIA TECHNOLOGIES OY; INTERDIGITAL, INC.,
`
`Intervenors.
`
`
`
`On Appeal from the United States District Court
`for the Northern District of California
`No. 5:17-CV-00220
`Hon. Lucy H. Koh
`
`
`BRIEF OF AMICI CURIAE
`CONTINENTAL AUTOMOTIVE SYSTEMS, INC.,
`DENSO CORPORATION, AMERICAN HONDA MOTOR CO., INC.,
`TOYOTA MOTOR CORPORATION, AND TESLA, INC.,
`IN SUPPORT OF THE PETITION FOR REHEARING EN BANC
`
`
`
`Joseph R. Kolker
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`John (“Jay”) Jurata, Jr.
`Emily Luken
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street, NW
`Washington, DC 20005
`
`Counsel for Amici Curiae
`
`
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 2 of 26
`
`CORPORATE DISCLOSURE STATEMENT
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
`
`curiae Continental Automotive Systems, Inc. states as follows:
`
`1. Continental Automotive Systems, Inc. is wholly owned by
`
`Continental Automotive, Inc. Continental Automotive, Inc. is wholly-
`
`owned by Continental Automotive Holding Netherlands B.V., which is
`
`wholly-owned by CGH Holding B.V., which is wholly-owned by CAS-
`
`One Holdinggesellschaft mbH, which is wholly-owned by Continental
`
`Caoutchouc-Export-GmbH, which is owned 51% by Continental
`
`Automotive GmbH and 49% by Continental A.G.
`
`2. No publicly held company owns 10% of more of Continental
`
`Automotive Systems, Inc. However, Continental Automotive Systems,
`
`Inc. is an indirect subsidiary of Continental A.G., a German public
`
`corporation.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
`
`curiae DENSO CORPORATION states as follows:
`
`DENSO CORPORATION is a publicly traded Japanese
`
`corporation. DENSO CORPORATION has no parent company. 10% or
`
`i
`
`

`

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`more of the stock of DENSO CORPORATION is held by Toyota Motor
`
`Corporation, a Japanese public company.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
`
`curiae American Honda Motor Co., Inc. states as follows:
`
`American Honda Motor Co., Inc. is a wholly-owned subsidiary of
`
`Honda Motor Co., Ltd., a publicly-held company in Japan.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
`
`curiae Toyota Motor Corporation states as follows:
`
`Toyota Motor Corporation is a publicly traded Japanese
`
`corporation and has no parent corporation. No publicly traded
`
`corporation directly owns more than ten percent of its stock.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus
`
`curiae Tesla, Inc. states as follows:
`
`Tesla, Inc. is a publicly traded corporation, has no parent
`
`company, and no publicly held corporation owns 10% or more of Tesla,
`
`Inc.’s stock.
`
`
`
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`
`/s/ Jay Jurata
`John (“Jay”) Jurata, Jr.
`Counsel for Amici Curiae
`
`
`
`ii
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 4 of 26
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`TABLE OF CONTENTS
`
`
`
`
`
`Page
`
`CORPORATE DISCLOSURE STATEMENT............................................. i
`TABLE OF AUTHORITIES ...................................................................... iv
`INTEREST OF AMICI CURIAE ............................................................... 1
`INTRODUCTION ....................................................................................... 3
`ARGUMENT ............................................................................................... 6
`I.
`The En Banc Court Can, And Should, Reverse The
`Panel’s Holding That Qualcomm’s Refusal To License
`Its SEPs To Rivals Is Not Anticompetitive. ............................ 8
`A.
`The en banc Court has jurisdiction over the entire
`case. ................................................................................. 9
`SEP holders’ refusal to license chipmakers harms
`competition. ................................................................... 10
`II. The Downstream Harms Of Anticompetitive Behavior
`By SEP Holders Are Directly Intertwined With Harms
`To Chipmakers. ...................................................................... 14
`A. Anticompetitive behavior by SEP holders like
`Qualcomm leads to market inefficiencies. ................... 15
`B. Anticompetitive behavior by SEP holders like
`Qualcomm disincentivizes innovation throughout
`the supply chain. ........................................................... 18
`CONCLUSION ......................................................................................... 20
`CERTIFICATE OF COMPLIANCE
`
`
`B.
`
`iii
`
`

