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No. 19-16122

United States Court of Appeals for the Ninth Circuit

FEDERAL TRADE COMMISSION,

Plaintiff – Appellee,
v.
QUALCOMM INCORPORATED, A DELAWARE CORPORATION,
Defendant – Appellant.
_____________________________

Appeal from the U.S. District Court

for the Northern District of California
The Honorable Lucy H. Koh (No. 5:17-cv-00220-LHK)
_____________________________

REPLY IN SUPPORT OF MOTION FOR PARTIAL STAY OF

INJUNCTION PENDING APPEAL
_____________________________

Gary A. Bornstein Thomas C. Goldstein

Yonatan Even Kevin K. Russell
CRAVATH, SWAINE & MOORE LLP Eric F. Citron
825 Eighth Avenue GOLDSTEIN & RUSSELL, P.C.
New York, NY 10019-7475 7475 Wisconsin Avenue, Suite 850
(212) 474-1000 Bethesda, MD 20814
Robert A. Van Nest (202) 362-0636
Eugene M. Paige
Cody S. Harris
Justina Sessions
KEKER, VAN NEST & PETERS LLP
633 Battery Street
San Francisco, CA 94111-1809
(415) 391-5400
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Willard K. Tom Richard S. Taffet

MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue NW 101 Park Avenue
Washington, DC 20004-2541 New York, NY 10178-0060
(202) 739-3000 (212) 309-6000
Geoffrey T. Holtz
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
(415) 442-1000

Counsel for Appellant Qualcomm Incorporated

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................ii 

INTRODUCTION ....................................................................................... 1 
ARGUMENT ............................................................................................... 5 
I.  QUALCOMM HAS RAISED SERIOUS LEGAL
QUESTIONS. .................................................................................... 5 
II.  QUALCOMM HAS SHOWN IRREPARABLE HARM
ABSENT A STAY. ............................................................................. 8 
III.  THE PUBLIC INTEREST FAVORS A STAY. ............................... 12 
CONCLUSION ......................................................................................... 14 

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TABLE OF AUTHORITIES

Page(s)

Cases

Aspen Skiing Co. v. Aspen Highland Skiing Corp.,

472 U.S. 585 (1985) ................................................................................ 5

John Doe 1 v. Abbott Labs.,

571 F.3d 930 (9th Cir. 2009) .............................................................. 7, 8

MetroNet Servs. Corp. v. Qwest Corp.,

383 F.3d 1124 (9th Cir. 2004) ................................................................ 5

Pac. Bell Tel. Co. v. linkLine Comms., Inc.,

555 U.S. 438 (2009) ........................................................................ 6, 7, 8

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INTRODUCTION

Qualcomm showed in its opening brief that the District Court’s

injunction rested on flawed antitrust theories that raise serious legal

questions on appeal. Mot. 1-2. Qualcomm further demonstrated that it

would suffer irreparable harm if forced to negotiate a web of new license

agreements with OEMs and chipmakers, especially under the cloud of

the District Court’s unsupported finding that Qualcomm’s royalty rates

are “unreasonably high.” Mot. 23-27. The United States has now stated

that the District Court’s “unprecedented” injunction “threatens

competition, innovation, and national security,” and urged that it be

stayed pending plenary review by this Court. U.S. Br. 1. Officers of two

federal Departments—the Department of Energy and the Department of

Defense—have warned that the injunction could irreparably damage our

national security if not stayed. This Court has granted stays in situations

far less dire, and less infused with public interest concerns, where

mandated changes to a party’s business practices could not be undone

following reversal on appeal. Mot. 2, 22-23 n.8.

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A core point that the FTC concedes in its opposition easily justifies

a stay.1 Qualcomm’s opening brief established that the District Court’s

conclusion that Qualcomm had an antitrust duty to offer exhaustive SEP

licenses to other chip suppliers was contrary to law. Mot. 14-17. The

FTC does not even attempt to defend the District Court’s conclusion that

an antitrust duty to deal exists.

But there is more. The FTC also denies that the District Court

faulted Qualcomm “simply for ‘[c]harging high prices,’” Opp. 8. But the

core of the FTC’s case, and the basis for the District Court’s injunction, is

the flawed theory that Qualcomm’s royalty rates are too high and those

high royalty rates operate as an anticompetitive “surcharge.” The

District Court’s injunction is designed to alter a business model that the

District Court believed to be too lucrative, by lowering royalty rates for

the use of Qualcomm’s technologies. The FTC gives the game away with

its repeated references to Qualcomm’s supposedly “inflated royalties.”

Opp. 1, 8, 14.

1 The FTC claims that Qualcomm must show that it is “likely to

succeed on the merits of the appeal.” Opp. 7. That is incorrect. See Mot.
14. But as detailed below, Qualcomm readily clears the higher bar of
showing a likelihood of success.

