19-07-19 ACT The App Association Amicus Brief

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Case: 19-16122, 07/19/2019, ID: 11370470, DktEntry: 37-1, Page 1 of 7
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-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

NORTHERN DISTRICT OF CALIFORNIA
HON. LUCY H. KOH, JUDGE, CASE NO. 5:17-CV-00220
MOTION FOR LEAVE TO FILE BRIEF OF

ACT | THE APP ASSOCIATION
AS AMICUS CURIAE IN OPPOSITION TO QUALCOMM’S MOTION FOR
PARTIAL STAY OF INJUNCTION PENDING APPEAL
Amanda Tessar
PERKINS COIE LLP
1900 Sixteenth St, #1400
Denver, CO 80202-5255
Telephone: (303) 291.2357
Facsimile: (303) 291-2457
ATessar@perkinscoie.com
Sarah E. Fowler
PERKINS COIE LLP
3150 Porter Dr.
Palo Alto, CA 94304
Telephone: (650) 838-4300
Facsimile: (650) 838-4350
SFowler@perkinscoie.com
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(a)(4)(A),
amicus curiae ACT | THE APP ASSOCIATION certifies that it is not a corporation
and has no stock. It therefore has no parent corporations or any publicly-held
corporations that own 10% or more of stock.
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Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, ACT | The
App Association (“The Association”) respectfully moves for leave to file an
amicus curiae brief in opposition to Defendant-Appellant’s Motion for Partial Stay
of Injunction Pending Appeal. Appellee does not oppose, and Appellant takes no
position on this motion.
The Association (formerly known as the Association for Competitive
Technology) is an international grassroots advocacy and education organization
representing more than 5,000 small and mid-size app (i.e., application) developers
and information technology firms. It is the only organization focused on the needs
of small business innovators from around the world. The Association advocates
for an environment that inspires and rewards innovation while providing resources
to help its members leverage their intellectual assets to raise capital, create jobs,
and continue innovating.
The Association’s interest in this case is as follows: The Association has
been monitoring recent developments in this case because of the significant
implications of the issues in this case for the interests of their members. In light of
the critical role that technological innovation plays in enhancing competition and
improving the welfare of consumers, the Association has a special interest in
ensuring that federal law is properly applied to dynamic industries and innovative
technologies.
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The Association has participated as amicus curiae in a number of cases
involving technological innovation. See, e.g., TC Heartland LLC v. Kraft Foods
Grp. Brands LLC, 137 S. Ct. 1514 (2017); Samsung Elecs. Co. v. Apple Inc., 137
S. Ct. 429 (2016); Apple, Inc. v. United States, 136 S. Ct. 1376 (2016); Petrella v.
Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014); Dastar Corp. v. Twentieth
Century Fox Film Corp., 539 U.S. 23 (2003). In addition, the Association has
previously filed several amicus briefs in the district court case giving rise to this
appeal. See Amicus Curiae Brief in Support of the FTC’s Opposition to
Qualcomm’s Motion to Dismiss (filed May 25, 2017) (D.I. 112); Amicus Brief in
Support of FTC’s Motion for Summary Judgment (filed Sept. 20, 2018) (D.I. 864);
Motion for Leave to File an Amicus Curiae Brief in Opposition to Qualcomm's
Motion for Stay Pending Appeal (D.I. 1503).
Based on its strong interest in fostering innovation and protecting the
interests of developers and technology firms, the Association believes that it can
provide a unique perspective which will aid this Court in evaluating the motion
filed by Qualcomm. Qualcomm’s motion asks this Court to stay the injunction set
forth in the district court’s order pending appeal. If the injunction were stayed, the
detrimental effects of these actions will be felt by technology companies who rely
on communications standards—particularly small business innovators who rely on
standardized technologies during this critical time of development and deployment
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for new “Fifth Generation” (5G) and “Internet of things” (IoT) technologies. The
Association has substantial knowledge and a unique perspective on these issues
and submits that its participation as an amicus is likely to assist the Court in
assessing the “potential ramifications beyond the parties directly involved.”
Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc., 272 F. Supp. 2d
919, 925 (N.D. Cal. 2003). In particular, the Association is well positioned to
highlight the potentially dramatic impact a stay of the injunction may have for
various members of the industry—including countless verticals outside of
traditional telecommunication businesses—during this critical transition. If SEP
abuses are permitted to distort competition at this crucial juncture, even for a
matter of months, associated market distortions could persist for many years to
come.
DATED: July 19, 2019
PERKINS COIE LLP
By: s/ Sarah Fowler