`

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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Apple Inc. v. Pepper,
`139 S. Ct. 1514 (2019) .......................................................................... 13
`Fernandez-Ruiz v. Gonzales,
`466 F.3d 1121 (9th Cir. 2006) .............................................................. 10
`Quanta Comput., Inc. v. LG Elecs., Inc.,
`553 U.S. 617 (2008) ................................................................................ 5
`Summerlin v. Stewart,
`309 F.3d 1193 (9th Cir. 2002) .......................................................... 9, 10
`Valerio v. Crawford,
`306 F.3d 742 (9th Cir. 2002) .................................................................. 9
`Statutes
`28 U.S.C. § 46(c).......................................................................................... 9
`
`
`iv
`
`

`

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`INTEREST OF AMICI CURIAE1
`Amici Continental Automotive Systems, Inc. and DENSO
`
`CORPORATION are automotive component companies known as “Tier
`
`One” manufacturers, meaning they make the highest-level components
`
`short of the automobile itself. These components connect to cellular
`
`networks, which enables automobile connectivity to the internet and
`
`thus supports a variety of features, including real-time vehicle location
`
`tracking.
`
`Amici American Honda Motor Co., Inc., Toyota Motor Corporation,
`
`and Tesla, Inc. are “downstream” original equipment manufacturers
`
`(“OEMs”) in the automotive industry, meaning they manufacture the
`
`cars that are sold directly to consumers. Their cars incorporate the
`
`components made by Tier One manufacturers, allowing them to provide
`
`consumers with internet-connected cars.
`
`In order to connect the components made by Tier One
`
`manufacturers to cellular networks, the Tier One amici’s business relies
`
`
`1 No counsel for a party authored this brief in whole or in part. No
`party, counsel for a party, or any person other than amici and their
`counsel made a monetary contribution to fund the preparation or
`submission of this brief. All parties have consented to the filing of this
`brief.
`
`1
`
`

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`on being able to obtain licenses to all standard-essential patents
`
`(“SEPs”) that are relevant to cellular networks on fair, reasonable, and
`
`nondiscriminatory (“FRAND”) terms. SEP holders themselves hold
`
`market power because standard-setting organizations (“SSOs”) adopt
`
`standards that require the use of the inventions claimed by those
`
`patent holders’ “standard essential” patents. In order for patent holders
`
`to have their inventions adopted by SSOs, they must agree to license
`
`their SEPs on FRAND terms. But as in the smartphone industry,
`
`cellular SEP holders refuse to license to chipmakers upstream, instead
`
`restricting their licensing in the automotive industry primarily to the
`
`manufacturers of automobiles (OEMs) and, in some limited cases, to
`
`Tier One and Tier Two manufacturers.
`
`While the Tier One amici are upstream of the OEM amici, both
`
`sets of amici are downstream of chipmakers. The patent holders’
`
`refusal to license at the level at which the SEPs are practiced (the chip
`
`level) creates various harms and inefficiencies throughout the
`
`automotive supply chain, with reverberating negative effects on
`
`consumers. Amici accordingly have a strong interest in the outcome of
`
`this case, and in ensuring that cellular SEP holders honor their
`
`2
`
`

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`obligations to make licenses available to all comers on FRAND terms.
`
`Therefore, amici encourage this Court to rehear the entirety of this case
`
`en banc, notwithstanding the Federal Trade Commission’s (“FTC”)
`
`decision to seek rehearing on only a subset of the panel’s decision.
`
`INTRODUCTION
`Amici Continental Automotive Systems, Inc. and DENSO
`
`CORPORATION are leading innovators and manufacturers of the
`
`components that enable connected cars. As Tier One component
`
`manufacturers, amici make the highest-level automotive components
`
`short of the cars themselves. Amici sit at the center of the automotive
`
`supply chain, sourcing parts from Tier Two suppliers who, as relevant
`
`here, include “module” makers. In the supply chain described in this
`
`brief—which bears some important similarities to the market at issue
`
`in FTC v. Qualcomm—those Tier Two module-makers themselves
`
`source components from the Tier Three suppliers who make the cellular
`
`chips. This graphic illustrates where the Tier One amici sit in the
`
`automotive supply chain:
`
`3
`
`