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Qualcomm also debunked the FTC’s tortured theory that

Qualcomm’s royalties function as a “surcharge” that squeezes the

margins of chipmaker competitors as inconsistent with settled law on the

viability of antitrust liability for price squeezes. Mot. 18-22. That theory

rests on allegations of leveraging Qualcomm’s chip power, yet Qualcomm

has charged the same fair and reasonable royalty rates since before it

even had a chip business, obtained the same royalty rates when

Qualcomm did not allegedly have chip monopolies, and as Qualcomm’s

patent portfolio has grown. At the same time, innovation has flourished

in the cellular industry, output has risen and prices have fallen. None of

this was disputed at trial.

The FTC’s opposition likewise falls short with respect to irreparable

harm. The FTC’s core argument is that Qualcomm will not be harmed

because it would still be able to obtain what the FTC views as a

reasonable return on the value of its intellectual property; in other words,

it argues that Qualcomm will not suffer harm because the District Court

was correct to order changes to Qualcomm’s business. That is a non-

sequitur; the harm the stay is intended to mitigate is the harm

Qualcomm would suffer while the appeal is pending if the District Court

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was wrong. And in any event, more is at stake than lost royalties; it is

undisputed that the injunction forces Qualcomm to enter into new

agreements that would work a radical shift in the status quo.

As for the public interest, the brief submitted by the United States

and its accompanying declarations should be dispositive, considering the

severity of the public harms they establish. No purported harm to rival

chipmakers can outweigh these public harms. Indeed, because

Qualcomm seeks to license OEMs who make cellphones, chipmakers

have access to Qualcomm’s technology for free. Mot. 8-9. Rival

chipmakers will hardly suffer from enjoying continued free access to

Qualcomm’s technologies during the pendency of this appeal. Finally,

the FTC’s assertion that nothing in the submissions of the United States

“suggests that the injunction will . . . implicate national security

concerns,” Opp. 22-23, ignores what that brief and accompanying

declarations say. Qualcomm’s motion for a partial stay should be

granted.

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ARGUMENT

I. QUALCOMM HAS RAISED SERIOUS LEGAL QUESTIONS.

A central pillar of the District Court’s liability finding was its

holding that Qualcomm has an antitrust duty to deal with its rivals.

A142; see also A193 (“Refusing to license rivals not only blocks rivals, but

also preserves Qualcomm’s ability to demand unreasonably high royalty

rates from OEMs.”). In its opposition, the FTC declines to defend that

holding.2 In a telling concession at the very outset of its brief, the FTC

looks to sidestep rather than embrace that ruling, arguing that “the

district court’s finding of antitrust liability does not hinge” on an

antitrust duty to deal. Opp. 1. And when discussing Qualcomm’s

supposed breach of its obligation to deal with rivals, the FTC claims that

it is “not ‘just’ a breach of contract,” Opp. 13, but cannot bring itself to

say that it is a breach of an antitrust duty to deal. But if Qualcomm has

2Indeed, in its opposition the FTC never cites either Aspen Skiing
Co. v. Aspen Highland Skiing Corp., 472 U.S. 585 (1985), or MetroNet
Servs. Corp. v. Qwest Corp., 383 F.3d 1124 (9th Cir. 2004), which formed
the basis for the District Court’s flawed finding of an antitrust duty to
deal. A135-42. In an apparent disagreement with the FTC’s concession,
MediaTek cites those cases in its amicus brief. However, its claimed prior
course of dealing, MediaTek Br. 6-7, elides the fact that Qualcomm never
licensed SEPs exhaustively at the chip level. See infra n.5.

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no antitrust duty to deal with rival chipmakers, there is no basis for an

injunction under the antitrust laws requiring Qualcomm to offer them

exhaustive licenses. And as the United States explained, because the

District Court based its injunction on the supposed effect of Qualcomm’s

actions “in combination,” the removal of one of the legs of the stool means

that the injunction cannot stand. U.S. Br. 3-4.

If there is a contractual duty to deal, then chip suppliers already

have a remedy: they can assert their purported contractual right to a

license. The FTC contends that “chipmakers would not be vulnerable to

Qualcomm’s chip supply leverage and would thus be in position to

negotiate reasonable royalty rates in the shadow of patent law and

Qualcomm’s FRAND commitments.” Opp. 14. On this theory, no

antitrust injunction forcing Qualcomm to exhaustively license

chipmakers is needed. Rival chipmakers have always been, and remain,

perfectly capable of seeking to enforce any purported contractual

obligation to a license through litigation.

