Amici Brief 

5:17-CV-00220-LHK 

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Amanda Tessar (pro hac vice pending) 

ATessar@perkinscoie.com 

PERKINS COIE LLP 

1900 Sixteenth Street, Suite 1400 

Denver, CO 80202-5255 

Telephone: 303.291.2357 

Facsimile: 303.291.2457 

Sarah E. Stahnke, California Bar #264838 

SStahnke@perkinscoie.com 

PERKINS COIE LLP

3150 Porter Drive 

Palo Alto, CA 94304-1212 

Telephone: 650.838.4489 

Facsimile: 650.838.4350 

ATTORNEYS FOR AMICI CURIAE

ACT | THE APP ASSOCIATION AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a Delaware 

corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK 

BRIEF OF INDUSTRY ASSOCIATION 

AMICI CURIAE IN SUPPORT OF 

FTC’S MOTION FOR SUMMARY 

JUDGMENT ON QUALCOMM’S 

ESSENTIAL PATENT LICENSING 

COMMITMENTS 

Date: February 21, 2019 

Time: 1:30 PM 

Place: San Jose Courthouse, Courtroom 8 

Judge: Hon. Lucy Koh 

Case 5:17-cv-00220-LHK Document 857-2 Filed 09/17/18 Page 1 of 13
 

TABLE OF CONTENTS

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I. STATEMENT OF INTEREST ........................................................................................... 1 

II. PRELIMINARY STATEMENT ......................................................................................... 2 

III. BACKGROUND AND CONTEXT: WHY ENFORCEMENT OF THE FRAND 

PROMISE MATTERS TO AMICI ..................................................................................... 3 

IV. NEITHER THE TIA NOR THE ATIS IPR POLICY IS SUSCEPTIBLE TO AN 

INTERPRETATION PERMITTING REFUSALS TO LICENSE ..................................... 6 

V. CONCLUSION ................................................................................................................... 9 

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TABLE OF AUTORITIES 

 PAGE(S) 

CASES

AIU Ins. Co. v. Superior Court, 

51 Cal. 3d 807 (1990) .................................................................................................................9 

Apple Inc. v. Qualcomm, Inc., 

Case No. 3:17-cv-00108-GPC-MDD (N.D. Cal Sept. 7, 2017) ..................................................8 

Apra v. Aureguy, 

361 P.2d 897 (Cal. 1961) ............................................................................................................6 

Ericsson, Inc. v. D-Link Sys., Inc., 

773 F.3d 1201 (Fed. Cir. 2014) ...................................................................................................8 

Gerdlund v. Elec. Dispensers Int’l, 

190 Cal. App. 3d 263 (1987) .......................................................................................................7 

GPNE Corp. v. Apple, Inc., 

No. 12-CV- 02885-LHK, 2014 WL 1494247 (N.D. Cal. Apr. 16, 2014) ...............................3, 8 

Kerkeles v. City of San Jose, 

243 Cal. App. 4th 88 (2015) .......................................................................................................6 

Microsoft Corp. v. Motorola, Inc., 

696 F.3d 872 (9th Cir. 2012) .......................................................................................................7 

Microsoft v. Motorola, 

795 F. 3d 1024 (9th Cir. 2015) ................................................................................................7, 8 

Nat’l Union Fire Ins. Co. v. Lynette C., 

228 Cal. App. 3d 1073 (1991) .....................................................................................................7 

Thrifty Payless v. Mariners Miles Gateway, LLC, 

185 Cal. App. 4th 1050 (2010) ...................................................................................................7 

Turner v. Met. Life Ins. Co., 

56 Cal. App. 2d 862 (1943) .........................................................................................................7 

Vons Cos. v. U.S. Fire Ins. Co., 

78 Cal. App. 4th 52 (2000) .........................................................................................................6 

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I. STATEMENT OF INTEREST 

Amici curiae (the “Industry Association Amici” or “Amici”) respectfully offer their 

thoughts and perspectives regarding the important issues presented in this adjudication of the 

Federal Trade Commission’s (“FTC”) claims against Qualcomm Incorporated (“Qualcomm”). 