Sarah Fowler
ATTORNEYS FOR AMICUS CURIAE

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Motion complies with the type-volume
limitation of Circuit Rules 27-1(d) and Circuit Rule 32-3, because it contains 585
words, excluding the parts of the brief exempted by Federal Rule of Appellate
Procedure 32(f) and Circuit Rule 27-1(1)(d). Furthermore, this Motion complies
with the typeface and the type style requirements of Fed. R. App. P. 27 because
this brief has been prepared using Word 14-point Times New Roman typeface.
PERKINS COIE LLP
By: s/ Sarah Fowler

Sarah Fowler

5
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CERTIFICATE OF SERVICE
On July 19, 2019, the undersigned caused the foregoing document to be filed
electronically by using the Court’s CM/ECF system. All parties are represented by
registered CM/ECF users and will be served by the appellate CM/ECF system.
PERKINS COIE LLP
By: s/ Sarah Fowler

Sarah Fowler

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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.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

NORTHERN DISTRICT OF CALIFORNIA
HON. LUCY H. KOH, JUDGE, CASE NO. 5:17-CV-00220
BRIEF OF AMICUS CURIAE ACT | THE APP ASSOCIATION

IN OPPOSITION TO
QUALCOMM’S MOTION FOR PARTIAL STAY PENDING APPEAL
Amanda Tessar
PERKINS COIE LLP
1900 Sixteenth St, #1400
Denver, CO 80202-5255
Telephone: (303) 291.2357
Facsimile: (303) 291-2457
ATessar@Perkinscoie.com
Sarah E. Fowler
PERKINS COIE LLP
3150 Porter Dr.
Palo Alto, CA 94304
Telephone: (650) 838-4300
Facsimile: (650) 838-4350
SFowler@Perkinscoie.com
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CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(a)(4)(A),
amicus curiae ACT | THE APP ASSOCIATION certifies that it is not a corporation
and has no stock. It therefore has no parent corporations or any publicly-held
corporations that own 10% or more of stock.

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TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES AND CONVENTIONS ............................................ ii
RULE 29(A)(4)(E) STATEMENT ......................................................................... iv
I. RULE 29 STATEMENT OF INTEREST ..................................................... 1
II. INTRODUCTION ......................................................................................... 1
III. ARGUMENT ................................................................................................. 3
a. FRAND Exists to Shield Against IP Abuses—As Qualcomm’s

Historical Statements and Practices Confirm .......................................3
1. FRAND’s Critical Role During the Transition to 5G ................3
2. The Association’s Views on FRAND Are Mainstream ...................4
3. Until Recently, Appellant Shared the Association’s Views ............5
b. The Harm to the Market from Staying Substantially Outweighs

the Dubious Allegations of Harm to One Competitor .........................6
1. The Order Protects Existing 4G/LTE and Emerging 5G

Markets at a Critical Transition .................................................6
c. The Views Presented by the Other Pro-Stay Amici Also Do Not

Demonstrate Harm Absent a Stay ......................................................11
IV. CONCLUSION............................................................................................ 12
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TABLE OF AUTHORITIES AND CONVENTIONS
Throughout this brief, all emphasis is added unless otherwise indicated.
CASES
GPNE Corp. v. Apple, Inc.,

No. 12-CV- 02885-LHK, 2014 WL 1494247 (N.D. Cal. Apr. 16,
2014) ..................................................................................................................... 8
In re Certain Mobile Electronic Devices,

Inv. No. 337-TA-1065, Initial Determination ...................................................... 2
Microsoft v. Motorola,
795 F.3d 1024 (9th Cir. 2015) ............................................................................ 12
Qualcomm v. Apple,
ITC 337-TA-1065 (Sept. 28, 2018) .................................................................... 12
REGULATIONS
2 CFR §200.320 ....................................................................................................... 10
OTHER AUTHORITIES
Comments to Department of Commerce and USPTO, at

http://actonline.org/wp-content/uploads/Multi-Stakeholder-Letter-
re-DOJ-USPTO-Policy-Statement-042219.pdf ................................................ 4, 5
Comments to FTC, at https://www.ftc.gov/policy/public-

comments/2018/08/20/comment-ftc-2018-0055-d-0031 ..................................... 4
Core Principles and Approaches for Licensing of SEPs, CEN-