Confronted with Qualcomm’s showing that a “price squeeze” claim

is not cognizable under antitrust law without a duty to deal or below-cost

pricing, Mot. 19-20 (citing Pac. Bell Tel. Co. v. linkLine Comms., Inc., 555

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U.S. 438 (2009)), the FTC unsuccessfully attempts to recast its

allegations regarding the alleged “surcharge” on OEMs. Like the District

Court, the FTC does not mention its economic expert, who testified that

“rivals are having their margins squeezed” by Qualcomm. A371-72. But

the FTC does acknowledge that its theory of harm rests on the notion

that “the surcharge reduces rivals’ . . . margins.” Opp. 10. The FTC

cannot avoid linkLine by omitting the word “squeeze.” “[C]onduct that is

the functional equivalent of [a] price squeeze” is not actionable under

linkLine, regardless how it is labeled. John Doe 1 v. Abbott Labs., 571

F.3d 930, 935 (9th Cir. 2009). The FTC claims that linkLine and John

Doe 1 differ because the plaintiffs there allegedly did not claim that “the

prices the defendant set for wholesale offerings reflected anything other

than the value of those offerings.” Opp. 11. Wrong. In linkLine, the

plaintiffs alleged that the defendant had “abused [its] power in the

wholesale market.” 555 U.S. at 450. In John Doe 1, the plaintiffs alleged

that “Abbott [was] using its monopoly position in the booster market to

raise the price of” the drug. 571 F.3d at 935. These allegations are

functionally indistinguishable from what the FTC claims Qualcomm has

done here. Just as in those two cases, the lack of an antitrust duty to

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deal and of any allegations of predatory pricing dooms the FTC’s claim.

The FTC’s other response is a strawman; Qualcomm is not contending

“that linkLine creates a rule of per se legality for any conduct that

diminishes rivals’ margins so long as the monopolist’s own prices remain

above cost.” Opp. 11. Qualcomm’s position is that squeeze claims of the

sort expressly rejected in linkLine and John Doe 1 cannot succeed. That

is especially true here, where the District Court failed to “articulate

associated harm to competition” resulting from Qualcomm’s royalties.

U.S. Br. 4.3

II. QUALCOMM HAS SHOWN IRREPARABLE HARM

ABSENT A STAY.

The FTC’s arguments for why Qualcomm would not suffer

irreparable harm absent a stay are all based on the underlying

assumption that the District Court was correct to find that Qualcomm

charges “unreasonably high” royalties, such that severely reduced

The FTC claims that Qualcomm does not use the challenged
3

licensing practices “in markets . . . where it lacks monopoly power,” Opp.

4, seeking to imply that those practices must lead ineluctably to exclusion
of modem chip rivals. That is false; it is undisputed that Qualcomm
licenses its cellular SEPs and sells its chips in precisely the same way in
markets for WCDMA and non-premium LTE chips, FA2 (“FA” refers to
the Further Appendix filed concurrently with this brief), where it has
never been alleged, much less shown, to have market power.

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royalties would still give it “every dollar to which it is entitled.” Opp. 1;

see also id. 15, 19, 23. But the question isn’t whether Qualcomm would

be irreparably harmed from having the injunction remain in effect during

the pendency of the appeal if the District Court’s ruling were correct; it is

what the effect of leaving the injunction in place would be if the District

Court were wrong. If the FTC’s liability theories prove deficient, so too

should its contention of unreasonably high royalties, and the FTC does

not dispute that forcing Qualcomm to replace its existing agreements

with new long-term agreements would cause irreparable harm if

Qualcomm cannot return to the former agreements after a reversal on

appeal.4 Instead, it speculates that because Qualcomm has at times

entered into short-term license agreements in the past, it could do so

again here. Opp. 17-18. But those prior interim license agreements

generally sought to preserve the status quo while seeking common

ground on the terms of a future license. By contrast, the District Court’s

injunction is designed to call into question a broad swath of Qualcomm’s

4 Contrary to the FTC’s contention, Opp. 20, expedition does not solve
the problem. Once Qualcomm has been forced to sign new agreements
and change its business model, a reversal of the District Court’s order
comes too late to avoid the harm regardless whether it comes six months
or two years after those agreements go into force.

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existing agreements, and to give Qualcomm’s counterparties leverage to

seek a significant reduction in royalty rates. See Michel Br. 9-10 (noting

that the FTC brought the action “to devalue patents”). These

contemplated interim agreements therefore would not be calculated to

maintain the status quo, but instead to work a sharp change from the

parties’ prior dealings. There is no reason to expect that a counterparty

would agree to a contract permitting Qualcomm to return to its prior

royalty rates and terms if the injunction is ultimately reversed on appeal.

Even if they were willing to entertain such an agreement, it would come

only at a steep price to Qualcomm with respect to other terms of the

agreement.

The FTC further suggests that Qualcomm can’t avoid all harm

inflicted by the District Court’s order because a stay would still permit

Qualcomm’s counterparties to take advantage of the District Court’s

erroneous findings on the reasonableness of Qualcomm’s royalty rates.

Opp. 17. However, counterparties may shy away from attempting to use

those findings as a ceiling on royalty rates once this Court has found that

serious legal questions exist with respect to the underlying ruling. And

in any event, mitigation of harm is a legitimate ground for a stay, and a

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stay would prevent mandatory renegotiations conducted under the

District Court’s flawed findings of “unreasonably high” royalties, which

would irreversibly change the status quo.