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`Tier 3 Suppliers
`(Chip Makers)
`
`Tier 2 Suppliers
`(Module Makers)
`
`Tier 1 Suppliers
`(Amici)
`
`Automobile OEMs
`(Amici)
`
`
`The Tier One amici design and manufacture one component that
`
`is relevant here, the “telematics control unit” (“TCU”). TCUs allow cars
`
`to connect to cellular networks, enabling emergency communications,
`
`entertainment, onboard diagnostics, software updates, and geolocation,
`
`among other functions. Because TCUs connect to cellular networks,
`
`Tier One amici must practice cellular SEPs. But many of those SEP
`
`holders have engaged in discriminatory licensing practices and, like
`
`Qualcomm, refuse to license their patents on FRAND terms to the
`
`chipmakers whose components practice the SEPs in the first instance.
`
`Many SEP holders prefer to license their patents as far
`
`downstream as possible to maximize revenues and avoid the doctrine of
`
`4
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`

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`“patent exhaustion,” under which “the initial authorized sale of a
`
`patented item terminates all patent rights to that item.” Quanta
`
`Comput., Inc. v. LG Elecs., Inc., 553 U.S. 617, 625 (2008). As the panel
`
`noted, “[d]ue to patent exhaustion, if Qualcomm licensed its SEPs
`
`further ‘upstream’ … to competing chip suppliers, then its patent rights
`
`would be exhausted when these rivals sold their products to OEMs.”
`
`Op. 13. Accordingly, OEMs would “have little incentive to pay
`
`Qualcomm for patent licenses, as they could instead become
`
`‘downstream’ recipients of the already exhausted patents embodied in
`
`these rivals’ products.” Id. 13-14. And as the district court found,
`
`“Qualcomm determined that it was far more lucrative to license only
`
`OEMs.” ER129.
`
`Amici American Honda Motor Co., Inc., Toyota Motor Corporation,
`
`and Tesla, Inc. are automobile OEMs that design and manufacture the
`
`cars sold to consumers. Their products contain TCUs built using
`
`components from further upstream suppliers that have the relevant
`
`knowledge and expertise to address cellular SEPs. But because SEP
`
`holders discriminatorily refuse to license these upstream suppliers—
`
`rivals at the chip level—the OEM amici are often forced to negotiate
`
`5
`
`

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`SEP licensing themselves, despite being three levels removed in the
`
`supply chain from the relevant component. For example, amicus Tesla,
`
`Inc. has been sued by multiple SEP holders for patent infringement,
`
`notwithstanding the fact Tesla has asked some of those entities to
`
`license its upstream components suppliers. As a result, Tesla is forced
`
`to negotiate its own licenses, rather than being able to rely on licenses
`
`from its suppliers.
`
`The SEP holders’ refusals to license cellular technologies on
`
`FRAND terms to chipmakers—who are responsible for producing the
`
`automotive components that first practice the SEPs—has led to harm to
`
`competition at the chip level, as well as intertwined harm downstream
`
`at the TCU and automobile level that ultimately raises prices for
`
`consumers and reduces innovation.
`
`ARGUMENT
`Amici join the FTC in urging this Court to rehear this case en
`
`banc. The panel decision made significant legal errors, detailed in part
`
`by the FTC’s petition for rehearing en banc. But amici submit this brief
`
`in order to explain, in real world terms, why the panel decision’s
`
`blessing of Qualcomm’s anticompetitive conduct poses significant
`
`6
`
`

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`threats to competition, consumer welfare, and innovation in a different,
`
`but related, industry in which Qualcomm similarly holds a dominant
`
`position.
`
`By formalistically attempting to “slice and dice” the FTC’s claims
`
`into a set of supposed unrelated claims about harms to competitors
`
`upstream and harms to consumers and OEMs downstream, the panel
`
`decision failed to appreciate how anticompetitive behavior by SEP
`
`holders like Qualcomm causes intertwined harm for both upstream and
`
`downstream manufacturers in technology industries. While some of the
`
`harms caused by SEP holders’ abuse of their monopolies fall on Tier
`
`Three chip manufacturers, Tier One manufacturers and OEMs in the
`
`automotive industry face multiple interrelated harms as a result of that
`
`conduct. Ultimately, all of those harms to different parts of the supply
`
`chain result in higher prices and less innovation for consumers, who are
`
`the ultimate beneficiaries of antitrust law.
`
`Specifically, the panel decision made two critical errors. First, the
`
`panel dismissed outright the existence of upstream harms caused by
`
`Qualcomm’s refusal to license their patents to chipmakers, disregarding
`
`contrary evidence in the record and the well-supported findings of the
`
`7
`
`