CENELEC CWA 95000, at
https://sistemaproprietaintellettuale.it/pdf/WS-SEP2-CWA95000-
final-draft.pdf .................................................................................................... 3, 4
https://www.3gpp.org/contact/3gpp-faqs#L5 ............................................................ 3
https://www.3gpp.org/release-15 ............................................................................. 10
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Industry Letter to AAG Delrahim, at http://www.ccianet.org/wp-

content/uploads/2018/01/Industry-Letter-to-DOJ-AAG.pdf ................................ 4
J. Gittlesohn, Battle of Tech Heavyweights, Orange County (Cal.)

Reg. 1 2007 WLNR 30244838 (5/1/07) ............................................................... 5
J. Kattan, The Qualcomm Case and U.S. National Security, at

https://actonline.org/wp-content/uploads/The-Qualcomm-Case-
and-National-Security_Final.pdf .......................................................................... 2
Letter to AAG Delrahim Regarding Speeches on Patents and Holdup,

at https://www.competitionpolicyinternational.com/wp-
content/uploads/2018/05/DOJ-patent-holdup-letter.pdf ....................................... 4
Multi-Association Letter to AAG Delrahim, at

http://www.ccianet.org/wp-content/uploads/2018/05/Multi-Assn-
DOJ-White-Paper-053018.pdf .............................................................................. 4
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RULE 29(A)(4)(E) STATEMENT
Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), ACT | THE
APP ASSOCIATION certifies that its counsel authored the brief in whole, no party
or party’s counsel contributed money that was intended to fund preparing or
submitting the brief, and no person — other than ACT | THE APP ASSOCIATION
and its members — contributed money that was intended to fund preparing or
submitting the brief.
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I. RULE 29 STATEMENT OF INTEREST
Amicus curiae ACT | The App Association (the “Association”) respectfully
offers its perspective on Appellant’s Motion for Partial Stay of Injunction Pending
Appeal (“Motion”). The Association represents more than 5,000 small technology
development companies that create leading software and hardware solutions. The
ecosystem the Association represents is valued at approximately $1.3 trillion and
provides 5.7 million American jobs. The Association is the leading global
representative for the small-business innovator community on law and policy for
standard-essential patents (SEPs).
II. INTRODUCTION
Appellant’s request for a stay is based on premises proven false before the
district court. Appellant claims that compliance with the district court’s Order
(Dkt. 1491) would “fundamentally change the way it has done business for
decades” in ways that “conflict with settled industry practice.” Motion, at 1-3.
Neither of these claims withstands scrutiny. Nor is there any risk of imminent
harm to either Appellant or national interests if the injunction is not stayed during
this expedited appeal. To the contrary, domestic rollout of and investment in 5G
networks will be severely harmed if the motion to stay is granted, and, as the ITC
held, there is “a real and palpable likelihood the National Security interests will be
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jeopardized” by Appellant’s conduct.1
The district court’s 233-page Order meticulously documents the practices
held to be illegal, as well as how those practices have harmed competition in the
telecommunication market, successfully removing a series of domestic rivals (i.e.,
alternative sources of supply). The district court expressly addressed the potential
harm to competition in 5G markets if Appellant’s illegal conduct were permitted to
continue during the market’s imminent transition from 4G/LTE to 5G. In
particular, the Order notes that the practices that are the focus of Appellant’s
Motion were viewed by Appellant as integral to its anticompetitive efforts to
dominate emerging 5G markets. Order, at 200-201.
The injunction requires only that Appellant abide by promises and practices
that it had long advocated to both investors and the U.S. courts, and that other
successful companies have followed for decades. On the other hand, the requested
stay would cause severe harm to the Association’s industry, the wireless
ecosystem, and the public interest.
1
In re Certain Mobile Electronic Devices, Inv. No. 337-TA-1065, Initial
Determination at 195; see also J. Kattan, The Qualcomm Case and U.S.
National Security, at 6-8, at https://actonline.org/wp-content/uploads/The-
Qualcomm-Case-and-National-Security_Final.pdf.
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III. ARGUMENT
a. FRAND EXISTS TO SHIELD AGAINST IP ABUSES—AS QUALCOMM’S