In opposing a stay of the requirement that Qualcomm exhaustively

license other chipmakers to its cellular SEPs, the FTC misstates the

record. The FTC claims that the evidence introduced at trial showed that

“Qualcomm has previously licensed its modem-chip SEPs to rivals,” and

therefore Qualcomm would suffer no harm if forced to do so by the

injunction. Opp. 18. But it is undisputed that Qualcomm’s prior

agreements with other chipmakers were not the exhaustive licenses the

District Court’s injunction requires Qualcomm to offer.5 Indeed, the FTC

itself said in its pretrial findings of fact that those prior agreements “were

not licenses to Qualcomm’s cellular SEPs.” FA5. And, notably, although

it claims that some chipmakers have licensed rival chip suppliers, Opp.

18, the FTC does not dispute that the major cellular SEP licensors do not

5 Amicus ACT, which represents the interests of companies that

would like to pay less for Qualcomm’s intellectual property, doubles down
on this falsehood, claiming that Qualcomm “regularly and repeatedly
negotiated exhaustive cross-licenses with component makers.” ACT Br.
8 n.12. Neither the cited pages of the District Court’s opinion, nor
anything else in the record, supports that claim.

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exhaustively license chip suppliers. Nor does the FTC claim that

Qualcomm would be able to enter into “temporary” exhaustive licenses

with chipmakers that would become null and void in the event of a

reversal; once such agreements came into force, Qualcomm would be

stuck with the intractable issues of exhaustion and multi-level licensing

they would entail. A247-48.

III. THE PUBLIC INTEREST FAVORS A STAY.

The FTC does little more than argue that the District Court’s

(erroneous) finding of liability standing alone shows that the public

interest would be disserved by not forcing Qualcomm to change its

decades-old business model during the pendency of this appeal. Opp. 20.

There is no need to spill much ink rebutting that circular contention. The

FTC attacks a strawman when it suggests that Qualcomm or the United

States argues that “any antitrust remedy that diminishes Qualcomm’s

corporate profits constitutes an impermissible threat to national

security.” Opp. 23. The point is that a remedy that may harm national

security should not be imposed until this Court has satisfied itself that

the underlying decision is sound. This is not seeking “antitrust

immunity,” Opp. 24; it is attempting to avoid harm to the public interest

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before the judgment has been subjected to appellate scrutiny. The United

States explains well why the flawed remedy ordered in this case “risks

harming rather than benefitting consumers,” and that the “rare

circumstances” present here could lead to harm to the national security

of the United States. U.S. Br. 11-13.

The FTC further claims that there is a “public interest in immediate

relief” because of the impending rollout of 5G technology. Opp. 20.6 The

FTC asserts the 5G transition means that Qualcomm must be enjoined

from employing its decades-old business model with respect to chips sold

in a 5G market that did not exist at the time of trial and was never

defined by the District Court or the FTC. The FTC’s flimsy evidence of

Qualcomm’s abuse of 5G chip power is worth quoting: the District Court

stated that “[i]f Qualcomm has a lead on 5G chips, as Qualcomm states

it does, then Samsung had little option but to sign Qualcomm’s 5G license

agreement to ensure access to Qualcomm’s chip supply.” A225. No

citation to evidence accompanies this assertion. And it is implausible,

because Samsung has announced that it expects to produce its own

6 While MediaTek echoes this alleged urgency, MediaTek Br. 12-13,

it offers no facts supporting its rhetoric.

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competing 5G chips, FA8-9, and its representatives testified that no

threats regarding chip supply were made during negotiations, FA11-14.

The cellular industry has been robust, as the FTC’s own expert conceded

at trial, and will remain so after a partial stay is entered pending plenary

review of the District Court’s order.

CONCLUSION

For the foregoing reasons, and those stated in the opening brief,

this Court should grant a partial stay of the District Court’s injunction.

July 25, 2019 Respectfully submitted,

Gary A. Bornstein /s/ Thomas C. Goldstein

Yonatan Even Thomas C. Goldstein
CRAVATH, SWAINE & MOORE LLP Kevin K. Russell
825 Eighth Avenue Eric F. Citron
New York, NY 10019-7475 GOLDSTEIN & RUSSELL, P.C.
(212) 474-1000 7475 Wisconsin Avenue, Suite 850
Bethesda, MD 20814
Robert A. Van Nest (202) 362-0636
Eugene M. Paige
Cody S. Harris Richard S. Taffet
Justina Sessions MORGAN, LEWIS & BOCKIUS LLP
KEKER, VAN NEST & PETERS LLP 101 Park Avenue
633 Battery Street New York, NY 10178-0060
San Francisco, CA 94111-1809 (212) 309-6000
(415) 391-5400

14
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Willard K. Tom Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue NW One Market, Spear Street Tower
Washington, DC 20004-2541 San Francisco, CA 94105-1596
(202) 739-3000 (415) 442-1000

Counsel for Appellant Qualcomm Incorporated

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CERTIFICATE OF COMPLIANCE

This document complies with the type-volume limitation of Circuit

Rules 27-1(1)(d) and 32-3(2) because it contains 2,794 words, excluding

the parts of the brief exempted by Federal Rule of Appellate Procedure

32(f) and Circuit Rule 27-1(1)(d).