For the avoidance of doubt, Amici address here only the specific legal issue of contractual 

interpretation presented in the FTC’s Motion For Partial Summary Judgment On Qualcomm’s 

Standard Essential Patent Licensing Commitments (Dkt. 792), not the ultimate merits of the 

FTC’s competition law claims. 

Amicus ACT | The App Association (“ACT”) is an industry organization comprising 

more than 5,000 “app” (i.e., application) companies and information technology firms in the 

mobile economy. It 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. Further information about ACT and its activities is available at 

http://actonline.org. Because members of ACT rely on, utilize, and innovate on top of 

standardized technologies, including technologies for wireless communication, it is deeply 

interested in ensuring a fair, efficient ecosystem for technical standards. These issues impact 

small business innovators during this critical time of development and deployment for new “Fifth 

Generation” (5G) and “Internet of things” (IoT) technologies. In line with its members’ core 

interests in this area, ACT has established an initiative known as “All Things FRAND.” As part 

of this initiative, ACT maintains a comprehensive website and blog, accessible at 

http://www.allthingsfrand.com, publishing information and perspectives affecting the industry. 

Amicus Computer & Communications Industry Association (“CCIA”) is an international 

nonprofit association representing a broad cross-section of computer, communications, and 

Internet industry firms that collectively employ nearly one million workers and generate annual 

revenues in excess of $540 billion. CCIA believes that open and competitive markets foster 

innovation. CCIA’s members contribute to technical standards and create innovative products 

that utilize those standards. CCIA believes that technical standards best foster innovation when 

standard-essential patent licensing is conducted in a fair and well-understood manner compliant 

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with the terms of the patent policy selected by the standard-setting organization. Further 

information about CCIA, including a list of its members, is available at http://www.ccianet.org. 

As significant industry stakeholders with experience in FRAND, SEPs, and related 

competition law matters, the Industry Association Amici respectfully offer their perspective to the 

Court in evaluating the legal issues presented by the FTC’s Motion for Partial Summary 

Judgment. This brief is submitted on behalf of ACT and CCIA themselves; none of ACT’s or 

CCIA’s member or sponsors authored this brief in whole or in part, nor did any member or 

sponsor make a monetary contribution to ACT or CCIA intended to fund the preparation of this 

brief. 

II. PRELIMINARY STATEMENT 

Amici create, use, and rely on robust standards for wireless communications. Our 

signatories include trade associations representing businesses that collectively spend tens of 

billions of dollars annually on R&D, own hundreds of thousands of patent assets, generate 

hundreds of billions in annual revenue, and represent numerous vertical industries outside of 

traditional telecommunications. 

Some of Amici’s members participate in standards development organizations (SDOs), 

such as the Alliance for Telecommunications Industry Solutions (ATIS) and the 

Telecommunications Industry Association (TIA), working to develop innovative new standards, 

contributing their patented technologies to those endeavors in the process. Some of Amici’s 

members innovate “downstream,” using the capabilities provided by standardized communication 

components purchased from chip and module companies. These downstream innovators add 

value in novel ways, using standardized background communication capabilities in the process. 

Some members participate at both levels. Amici represent many different industries, not just 

traditional telecommunications, but also services, automotive, retail, manufacturing, and software. 

While some of Amici’s members are large international companies, they also include a number of 

small businesses – companies that utilize standardized communications and want to ensure that 

their innovations will not be unfairly harmed by abuses relating to standard essential patents 

(SEPs). 

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The Industry Association Amici here care deeply about wireless communication standards 

because they provide a baseline of functionality around which their members innovate, develop 

products, engage with customers, and create value for their industries and, ultimately, for 

consumers. The promise to license on fair, reasonable, and non-discriminatory (FRAND) terms 

protects our members’ interests as essential patent holders and their interests as users of 

standardized technologies. The FRAND promise is also designed to ensure that the value of 

standardization (e.g., the added value created by the industry’s agreement to design products in 

specific ways so that they remain interoperable) is not undermined by private interests. 

