FTC and Qualcomm argue over discovery in FRAND dispute
The US Federal Trade Commission ( FTC) and semiconductor company Qualcomm are at loggerheads over the inclusion of post-discovery evidence in their dispute, according to a recent filing.
Yesterday, October 17, the parties submitted a joint case management statement at the US District Court for the Northern District of California, San Jose Division, on developments since their last such statement, filed on September 5.
The dispute dates back to January 2017, when the FTC accused Qualcomm of using unfair tactics surrounding the licensing of standard-essential patents (SEPs) for semiconductors.
The FTC’s position is that it is now too late to conduct meaningful further discovery in the case. The agency claimed that up until last week, it had not heard from Qualcomm about post-discovery evidence in nearly eight months.
“While the parties have met and conferred regarding various discovery subjects up to and until the close of discovery, there has been no discussion of any potential further discovery refresh since February 2018,” the FTC claimed.
Qualcomm countered that the court should not accept the FTC’s request to exclude all evidence of events post-dating the close of discovery.
The company argued that it has been and is prepared to engage in discovery of relevant recent events to avoid the FTC’s concerns over “cherry-picking” of evidence.
“The parties should be ordered to promptly submit an agreed discovery protocol for the court’s approval,” Qualcomm added.
However, the FTC and Qualcomm were able to agree on various deadlines for pre-trial filings and exchanges, the first being November 1, when they will exchange initial lists of proposed stipulated facts.
After several more deadlines, December 6 will be the next major date in the parties’ diaries, as they aim to file proposed findings of facts and conclusions. The trial will begin on January 4, 2019.
In addition, the FTC and Qualcomm have asked for the court’s guidance on a number of issues, including trial exhibits, objections to such exhibits, trial schedule and post-trial briefing.
The statement was jointly signed by the FTC’s attorneys, and lawyers from Cravath, Swaine & Moore; Keker Van Nest & Peters; and Morgan, Lewis & Bockius—the three firms representing Qualcomm.
The filing comes five days after Nokia weighed in on the case by offering its support to Qualcomm, usually a rival of the semiconductor company.
In its amicus brief, Nokia warned against “novel and surprising interpretations” of the regulations governing SEPs which may have unintended consequences for SEP owners and the wider industry.
However, in response to Nokia’s claims, the FTC said they have no bearing on the proper interpretation of FRAND commitments.
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