Pursuant to Federal Rule of Appellate Procedure 27(d)(1)(E), this

document complies with the typeface requirements of Federal Rule of

Appellate Procedure 32(a)(5) and the type style requirements of Federal

Rule of Appellate Procedure 32(a)(6) because it has been prepared in a

proportionally spaced typeface using Microsoft Word 2016 Century

Schoolbook 14-point font.

July 25, 2019 /s/Thomas C. Goldstein

Thomas C. Goldstein
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on July 25, 2019. All

participants in the case are registered CM/ECF users, and service will be

accomplished by the appellate CM/ECF system.

/s/Thomas C. Goldstein
Thomas C. Goldstein
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No. 19-16122

United States Court of Appeals for the Ninth Circuit

FEDERAL TRADE COMMISSION,

Plaintiff – Appellee,
v.
QUALCOMM INCORPORATED, A DELAWARE CORPORATION,
Defendant – Appellant.
_____________________________

Appeal from the U.S. District Court

for the Northern District of California
The Honorable Lucy H. Koh (No. 5:17-cv-00220-LHK)
_____________________________

FURTHER APPENDIX
_____________________________

Gary A. Bornstein Thomas C. Goldstein

Yonatan Even Kevin K. Russell
CRAVATH, SWAINE & MOORE LLP Eric F. Citron
825 Eighth Avenue GOLDSTEIN & RUSSELL, P.C.
New York, NY 10019-7475 7475 Wisconsin Avenue, Suite 850
(212) 474-1000 Bethesda, MD 20814
Robert A. Van Nest (202) 362-0636
Eugene M. Paige
Cody S. Harris
Justina Sessions
KEKER, VAN NEST & PETERS LLP
633 Battery Street
San Francisco, CA 94111-1809
(415) 391 5400
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Willard K. Tom Richard S. Taffet

MORGAN, LEWIS & BOCKIUS LLP MORGAN, LEWIS & BOCKIUS LLP
1111 Pennsylvania Avenue NW 101 Park Avenue
Washington, DC 20004-2541 New York, NY 10178-0060
(202) 739-3000 (212) 309-6000
Geoffrey T. Holtz
MORGAN, LEWIS & BOCKIUS LLP
One Market, Spear Street Tower
San Francisco, CA 94105-1596
(415) 442-1000

Counsel for Appellant Qualcomm Incorporated

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TABLE OF CONTENTS

Document, Date (District Court Docket No.) Page

Further Appendix

Excerpt of Trial Testimony of Carl Shapiro, January 15, 2019

(No. 1514) ..................................................................................... FA1
Excerpt of Plaintiff FTC’s Pretrial Proposed Findings of Fact and
Conclusions of Law, December 6, 2018 (No. 1469-4) .................. FA4
Excerpt of Trial Testimony of Alex Rogers, January 25, 2019
(No. 1517) ...................................................................................... FA7
Excerpt of Deposition Testimony of Injung Lee, March 14, 2018
(No. 1447-5)................................................................................. FA11
Excerpt of Deposition Testimony of Seungho Ahn, March 28, 2018
(No. 1447-4)................................................................................. FA13
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Case 5:17-cv-00220-LHK Document 1514 Filed 07/02/19 Page 1 of 232 1112

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

5
FEDERAL TRADE COMMISSION, ) C-17-00220 LHK
6 )
PLAINTIFF, ) SAN JOSE, CALIFORNIA
7 )
VS. ) JANUARY 15, 2019
8 )
QUALCOMM INCORPORATED, A ) VOLUME 6
9 DELAWARE CORPORATION, )
) PAGES 1112-1342
10 DEFENDANT. )
)
11

12 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
13 UNITED STATES DISTRICT JUDGE

14 A P P E A R A N C E S:

15 FOR THE PLAINTIFF: FEDERAL TRADE COMMISSION

BY: JENNIFER MILICI
16 DANIEL J. MATHESON
WESLEY G. CARSON
17 KENT COX
NATHANIEL M. HOPKIN
18 PHILIP J. KEHL
MIKA IKEDA
19 600 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20580
20

21 APPEARANCES CONTINUED ON NEXT PAGE

22 OFFICIAL COURT REPORTERS: LEE-ANNE SHORTRIDGE, CSR, CRR

CERTIFICATE NUMBER 9595
23 IRENE RODRIGUEZ, CSR, CRR, RMR
CERTIFICATE NUMBER 8074
24
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY
25 TRANSCRIPT PRODUCED WITH COMPUTER

UNITED STATES COURT REPORTERS

FA1
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CaseSHAPIRO
5:17-cv-00220-LHK
CROSS BY MR.Document
VAN NEST 1514 Filed 07/02/19 Page 129 of 2321240