HISTORICAL STATEMENTS AND PRACTICES CONFIRM
1. FRAND’s Critical Role During the Transition to 5G
It should be no surprise to anyone, much less Appellant, that a FRAND
promise – a promise to license on “fair” and “non-discriminatory” terms – imposes
an obligation to offer a license to companies throughout the supply chain. For
example, the key industry organization for development of cellular standards
prominently notes on its website that FRAND “require[s] IPR holders to make
licences available to all third parties.”2
Ensuring appropriate FRAND behaviors is critical as the industry
implements next-generation 5G networks and devices—something that is
happening right now:
According to recent … estimates, some 25-30 billion devices

in the home and workplace will be equipped with sensors,
processors and embedded software.… For proper market
functioning as the connected economy develops, it will be
critical to all market actors that FRAND licensing practices
are followed and that abusive assertions are prevented.3
If SEP abuses are permitted to distort competition at this critical juncture, even for
a matter of months, market distortions will persist for many years to come.
2
https://www.3gpp.org/contact/3gpp-faqs#L5.
3
Core Principles and Approaches for Licensing of SEPs, CEN-CENELEC CWA
95000, at https://sistemaproprietaintellettuale.it/pdf/WS-SEP2-CWA95000-
final-draft.pdf .
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2. The Association’s Views on FRAND Are Mainstream
The Association’s view on these issues, like the district court’s decision, is
entirely mainstream and consistent with applicable caselaw. For example, we
joined 50+ industry leaders and 70+ governmental and academic thought leaders in
voicing our support for FRAND practices and U.S. legal precedent to the DOJ,4 the
FTC,5 the Department of Commerce, and the USPTO.6 We recently co-sponsored
a workshop bringing together 50+ companies to document core principles for SEP-
licensing, particularly for 5G.7 The companies and associations that have joined us
in efforts to curtail SEP abuses represent over $100B annually in R&D spending
across a range of industries, own hundreds of thousands of patents (including
SEPs), employ 50 million+ Americans, and contribute trillions of dollars to
4
Multi-Association Letter to AAG Delrahim, at http://www.ccianet.org/wp-
content/uploads/2018/05/Multi-Assn-DOJ-White-Paper-053018.pdf; Industry
Letter to AAG Delrahim, at http://www.ccianet.org/wp-
content/uploads/2018/01/Industry-Letter-to-DOJ-AAG.pdf; Letter to AAG
Delrahim Regarding Speeches on Patents and Holdup, at
https://www.competitionpolicyinternational.com/wp-
content/uploads/2018/05/DOJ-patent-holdup-letter.pdf.
5
Comments to FTC, at https://www.ftc.gov/policy/public-
comments/2018/08/20/comment-ftc-2018-0055-d-0031.
6
Comments to Department of Commerce and USPTO, at
http://actonline.org/wp-content/uploads/Multi-Stakeholder-Letter-re-DOJ-
USPTO-Policy-Statement-042219.pdf.
7
Supra, n.3.
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annual U.S. GDP.8
3. Until Recently, Appellant Shared the Association’s Views

In its Motion, Appellant rails against industry practices (such as chip-level
licensing) that are not particularly controversial and that even Appellant itself
previously championed. For example, Appellant’s current President (then VP) has
proclaimed: “Saying [Qualcomm] refuse[s] to license competitors is like saying
McDonald’s refuses to sell hamburgers [...] It’s nuts. It’s crazy.”9
Similarly, Appellant has repeatedly argued that FRAND promises require
licenses to chipmakers (indeed, to any party seeking a license), despite its recent
refusals to do so itself.10 Appellant even sued a rival chipmaker for breach of
FRAND based on the rival’s refusal to license Appellant.11 In the face of these
8
Supra, n.6. Appellant points to statements by AAG Delrahim as suggesting the
district court “relied on a theory” that was flawed. Motion at 1-2. But
Appellant never explains how any such “theory” conflicts with Mr. Delrahim’s
policy statements. Even if it did, Mr. Delrahim expressly desires to change
Supreme Court precedent, whereas the district court and this Court are required
to apply existing law. Notably, AG Barr, in sworn testimony to the FTC, has
also voiced views and “theories” contrary to Mr. Delrahim’s aspirational policy
positions. See supra, n.6, at n.4.
9
Gittlesohn, J., Battle of Tech Heavyweights, Orange County (Cal.) Reg. 1 2007
WLNR 30244838 (5/1/07).
10
E.g., Qualcomm’s Counterclaims, No. 05-3350 (D.N.J. Feb. 29, 2008), at ¶¶ 25,
56, 61, 77 (“Qualcomm … offers licenses on fair, reasonable and non-
discriminatory terms to any interested company.”; “Qualcomm has repeatedly
offered [a competitor] license terms for Qualcomm’s UMTS patents that
comply with FRAND and are at least as favorable as the terms Qualcomm has
offered to other chipset licensees.”).
11
No. SACV05-0467-JVS (C.D. Cal. Jan. 20, 2009), ECF No. 1606.
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judicial admissions, Appellant’s claims that the district court’s order was novel or
contrary to historical practices ring hollow.
b. THE HARM TO THE MARKET FROM STAYING SUBSTANTIALLY