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`district court. As Tier One amici explain, their own experience shows
`
`how SEP holders’ refusal to license chipmakers distorts competition at
`
`the chip level.
`
`Second, the panel erroneously characterized downstream harms to
`
`OEMs and consumers as unrelated to the relevant antitrust market
`
`upstream. But amici explain why even harms that first hit OEMs
`
`downstream reverberate throughout the supply chain, and ultimately
`
`result in increased prices and reduced innovation for consumers.2
`
`I.
`
`The En Banc Court Can, And Should, Reverse The Panel’s
`Holding That Qualcomm’s Refusal To License Its SEPs To
`Rivals Is Not Anticompetitive.
`The FTC does not seek rehearing on the entirety of the panel
`
`decision. However, that choice by a party does not limit the jurisdiction
`
`of the en banc Court, which has discretion to address the entire case or
`
`
`2 There are some differences between the supply chain described in this
`brief and the mobile phone supply chain at issue in FTC v. Qualcomm.
`While both chains involve chipmakers upstream and OEMs
`(smartphone and car makers) downstream, the automobile supply chain
`for internet-connected cars also includes module makers (Tier Twos)
`and TCU makers (Tier Ones) in between the chip level and the OEM
`level. Yet in both cases, critically, cellular SEP holders refuse to license
`to chipmakers, who produce the component that is furthest upstream in
`both chains, and instead seek to license their patents on non-FRAND
`terms as far downstream as possible.
`
`8
`
`

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`any part thereof. Amici urge the Court to grant rehearing en banc, and
`
`in addition to the relief sought by the FTC, vacate the panel’s holding
`
`that the Sherman Act permits SEP holders to refuse to license their
`
`patents to their direct competitors, notwithstanding earlier FRAND
`
`promises that conferred market power on their patents.
`
`A. The en banc Court has jurisdiction over the entire
`case.
`The panel held that “Qualcomm’s alleged breach of its SSO
`
`commitments to license its SEPs on FRAND terms” did not “amount[] to
`
`anticompetitive conduct in violation of § 2.” Op. 40. Although the FTC
`
`does not seek rehearing on the panel’s holding on the refusal to license
`
`claim,3 the en banc Court is empowered to, and should, address this
`
`important issue.
`
`If this Court grants rehearing en banc, “the en banc panel
`
`assumes jurisdiction over the entire case.” Summerlin v. Stewart, 309
`
`F.3d 1193, 1193 (9th Cir. 2002) (citing 28 U.S.C. § 46(c)). And so, when
`
`rehearing a case en banc, this Court has previously addressed claims
`
`raised by amici. See, e.g., Valerio v. Crawford, 306 F.3d 742, 758 (9th
`
`
`3 See Petition for Rehearing (Dkt. 256) at 9 n.5.
`
`9
`
`

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`Cir. 2002) (en banc) (adopting argument raised only by amici). Should
`
`this Court grant rehearing en banc, it therefore may properly reach
`
`claims raised by amici, or which the Court determines are otherwise
`
`appropriate for disposition by the en banc Court. Because “an en banc
`
`court takes a case, not an issue, en banc, it has the discretion to decide
`
`the entire case or only the parts of the case that formed the basis for the
`
`en banc call.” Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1135 (9th
`
`Cir. 2006) (en banc) (citing Summerlin, 309 F.3d at 1193).
`
`B. SEP holders’ refusal to license chipmakers harms
`competition.
`The district court correctly found that “Qualcomm’s practice of
`
`refusing to license its cellular SEPs to rival modem chip suppliers” had
`
`the effect of “promot[ing] rivals’ exit from the market, prevent[ing]
`
`rivals’ entry, and delay[ing] or hamper[ing] the entry and success of
`
`other rivals.” ER115. Specifically, the court noted, “[w]ithout a license
`
`to Qualcomm’s SEPs, a rival cannot sell modem chips with any
`
`assurance that Qualcomm will not sue the rival and its customers for
`
`patent infringement,” id., which allows Qualcomm to demand supra-
`
`FRAND royalty rates.
`
`10
`
`