1 Q. BUT I GUESS MY QUESTION IS, IN THE REAL WORLD WHEN

2 QUALCOMM SIGNED THIS DEAL WITH APPLE, QUALCOMM WAS EXPECTING TO

3 EARN A SIGNIFICANT PROFIT OVERALL ON THE TRANSACTION; CORRECT?

4 A. I BELIEVE THAT'S CORRECT, WITH WHATEVER COUNTER FACTUAL

5 THEY HAD IN MIND WITHOUT THE DEAL. BUT THAT'S WHAT WAS

6 PRESENTED.

7 I'M NOT DISPUTING THAT.

8 Q. THANK YOU. THANK YOU.

9 NOW, WE TALKED EARLIER, AND YOU AND I TALKED EARLIER,

10 ABOUT THE POLICY AT QUALCOMM OF NOT SELLING CHIPS TO OEM'S WHO

11 DO NOT HAVE A LICENSE.

12 DO YOU RECALL THAT TESTIMONY?

13 A. YES.

14 Q. YEAH. AND YOU UNDERSTOOD THAT THAT'S BEEN QUALCOMM'S

15 POLICY FOR MANY YEARS?

16 A. I DO.

17 Q. AND THAT'S QUALCOMM'S POLICY REGARDLESS OF WHAT PARTICULAR

18 CELLULAR STANDARD WE'RE TALKING ABOUT; RIGHT?

19 A. YES, I UNDERSTAND THAT.

20 Q. SO IT APPLIES TO CDMA, TO PREMIUM LTE AS YOU DEFINE IT, TO

21 WCDMA, ALL ACROSS ALL TECHNOLOGIES, QUALCOMM'S POLICY HAS BEEN

22 THE SAME; CORRECT?

23 A. THAT'S MY UNDERSTANDING, YES.

24 Q. AND YOU HAVE NOTED IN YOUR REPORT THAT IF OEM'S HAD ACCESS

25 TO CHIPS FROM OTHER PEOPLE AT A COMPARABLE PRICE AND WITH

UNITED STATES COURT REPORTERS

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Case 5:17-cv-00220-LHK Document 1514 Filed 07/02/19 Page 232 of 232

3 CERTIFICATE OF REPORTERS

7 WE, THE UNDERSIGNED OFFICIAL COURT REPORTERS OF THE

8 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

9 CALIFORNIA, 280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO

10 HEREBY CERTIFY:

11 THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

12 A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

13 ABOVE-ENTITLED MATTER.

14

15
______________________________
16 IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8076
17

18
_______________________________
19 LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595
20

21 DATED: JANUARY 15, 2019

22

23

24

25

UNITED STATES COURT REPORTERS

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Case 5:17-cv-00220-LHK Document 1517 Filed 07/02/19 Page 1 of 198 1829

1 UNITED STATES DISTRICT COURT

2 NORTHERN DISTRICT OF CALIFORNIA

3 SAN JOSE DIVISION

5
FEDERAL TRADE COMMISSION, ) C-17-00220 LHK
6 )
PLAINTIFF, ) SAN JOSE, CALIFORNIA
7 )
VS. ) JANUARY 25, 2019
8 )
QUALCOMM INCORPORATED, A ) VOLUME 9
9 DELAWARE CORPORATION, )
) PAGES 1829-2026
10 DEFENDANT. ) SEALED PAGES 2021-2021
)
11

12 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE LUCY H. KOH
13 UNITED STATES DISTRICT JUDGE

14 A P P E A R A N C E S:

15 FOR THE PLAINTIFF: FEDERAL TRADE COMMISSION

BY: JENNIFER MILICI
16 DANIEL J. MATHESON
WESLEY G. CARSON
17 KENT COX
NATHANIEL M. HOPKIN
18 PHILIP J. KEHL
MIKA IKEDA
19 600 PENNSYLVANIA AVENUE, NW
WASHINGTON, D.C. 20580
20

21 APPEARANCES CONTINUED ON NEXT PAGE

22 OFFICIAL COURT REPORTERS: LEE-ANNE SHORTRIDGE, CSR, CRR

CERTIFICATE NUMBER 9595
23 IRENE RODRIGUEZ, CSR, CRR, RMR
CERTIFICATE NUMBER 8074
24
PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY
25 TRANSCRIPT PRODUCED WITH COMPUTER

UNITED STATES COURT REPORTERS

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CaseROGERS
5:17-cv-00220-LHK Document
REDIRECT BY MR. 1517 Filed 07/02/19 Page 187 of 1982015
VAN NEST