OUTWEIGHS THE DUBIOUS ALLEGATIONS OF HARM TO ONE
COMPETITOR
1. The Order Protects Existing 4G/LTE and Emerging 5G

Markets at a Critical Transition
The Order carefully considered the likely effects on 5G markets if the
enjoined conduct were permitted to continue. For example, the Court concluded
that “[b]y harming rivals’ standing with industry participants, Qualcomm
suppresses rivals’ ability to generate additional business, develop new products,
and win the race to market. Instead, Qualcomm wins these opportunities, which
further entrenches Qualcomm’s monopoly chip power.” Order at 202. The Court
noted that Appellant seeks to “replicate its market dominance during the transition
to 5G, the next generation of modem chips.” Id. at 221. And the Court explained
that its remedies were designed to protect against the extension of monopolistic
behaviors into 5G markets. Id. at 228.
The Association agrees that entrenchment of monopoly power, and the
market distortions that SEP abuse engenders, threaten to irreparably harm the
marketplace at this critical stage of 5G deployment.
2. Appellant’s Allegations of Harm Are Substantially Overstated
Appellant’s allegations about potential harm to its individual business absent
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a stay do not withstand scrutiny.
Appellant argues, for example, that a stay is required to promote U.S.
leadership “in the development of the worldwide standards.” Motion, at 4. But
this argument does not make sense. While Appellant is undoubtedly an important
player in telecommunications development, the suggestion that Appellant is the
only company (much less the only U.S. company) situated to develop and promote
future cellular technologies is, at best, overstatement. 5G development is and has
been exceedingly collaborative, with hundreds of American and foreign companies
working together. Cellular development will continue (and will continue to
include Appellant) absent a stay.
Moreover, like the DOJ’s assertions of harm to U.S. interests (discussed
below), none of Appellant’s assertions about future innovation are tied to the
alleged need for a stay. Nothing in the Court’s Order restricts Appellant from
selling its 5G devices for a fair price, licensing its 5G patents on FRAND terms, or
using the proceeds from those fair market transactions to fund ongoing
development. Appellant’s premise that compliance with the Order would prevent
Appellant’s participation in the 5G marketplace – and continuing sales of 5G chips
– is simply false.
Appellant argues that the Order will require it to enter into license
agreements that “will remain in place for years.” Motion, at 25. But the Order
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requires no such thing. Appellant could avoid such self-styled (and overblown)12
harms by structuring any new agreements to terminate if the Order is overturned
(or, for existing licensees, to revert to current licensing terms). In this way,
Appellant may comply with the Order while ensuring that its business relationships
can return to the status quo ante if the Order is altered on appeal.
Similarly, nothing in the Order precludes Appellant from pricing its chips at
fair prices during the appeal, including compensation for its patent rights. While
exhaustion may apply to those sales during appeal, it is unclear why Appellant
would suffer harm when it has been fully compensated for its products and patent
rights.
Appellant’s suggestion that it will suffer harm if it must parse through its
patent portfolio to determine which patents must be licensed at the component-
level and which must be licensed at the OEM-level is similarly false. Motion, at 7.
The Order requires no such thing, either explicitly or implicitly. First, cellular
standards are implemented at the chip level,13 and the Order addresses those
12
The district court found that Appellant (and other SEP holders, like Ericsson)
regularly and repeatedly negotiated exhaustive cross-licenses with component
makers until more recently changing their licensing practices. Order at 128-
130. Requiring Appellant to revert to this practice during appeal is hardly
compelling evidence of irreparable harm.
13
E.g., GPNE Corp. v. Apple, Inc., No. 12-CV- 02885-LHK, 2014 WL 1494247,
at *13 (N.D. Cal. Apr. 16, 2014) (holding “as a matter of law that in this case
[involving 3G and 4G alleged SEPs], the baseband processor is the proper
smallest salable patent-practicing unit”).
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patents that Appellant has declared essential to cellular standards. Second,
regardless of whether Appellant’s patents are drafted at a system or network-level,
Appellant can exhaustively license rival chipmakers for its entire SEP portfolio.
This is demonstrated, for example, by the exhaustive cross-licenses to Appellant’s
own chip business. Order, at 127-128. It never has been the law that only directly
infringing devices may become licensed; an exhaustive license to any system or
network-level SEPs in Appellant’s portfolio would protect rival chipmakers from
claims of both direct infringement (i.e., by themselves) and indirect infringement
(i.e., by their customers).
In short, under the Order, Appellant retains the right and ability to obtain
FRAND compensation for its inventions, to price its chips fairly (including the
value of its patents), and to enter agreements addressing any possibility that the
Order might be overturned.
3. A Stay Would Harm U.S. Interests
The late-filed DOJ brief advocates policies contrary to applicable precedent
and mainstream responses to SEP abuse, and is devoid of any factual support for
its assertions of harm to national security. The DOJ asserts, without support, that
requiring Appellant to sell chips at fair prices (including compensation for the
value of patents, as permitted by the Order) or to license rivals in return for
FRAND compensation (also as permitted by the Order) would undermine national
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interests in 5G development and standard setting.
But 5G standards have already been published.14 And, while development is
always ongoing, there is no factual or causal link in the record or that can be
established to show that Appellant’s cellular development innovation will cease if
it is permitted “only” fair (rather than unfair monopoly) compensation for its chips
and patents during this appeal. As the DOJ itself readily admits, Appellant remains
a leading chip supplier, with heavy incentives to continue development.
More importantly, the DOJ provides no basis—nor is there any in the record,
in Appellant’s motion, nor in Ericsson’s brief—to conclude that there would be
any impact on the sale of 5G cellular chips during the pendency of this appeal if
the injunction is not stayed. On the contrary, the evidence shows that Appellant
will continue to sell, and customers will continue to buy and use, its chips while
this appeal follows its course.15
In short, it does not appear that the public interest is negatively impacted at
all by application of the injunction during the 6-9 months of this appeal, much less
that any negative effects outweigh the public interest in fair competition during the
transition to 5G. Contrary to Appellant and the DOJ’s suggestion, and as held by
14
https://www.3gpp.org/release-15.
15
Ordinarily, and inconsistently with the DOJ’s position here, the government
avoids sole-supplier situations. E.g., 2 CFR §200.320.
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one court in assessing Appellant’s arguments, long-term innovation (including
American innovation) is impeded, not promoted, by allowing Appellant to
continue its monopolistic practices during this appeal.16
c. THE VIEWS PRESENTED BY THE OTHER PRO-STAY AMICI ALSO DO