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`Notwithstanding these clear and amply-supported findings, the
`
`panel mischaracterized the district court’s findings as only identifying
`
`harm to customers and harm to competitors, but not harm to
`
`“competition itself.” Op. 37. Disregarding the factual findings of the
`
`district court—which the panel was required to review only for clear
`
`error4—the panel held on this basis that Qualcomm’s “breach of its SSO
`
`commitments to license its SEPs on FRAND terms” did not “amount[] to
`
`anticompetitive conduct in violation of § 2” of the Sherman Act. Op. 40.
`
`While the district court made its findings in the context of the
`
`cellphone industry, the experience of amici demonstrates that SEP
`
`holders’ refusal to license chipmakers on FRAND terms harms
`
`competition at the chip level in other technology industries as well.
`
`Amici can attest that Qualcomm and other SEP holders’ refusal to
`
`license their patents to rival chipmakers has had the effect of
`
`“prevent[ing] rivals’ entry, and delay[ing] or hamper[ing] the entry and
`
`success of other rivals,” as described by the district court in its
`
`unchallenged factual findings. ER115. While Tier One amici would
`
`
`4 Notably, outside of the standard of review section and a quote of the
`FTC’s brief, the phrase “clear error” does not appear anywhere in the
`56-page slip opinion.
`
`11
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`

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`welcome the opportunity to deal with other chipmakers, Qualcomm’s
`
`anticompetitive conduct has made doing so effectively impossible.
`
`Take two examples: The district court found that Qualcomm’s
`
`refusal to license its rival MediaTek “suppressed MediaTek’s revenues
`
`and prevented MediaTek from being able to fund research and
`
`development for future generations of modem chips.” ER115. Because
`
`of MediaTek’s inability to invest sufficiently in research and
`
`development, the chipmaker has been unable to offer Tier One amici
`
`mid-to-high end capable baseband processors, which are used in
`
`automobile components. Similarly, the district court found that
`
`Qualcomm’s refusal to license the Project Dragonfly modem chip
`
`“prevented Project Dragonfly from ever entering the modem chip
`
`market” entirely. ER117. Indeed, Qualcomm denied Samsung a license
`
`merely because Samsung was a member of Project Dragonfly, “out of
`
`fear that Samsung could enable Project Dragonfly to become a
`
`competitor.” ER118. As a result of Qualcomm’s kneecapping of
`
`multiple potential competitors, Tier One amici remain effectively locked
`
`into buying chips from only Qualcomm.
`
`12
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`