1 THE COURT: AND THEN 7629?

2 MR. ADLER: THAT'S CORRECT, YOUR HONOR.

3 THE COURT: SO YOU NEED TO MOVE TO SEAL ALL FIVE OF

4 THOSE?

5 MR. ADLER: YES.

6 THE COURT: OKAY. AND THIS DOES NOT HAVE TO BE DONE

7 BEFORE CLOSING; IS THAT RIGHT?

8 MR. VAN NEST: NO, AS LONG AS WE'RE NOT FILING THE

9 EXHIBITS ON THE PUBLIC RECORD, OF COURSE NOT.

10 THE COURT: OKAY. WELL, THEN DO YOU WANT TO FILE

11 THIS ON MONDAY?

12 MR. VAN NEST: SURE.

13 MR. ADLER: THAT WOULD BE FINE, YOUR HONOR.

14 MR. VAN NEST: THAT'S BETTER.

15 THE COURT: WHY DON'T YOU FILE IT MONDAY?

16 MR. ADLER: THANK YOU, YOUR HONOR.

17 THE COURT: OKAY. LET'S MOVE TO THE REDIRECT,

18 PLEASE. IT'S 2:55.

19 REDIRECT EXAMINATION

20 BY MR. VAN NEST:

21 Q. MR. ROGERS, AS OF MARCH OF 2018 WERE YOU EXPECTING

22 COMPETITION IN 5G?

23 A. YES, SIR.

24 Q. WHAT COMPANIES DID QUALCOMM BELIEVE WOULD BE COMPETING FOR

25 5G?

UNITED STATES COURT REPORTERS

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CaseROGERS
5:17-cv-00220-LHK Document
REDIRECT BY MR. 1517 Filed 07/02/19 Page 188 of 1982016
VAN NEST

1 A. HUAWEI HAD ALREADY ANNOUNCED A 5G CHIP I THINK IN THE

2 PRIOR MONTH AT MOBILE WORLD CONGRESS; SAMSUNG HAD ANNOUNCED A

3 5G CHIP; INTEL HAD A 5G PROJECT; MEDIATEK HAD A 5G CHIP PROJECT

4 AS WELL.

5 Q. DID YOU ACTUALLY ATTEND THE 2018 MOBILE WORLD CONGRESS IN

6 JANUARY?

7 A. I THINK IT WAS IN FEBRUARY.

8 Q. DID YOU ATTEND?

9 A. YES, I DID.

10 Q. WHAT DID YOU SEE THERE?

11 A. I SAW THE HEAD OF THE MOBILE DEPARTMENT OF HUAWEI HOLDING

12 UP A 5G CHIP AND TALKING ABOUT THE 5G CHIP CAPABILITIES OF

13 HUAWEI.

14 Q. COULD WE HAVE CX 8196 ON THE SCREEN, AND PAGE 121. IT'S

15 IN YOUR BINDER, BUT WE HAVE IT HERE.

16 COULD WE GO TO THE BOTTOM OF THE PAGE. ACTUALLY, YEAH, DO

17 WE HAVE -- OKAY. WITH REFERENCE TO THE BOTTOM RESULT, 5G

18 CHIPSET COMPETITIVE LANDSCAPE, CAN YOU TELL US WHAT IS RECORDED

19 THERE?

20 A. YEAH. IT'S SAMSUNG AND HISILICON, THAT'S THE DIVISION OR

21 THE COMPANY THAT BELONGS TO HUAWEI THAT MAKES CHIPS, IS

22 EXPECTED TO COMPETE WITH QCT.

23 AND THEN IT REFERS TO INTEL AND MEDIATEK LAGGING ON TIME

24 TO MARKET, BUT OBVIOUSLY THEY'RE PREPARING 5G CHIPS AS WELL.

25 Q. THANK YOU, MR. ROGERS.

UNITED STATES COURT REPORTERS

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Case 5:17-cv-00220-LHK Document 1517 Filed 07/02/19 Page 198 of 198

3 CERTIFICATE OF REPORTERS

7 WE, THE UNDERSIGNED OFFICIAL COURT REPORTERS OF THE

8 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

9 CALIFORNIA, 280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO

10 HEREBY CERTIFY:

11 THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

12 A CORRECT TRANSCRIPT FROM THE RECORD OF PROCEEDINGS IN THE

13 ABOVE-ENTITLED MATTER.

14

15
______________________________
16 IRENE RODRIGUEZ, CSR, CRR
CERTIFICATE NUMBER 8076
17

18
_______________________________
19 LEE-ANNE SHORTRIDGE, CSR, CRR
CERTIFICATE NUMBER 9595
20

21 DATED: JANUARY 25, 2019

22

23

24

25

UNITED STATES COURT REPORTERS

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FY/+.

,QMXQJ/HH

Lee, Injung - 03/14/2018

Page 11
11 :12 Mr. Lee, in January of 2018, Qualcomm and
13 Samsung entered into several agreements concerning
14 their respective IP rights. Is that right?
15 A. Yes. Back in January 2018, we entered into
16 several agreements with Qualcomm.
17 Q. And you were involved in negotiating those
18 agreements with Qualcomm. Is that right?

Lee, Injung - 03/14/2018

Page 11
11 :21 THE WITNESS: Yes. I participated in the
22 negotiations.