In that vein, Amici write to support the FTC’s position that the FRAND obligations set 

forth in the ATIS and TIA licensing policies do not exclude some market participants, such as 

“competing modem-chip sellers.”1

 As at least four United States courts have noted, the FRAND 

promise does not include such hidden exclusions and does not permit a party to refuse to license 

some parties by virtue of their position “upstream” or “downstream” in the supply chain. Instead, 

the FRAND promises made here mean what they say—i.e., that a FRAND promisor must license 

to “all applicants” (the TIA contract) and to “applicants desiring to utilize the license for the 

purpose of implementing the [relevant ATIS] standard” (the ATIS contract). 

III. BACKGROUND AND CONTEXT: WHY ENFORCEMENT OF THE FRAND 

PROMISE MATTERS TO AMICI 

Amici’s interest in this topic is straightforward: in today’s economy, businesses 

incorporate, use, and rely on wireless communications functionality in all sorts of ways, and it is 

imperative to a healthy marketplace and to fair competition that licenses to those technologies 

remain available on FRAND terms to all market participants. 

In general, Amici’s members’ supply chains for wireless technologies begin with the 

 

1

 For the avoidance of doubt, Amici take no position in this brief on the ultimate merits of the 

FTC’s competition law claims in this action and understand that the FTC’s Motion expressly 

excludes such issues. Motion, at 1-2. Amici address solely the legal, contractual issue set 

forth in the FTC’s motion regarding the “meaning of ... FRAND commitments to TIA and 

ATIS.” Motion, at 3. 

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modem chip manufacturers, who make and sell the components enabling and embodying 

standardized functionality.2 In some cases, the chips supplied by those manufacturers may be 

incorporated directly into end-user devices, such as mobile handsets. But, in other situations or 

industries, those modem chips are combined with other components by so-called “module 

manufacturers” as part of standards-compliant circuit boards or as “embedded modules,” 

providing more of a “plug-and-play” approach. Such modules themselves may then be 

incorporated into an end device, such as a router or “Internet of Things” application, or may be 

further embedded into more complex assembled devices. For example, an automotive telematics 

system provides users with data access for traffic, internet connectivity, and other useful 

applications. In turn, these more complex systems may then be further incorporated into an end 

device, such as a car. And, finally, services or other industry users might deploy, integrate, or 

build upon those end devices in various ways, such as a software company that develops 

applications using mobile technologies or a warehouse or retail business that uses 

telecommunication sensors to track inventory. Amici’s members include companies at these 

various “upstream” (chip) and “downstream” (component, end product, software, and services) 

supply chain “levels.” 

Amici recognize and respect that “downstream” companies may, in some cases, seek to 

obtain their own SEP license. There can be many reasons for this, such as a preference to 

negotiate terms directly or to maintain an ability to use multiple suppliers regardless of their 

individual license status. 

But, in many cases, it can be more reasonable and practical for a downstream customer to 

rely on its upstream component maker(s) to negotiate and obtain any necessary SEP licenses. For 

example, the modem chip market is highly concentrated, with a small number of companies 

comprising substantially all the output available to customers, so a few licenses among chip 

competitors could negate the need for individual licenses to the tens of thousands (or more) 

 

2

 See generally 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 [where the 

asserted patents were claimed to be essential to 3G and 4G cellular standards], the baseband 

processor is the proper smallest salable patent-practicing unit”). 

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downstream companies that purchase and incorporate those modem chips and thereby reduce 

negotiation costs significantly. Likewise, suppliers that develop, manufacture, and sell the 

standardized components may be in the best position to evaluate patents covering those 

technologies and thus to negotiate regarding their validity, essentiality, and value. By contrast, a 

downstream company may have little or no expertise with the details of upstream wireless 

technologies and may therefore prefer to obtain fully-licensed components from their suppliers 

that design and manufacture those components. 