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`This market distortion at the chip level leads invariably to higher
`
`prices for end users, i.e., consumers of both cellphones and cars. While
`
`the effects of artificially constrained competition at the chip level may
`
`be borne initially by Tier Two module manufacturers (because they
`
`purchase the chips), the highly competitive nature of the automotive
`
`industry results in those artificially high chip prices being passed on to
`
`Tier Ones, OEMs, and ultimately consumers. That is the classic
`
`example of antitrust harm. See, e.g., Apple Inc. v. Pepper, 139 S. Ct.
`
`1514, 1525 (2019) (noting that since the enactment of the Sherman Act,
`
`“protecting consumers from monopoly prices has been the central
`
`concern of antitrust” (internal quotations and citation omitted)).
`
`Nor does potential liability under contract law alleviate this
`
`market distortion. Although the panel decision assumed that the
`
`remedy for a SEP holder’s refusal to abide by its FRAND contractual
`
`obligations lies in contract, many SEP holders insist that there is no
`
`contractual requirement to license upstream. While amici strongly
`
`disagree with SEP holders’ arguments regarding the scope of their
`
`FRAND obligations, the fact that SEP holders like Qualcomm advance
`
`this legal position in other contexts makes clear why this Court should
`
`13
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`not accept at face value any argument by Qualcomm (or SEP holder
`
`amici) that the panel correctly decided this question.
`
`Notwithstanding the FTC’s decision to only seek rehearing
`
`regarding Qualcomm’s “no license, no chips” policy, this Court should
`
`exercise its jurisdiction to reverse the panel’s holding that Qualcomm’s
`
`refusal to license its competitors is not anticompetitive as well. Should
`
`this Court reverse the panel on “no license, no chips” while declining to
`
`reach the “refusal to license,” Qualcomm’s anticompetitive behavior is
`
`likely to continue unabated, with little practical remedy for adversely
`
`affected industries and consumers.
`
`II. The Downstream Harms Of Anticompetitive Behavior By
`SEP Holders Are Directly Intertwined With Harms To
`Chipmakers.
`While the panel decision failed entirely to understand the real
`
`world harms that result upstream as a result of anticompetitive
`
`behavior by SEP holders in the cellphone industry, it also dismissed the
`
`harms faced by consumers and downstream manufacturers as a result
`
`of the same and related behavior. The panel decision held that
`
`downstream harms were legally irrelevant because they fall “outside
`
`the relevant antitrust markets.” Op. 49. But this formalistic approach
`
`14
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`ignores the fact that the harms downstream manufacturers face are
`
`intimately interwoven with the harms facing upstream chipmakers.
`
`These intertwined harms lead to both market inefficiencies and reduced
`
`innovation, with many of the costs ultimately borne by the consumer.
`
`A. Anticompetitive behavior by SEP holders like
`Qualcomm leads to market inefficiencies.
`In the automotive industry, like in the cellphone industry, SEP
`
`holders refuse to license chipmakers upstream. Instead, they use their
`
`SSO-conferred market power to insist that they will only license
`
`downstream to OEMs (and in some cases, to Tier One and Tier Two
`
`manufacturers). SEP holders’ refusal to license chipmakers upstream
`
`imposes multiple burdens on OEMs that create artificial inefficiencies
`
`throughout the entire supply chain.
`
`For example, OEMs (and, to a lesser extent, Tier Ones) are forced
`
`to hire and add or otherwise occupy engineering resources duplicative of
`
`their upstream suppliers, in order to properly evaluate and value the
`
`SEPs at issue. Forcing OEMs to become technical experts in upstream
`
`components at a granular level reduces many of the efficiencies that
`
`come from a vertically disintegrated supply chain. While chipmakers
`
`and other manufacturers upstream of OEMs at least have some
`
`15
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 21 of 26
`
`familiarity with the inventions in question (at varying degrees), OEMs
`
`are the point in the supply chain that is farthest removed from the
`
`inventions, and have the least existing understanding of the nature and
`
`incremental value of the SEPs. But because OEMs are also the point of
`
`the supply chain that is most affected by and most vulnerable to an
`
`injunction—given the cost, complexity, and upfront investment that
`
`goes into producing a $35,000 car, as opposed to a $15 chip—OEMs are
`
`effectively forced to enter into licenses at inflated royalty rates. These
`
`costs are ultimately borne by consumers and the Tier One suppliers
`
`who owe indemnity to their customers.
`
`Moreover, licensing upstream would be far more efficient. That is
`
`so given the smaller number of suppliers upstream, the better
`
`understanding of products and patents by upstream suppliers, and the
`
`resulting better understanding of the value of the technology at issue.
`
`But consumers are deprived of the lower prices that such efficiencies
`
`would allow.
`
`Similarly, because of SEP holders’ refusal to offer licenses on
`
`FRAND terms to chipmakers, amici are forced to take on unnecessary
`
`transaction costs in order to obtain a license. The Tier One and OEM
`
`16
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 22 of 26
`
`amici are thus forced to become involved in multi-party indemnification