Lee, Injung - 03/14/2018

Page 13
13 :10 Q. And sitting here today, Mr. Lee, you have no
11 reason to believe that Qualcomm did not negotiate in
12 good faith. Is that right?
13 A. I do not.

Lee, Injung - 03/14/2018

Page 14
14 :14 Q. Throughout the negotiation of this 2018
15 agreement, Qualcomm has raised no threat, you are aware
16 of, of cutting off chip supply to Samsung. Is that
17 right?
18 A. As for me, as a person, Qualcomm has not
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19 communicated to me to the effect that Qualcomm would

20 block the supply of chipsets to Samsung.
21 Q. And sitting here today, you are not aware if
22 Qualcomm communicated any threat concerning chip supply
23 to anyone else at Samsung. Is that right?

Lee, Injung - 03/14/2018

Page 15
15 :2 THE WITNESS: Correct. There is no such thing
3 that I am aware of.
4 BY MR. EVEN:
5 Q. And you are aware, are you not, that Samsung
6 has had an alternative supplier for chips, including
7 for chips for its flagship phones, for several years
8 now. Right?

Lee, Injung - 03/14/2018

Page 15
15 :13 THE WITNESS: I do not have precise knowledge
14 as to what specific chips are used in which of our
15 products. That said, I am aware that Samsung makes
16 chips in-house. I am also aware that Samsung buys
17 chips from some other companies as well.
18 BY MR. EVEN:

Lee, Injung - 03/14/2018

Page 20
20 :9 Q. Mr. Lee, can you give me an example of
10 something Qualcomm did during this negotiation that you
11 think of as unfair?

Lee, Injung - 03/14/2018

Page 20
20 :17 THE WITNESS: I don't have anything that
18 occurs to me, as I'm sitting here right now, that I
19 believe was unfair.

Lee, Injung - 03/14/2018

Page 41
41 :5 Q. And the negotiations ultimately culminated in,
6 in an amendment being signed sometime in November of
7 2009. Is that right?
8 A. Yes. I believe that is right.

Lee, Injung - 03/14/2018

Page 41
41 :21 Q. And throughout the negotiation, Qualcomm
22 didn't present any ultimatum or any take it or leave it
23 kind of proposal. Is that fair?

Lee, Injung - 03/14/2018

Page 42
42 :2 THE WITNESS: Sitting here today, I don't have
3 anything that I recall.

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FY/+.

6HXQJKR$KQ

Ahn, Seungho - 03/28/2018

Page 9
9 :13 Q. Good morning, Dr. Ahn.
14 A. Good morning.

Ahn, Seungho - 03/28/2018

Page 26
26 :7 Q. When did you join the IP Center?
8 A. As far as I remember, it was sometime in
9 July of 2010 when the IP Center was formed, and that
10 was when I began serving as the head of the
11 IP Center.
12 Q. And is that still your title today?
13 A. Yes.
14 Q. And in that capacity, are you the
15 highest-ranking executive at Samsung in charge of
16 licensing?

Ahn, Seungho - 03/28/2018

Page 26
26 :20 THE WITNESS: You can think of me as the
21 person who is in charge of all matters relating to
22 IP.

Ahn, Seungho - 03/28/2018

Page 35
35 :3 Q. And were you involved in the recent
4 negotiation with Qualcomm?
5 A. When you say "the recent negotiation," when

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6 would you be referring to?

7 Q. The negotiation that culminated in the 2018
8 amendments to the licensing agreement.
9 A. Yes, I was.
10 Q. Who did you negotiate with from Qualcomm
11 during this also negotiation?
12 A. Alex Rogers and John Han.

Ahn, Seungho - 03/28/2018

Page 36
36 :12 Q. During the negotiation of 2018, Qualcomm
13 did not threaten to stop chip supply to Samsung at
14 any point; is that correct?

Ahn, Seungho - 03/28/2018

Page 36
36 :18 THE WITNESS: To the extent of my
19 understanding, no.

Ahn, Seungho - 03/28/2018

Page 37
37 :20 Q. Was Samsung coerced into entering the
21 amendments in any way?

Ahn, Seungho - 03/28/2018

Page 37
37 :25 THE WITNESS: I don't think there was
38 :1 anything in particular that I can say where Samsung
2 was coerced.

Ahn, Seungho - 03/28/2018

Page 38
38 :4 Q. Was there any unethical behavior by
5 Mr. Rogers or Han during the negotiation?

Ahn, Seungho - 03/28/2018

Page 38
38 :10 THE WITNESS: Sitting here today, I cannot
11 think of anything that comes to mind.

Ahn, Seungho

Ahn, Seungho - 03/29/2018

Page 
157 :1 Q. Is -- based on your understanding, is one of
2 the goals of reverse holdout to force a potential
3 licensor to accept lower royalties than they believe
4 they deserve?

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system on July 25, 2019. All

participants in the case are registered CM/ECF users, and service will be

accomplished by the appellate CM/ECF system.

/s/ Thomas C. Goldstein

Thomas C. Goldstein