The FRAND promise made as part of participation in the TIA and ATIS standard-setting 

process allows for both of these scenarios by requiring the promisor to provide licenses to “all 

applicants” and “applicants,” without distinguishing, limiting, or carving out applicants who 

emerge from particular levels of the supply chain. 

In other words, as customers (either direct or indirect) for telecommunications components, 

including modem chips, and also as SEP owners (or with members who are such SEP owners) that have 

committed to license patents on FRAND terms, Amici support FRAND’s clear obligation to license an 

implementer that seeks a license – regardless of that licensee’s position in the supply chain. We have 

previously addressed these concerns, as have more than 50 industry leaders and more than 70 academic 

and thought leaders to the United States Department of Justice3

 and to the FTC.4 In short, an SEP-

 

3

 See Multi-Association Letter to AAG Delrahim (letter from six trade associations representing 

more than $3 trillion in GDP, noting that FRAND commitment entails that license is available 

to any implementer), available at http://www.ccianet.org/wp-content/uploads/2018/05/MultiAssn-DOJ-White-Paper-053018.pdf; Industry Letter to AAG Delrahim Regarding Standards, 

Innovation and Licensing (letter from fifty-eight companies, academics, and SMEs noting that 

enforcement of obligation to license is an expected consequence of FRAND promise), 

available at http://www.ccianet.org/wp-content/uploads/2018/01/Industry-Letter-to-DOJAAG.pdf; Academic and Former Regulator Letter to AAG Delrahim Regarding Speeches on 

Patents and Holdup (letter from seventy-seven academics and former United States agency 

personnel, explaining that the “holder of a standard essential patent voluntarily chooses to 

license on a FRAND basis, receiving in exchange the SSO’s ‘seal of approval’ and the 

potential for significantly increased volume that comes with that seal, which is well worth the 

FRAND promise”), available at https://www.competitionpolicyinternational.com/wpcontent/uploads/2018/05/DOJ-patent-holdup-letter.pdf. 

4

 See Comments of Cross-Sectoral Multi-Association Group to FTC (public comments from 

letter from six trade associations representing more than $3 trillion in GDP, noting that 

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holder’s legitimate interest in obtaining FRAND compensation for its SEPs (an interest Amici recognize 

and support) can faithfully be upheld regardless of the identity of the licensee or its place in the supply 

chain. Indeed, any other reading would be inconsistent with the plain language of the FRAND promises 

at issue here. 

IV. NEITHER THE TIA NOR THE ATIS IPR POLICY IS SUSCEPTIBLE TO AN 

INTERPRETATION PERMITTING REFUSALS TO LICENSE 

Turning to the plain language of the TIA and ATIS IPR policies, we concur with the 

FTC’s view that those policies do not admit of any interpretation limiting the benefit of the 

FRAND licensing obligation to only some companies and not others. 

For SDO participants that have submitted a FRAND undertaking, the requirements are 

clearly articulated at both organizations: 

 TIA requires that FRAND licenses are available to “all applicants.”5

 To provide 

even greater clarity that refusals to license “competing modem-chip sellers” are 

prohibited, the TIA IPR Guidelines expressly note that “[a]n example of conduct 

that would constitute discrimination is a willingness to license all applicants except 

for competitors of the licensor.”6 

 The ATIS IPR Policy similarly requires that licenses are available to “applicants 

desiring to utilize the standard,”7 without any restrictions on the level of the supply 

chain in which such utilization occurs. 

Amici agree that this language is clear and not susceptible to an interpretation that would permit 

exclusion of “competing modem-chip makers” from the benefit of the FRAND promise. A 

contrary read would, in effect, seek to contradict the text of the IPR policies by cropping in words 

and limitations that are simply not present. California law does not permit a reading that 

contradicts the express language of a contract.8 The TIA and ATIS policies, on their faces, 

 

FRAND commitment entails that license is available to any implementer), available at

https://www.ftc.gov/policy/public-comments/2018/08/20/comment-ftc-2018-0055-d-0031.

5

 FTC Motion, Ex. 1 (the “TIA IPR Policy”) at ¶ 3.1.1(2)(b). 