NOT DEMONSTRATE HARM ABSENT A STAY
The two other amici briefs in support of Appellant’s position do not provide
support for a stay. As noted in the Order, Ericsson recently began copying
Appellant’s licensing model. Order at 130-132 (rejecting “Ericsson’s self-serving
and made-for-litigation justifications for refusing to license modem chip suppliers”
as inconsistent with Ericsson’s prior statements). In other words, Ericsson’s
motivation is to protect its dubious licensing practices. Ericsson also neglects to
mention that it previously filed complaints against Appellant asserting antitrust
violations based on Appellant’s refusal to license competing chipmakers. Dkt.
893, at 13. Ericsson likewise omits that it has exhaustively licensed its own
cellular SEPs to Appellant for Appellant’s chipsets. Order, at 128.
Former Judge Michel’s brief addresses the importance of strong IP rights.
The Association, as an organization representing patent owners and innovators,
likewise supports a strong IP system. But Judge Michel suggests an unbalanced
approach that fails to protect against abusive behaviors and relies on false
16
Supra, n.1.
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premises, rather than the record here. For example, Judge Michel appears to
accept Appellant’s incorrect statements, contrary to the findings in the Order, that
“all major licensors of cellular patents license their patents not to rival chipmakers
but to original equipment manufacturers.” Michel Amicus, at 7. Additionally, the
scholarship relied on by Judge Michel was sponsored and paid for by Appellant.
E.g., Qualcomm v. Apple, ITC 337-TA-1065 (Sept. 28, 2018) (“From [Mr. Sidak’s]
financial relationship with Qualcomm[,] bias may be presumed, and … it would be
an abuse of my discretion to give any material credibility to this witness or his
findings.”). In denying the problem of SEP hold-up and rejecting the obligation to
license SEPs to chip makers, Judge Michel also appears to reject 9th Circuit
precedent. Microsoft v. Motorola, 795 F.3d 1024, 1031 (9th Cir. 2015) (an “SEP
holder cannot refuse a license to a manufacturer who commits to paying the RAND
rate”).
IV. CONCLUSION
The Court’s Order protects fair competition at a crucial time. The harm to
the marketplace and consumers associated with SEP abuse far outweighs any
potential harm to one competitor. Appellant has not made a compelling case to
justify a stay of the Order.
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PERKINS COIE LLP
By: s/ Sarah Fowler