`
`disputes, all because SEP holders circumvented the FRAND promises
`
`upon which their SSO-conferred market power was predicated. If SEP
`
`holders licensed their patents to chipmakers on FRAND terms (as
`
`originally promised), then chipmakers and Tier One manufacturers
`
`would be able to price the cost of the SEP license into the component.
`
`Under those circumstances, OEMs and Tier Ones could simply buy a
`
`component wherein the SEP holders’ patent rights were exhausted,
`
`which would result in greater efficiency, predictability, and lower
`
`transaction costs for both OEMs and Tier One manufacturers. Instead,
`
`because of SEP holders’ anticompetitive behavior, manufacturers
`
`throughout the supply chain face artificially higher transaction costs
`
`that consumers ultimately pay.5
`
`
`5 To be clear, OEMs are willing to enter into licenses on FRAND terms.
`But since the OEMs have not been offered a license on FRAND terms,
`and the SEP owners are unwilling to negotiate those terms, OEMs must
`either accept the non-FRAND terms or look to their suppliers to resolve
`the dispute.
`
`17
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 23 of 26
`
`B. Anticompetitive behavior by SEP holders like
`Qualcomm disincentivizes innovation throughout the
`supply chain.
`Because the SEP holders have forced OEMs to, in effect, purchase
`
`components separately from SEP licenses, OEMs and Tier Ones alike
`
`are more reluctant to invest in innovation, given the constant threat of
`
`litigation by SEP holders. See ER115 (finding that as a result of
`
`Qualcomm’s “refus[al] to license its cellular SEPs to rival modem chip
`
`suppliers,” rival chipmakers “cannot sell modem chips with any
`
`assurance that Qualcomm will not sue the rival and its customers for
`
`patent infringement”).
`
`While cellular SEP holders use their leverage to extract surcharge
`
`royalties from OEMs or Tier Ones, in either case, Tier Ones often bear
`
`the cost of the surcharge. As discussed above, the panel decision
`
`assumed that because the royalties extracted by SEP holders are
`
`charged directly to OEMs, OEMs necessarily bear the cost. See Op. 36
`
`(holding that Qualcomm’s collection of a royalty surcharge only shows
`
`“alleged harm to OEMs, not rival chipmakers”). But the experience of
`
`amici demonstrates that is not so.
`
`18
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 24 of 26
`
`For example, after SEP holders use their monopoly position to
`
`extract a surcharge royalty from OEMs, OEMs often require the
`
`upstream Tier One manufacturers to indemnify those license fees. So
`
`while the royalties are imposed on OEMs by SEP holders, Tier One
`
`manufacturers are often left holding the bag. For example, amicus
`
`Continental Automotive Systems, Inc. has spent millions of dollars on
`
`litigation costs to intervene in multiple infringement lawsuits against
`
`its customers, as well as separate litigation to obtain a license for
`
`cellular SEPs on FRAND terms. This obviously imposes substantial
`
`unanticipated and unaccounted for costs on the Tier Ones, which in
`
`turn undermines their profitability and threatens their willingness to
`
`innovate, or even continue participating in the TCU market.
`
`In effect, when SEP holders refuse to license chipset
`
`manufacturers upstream, then the components sold to Tier Ones and
`
`OEMs become ticking time-bombs, waiting to explode as soon as the
`
`SEP holder demands its royalty. When the component supplier has
`
`promised indemnity and the OEM requires the component supplier to
`
`perform on that promise, then the suppliers bear the harm as described
`
`above. And when there is no indemnity obligation, or the supplier
`
`19
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 25 of 26
`
`refuses or is unable to perform on its indemnity promise, then the OEM
`
`itself faces substantial litigation risk and additional unanticipated
`
`costs.
`
`In either scenario, the uncertainty regarding royalties and
`
`litigation risk which flows from the SEP holders’ refusal to license
`
`upstream disincentivizes investment in downstream products and new
`
`applications of cellular SEPs, at both the supplier and automotive OEM
`
`level. And because connected cars offer innumerable safety and
`
`convenience innovations to consumers, consumers are once again
`
`harmed by the anticompetitive actions of SEP holders.
`
`CONCLUSION
`For the foregoing reasons, the Court should grant rehearing en
`
`banc.
`
`October 5, 2020
`
`Joseph R. Kolker
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`51 West 52nd Street
`New York, NY 10019
`
`
`
`Respectfully submitted,
`
`/s/ Jay Jurata
`John (“Jay”) Jurata, Jr.
`Emily Luken
`ORRICK, HERRINGTON &
` SUTCLIFFE LLP
`1152 15th Street, NW
`Washington, DC 20005
`
`Counsel for Amici Curiae
`
`
`
`20
`
`

`

`Case: 19-16122, 10/05/2020, ID: 11848155, DktEntry: 263, Page 26 of 26
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`Form 8. Certificate of Compliance for Briefs
`
`Instructions for this form: http://www.ca9.uscourts.gov/forms/form08instructions.pdf
`
`
`9th Cir. Case Number(s) 19-16122
`
`
`I am the attorney or self-represented party.
`
`
`
`This brief contains 3592
`
` words, excluding the items exempted
`
`by Fed. R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R.
`
`App. P. 32(a)(5) and (6).
`
`I certify that this brief (select only one):
`[ ] complies with the word limit of Cir. R. 32-1.
`[ ] is a cross-appeal brief and complies with the word limi

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