Sarah Fowler
ATTORNEY FOR AMICUS CURIAE

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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
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PERKINS COIE LLP
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Sarah Fowler


19-07-19 ACT The App Association Amicus Brief

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19-07-19 ACT The App Association Amicus Brief

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Case: 19-16122, 07/19/2019, ID: 11370470, DktEntry: 37-1, Page 1 of 7

FEDERAL TRADE COMMISSION,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

MOTION FOR LEAVE TO FILE BRIEF OF

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(a)(4)(A),

and has no stock. It therefore has no parent corporations or any publicly-held

corporations that own 10% or more of stock.

Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, ACT | The

App Association (“The Association”) respectfully moves for leave to file an

amicus curiae brief in opposition to Defendant-Appellant’s Motion for Partial Stay

position on this motion.

The Association (formerly known as the Association for Competitive

Technology) is an international grassroots advocacy and education organization

and continue innovating.

The Association’s interest in this case is as follows: The Association has

been monitoring recent developments in this case because of the significant

improving the welfare of consumers, the Association has a special interest in

The Association has participated as amicus curiae in a number of cases

involving technological innovation. See, e.g., TC Heartland LLC v. Kraft Foods

Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014); Dastar Corp. v. Twentieth

appeal. See Amicus Curiae Brief in Support of the FTC’s Opposition to

Motion for Leave to File an Amicus Curiae Brief in Opposition to Qualcomm's

Motion for Stay Pending Appeal (D.I. 1503).

Based on its strong interest in fostering innovation and protecting the

on communications standards—particularly small business innovators who rely on

standardized technologies during this critical time of development and deployment

Association has substantial knowledge and a unique perspective on these issues

assessing the “potential ramifications beyond the parties directly involved.”

various members of the industry—including countless verticals outside of

traditional telecommunication businesses—during this critical transition. If SEP

DATED: July 19, 2019

PERKINS COIE LLP

By: s/ Sarah Fowler

ATTORNEYS FOR AMICUS CURIAE

DATED: July 19, 2019

PERKINS COIE LLP

By: s/ Sarah Fowler

ATTORNEYS FOR AMICUS CURIAE

DATED: July 19, 2019

PERKINS COIE LLP

By: s/ Sarah Fowler

ATTORNEYS FOR AMICUS CURIAE

FEDERAL TRADE COMMISSION,

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR

BRIEF OF AMICUS CURIAE ACT | THE APP ASSOCIATION

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rules of Appellate Procedure 26.1 and 29(a)(4)(A),

and has no stock. It therefore has no parent corporations or any publicly-held

corporations that own 10% or more of stock.

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES AND CONVENTIONS ............................................ ii

RULE 29(A)(4)(E) STATEMENT ......................................................................... iv

I. RULE 29 STATEMENT OF INTEREST ..................................................... 1

II. INTRODUCTION ......................................................................................... 1

III. ARGUMENT ................................................................................................. 3

a. FRAND Exists to Shield Against IP Abuses—As Qualcomm’s

1. FRAND’s Critical Role During the Transition to 5G ................3

2. The Association’s Views on FRAND Are Mainstream ...................4

3. Until Recently, Appellant Shared the Association’s Views ............5

b. The Harm to the Market from Staying Substantially Outweighs

1. The Order Protects Existing 4G/LTE and Emerging 5G