6

 FTC Motion, Ex. 30 (the “TIA IPR Guidelines”) at ¶ 5 (emphasis added). 

7

 FTC Motion, Ex. 2 (the “ATIS IPR Policy”) at ¶ 10.4.2 

8

 Parol evidence cannot be admitted to contradict the plain language of an agreement. See, e.g., 

Vons Cos. v. U.S. Fire Ins. Co., 78 Cal. App. 4th 52, 58-59 (2000) (“Our function is to 

determine what, in terms and substance, is contained in the contract, not to insert what has 

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simply do not permit an interpretation limiting the beneficiaries of the licensing promise to 

“some” applicants, but not others.9

This common-sense interpretation of the FRAND promise – i.e., an interpretation that 

does not seek to impose hidden, unstated restrictions – is well supported in the applicable 

FRAND case law. As the Ninth Circuit has explained across multiple cases: 

 “To mitigate the risk that a SEP holder will extract more than the fair value of its 

patented technology, many SSOs require SEP holders to agree to license their 

patents on ‘reasonable and non-discriminatory’ or ‘RAND’ terms. Under these 

agreements, an SEP holder cannot refuse a license to a manufacturer who 

commits to paying the RAND rate.”10

 A FRAND obligation includes a “requirement to negotiate licenses with all 

seekers.”11

 A FRAND promise to “grant a license to an unrestricted number of applicants on 

a worldwide, non-discriminatory basis and on reasonable terms and conditions to 

use the patented material necessary ... admits of no limitations as to who or how 

 

been omitted. We do not have the power to create for the parties a contract that they did not 

make and cannot insert language that one party now wishes were there.”); Kerkeles v. City of 

San Jose, 243 Cal. App. 4th 88, 99 (2015) (“We may not add terms reflecting an 

understanding that is not evident in the plain language of the parties’ contract.”) (citing Apra 

v. Aureguy, 361 P.2d 897, 899 (Cal. 1961)). 

9

 There are many California cases, in a range of different contexts, illustrating this general 

principle. For example, under California law, a contract providing for termination “at any 

time and for any reason” cannot have conditions added limiting the termination right to “any 

good reason.” Gerdlund v. Elec. Dispensers Int’l, 190 Cal. App. 3d 263, 273-74 (1987) 

(emphasis added). Likewise, a contract specifying benefits to an employee’s “children” 

cannot reasonably be interpreted to exclude some of the employee’s children (i.e., the 

illegitimate ones). Turner v. Met. Life Ins. Co., 56 Cal. App. 2d 862, 869 (1943) (where 

“there are no words of limitation or restriction used” in the contract, “children” must be 

interpreted to include all of the insured’s children, including illegitimate children). The 

California Court of Appeals has also held, in the insurance context, that “an insured” means 

“any insured under the policy.” Nat’l Union Fire Ins. Co. v. Lynette C., 228 Cal. App. 3d 

1073, 1079 (1991). Similarly, a clause providing that both “Tenant and Landlord” have a 

right to terminate an agreement could not be construed to mean that only the tenant had a 

termination right. Thrifty Payless, Inc. v. Mariners Miles Gateway, LLC, 185 Cal. App. 4th 

1050, 1060-61 (2010). Likewise here, it would frustrate and contradict the language of the 

TIA IPR Policy and the ATIS IPR Policy to construe “applicants desiring to utilize the 

standard” or “all applicants” to mean “only some applicants.” 

10 Microsoft Corp. v. Motorola, Inc., 795 F. 3d 1024, 1031 (9th Cir. 2015) (emphasis added). 

11 Id. (emphasis added). 

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many applicants could receive a license ....”12

The Federal Circuit has likewise noted, in addressing the application of Georgia Pacific factors in 

the context of SEPs: 

“[T]he licensor’s established policy and marketing program to maintain 

his patent monopoly by not licensing others to use the invention [is not 

relevant for SEPs]. [...] Because of [the] RAND commitment [...] it 

cannot have that kind of policy for maintaining a patent monopoly.”13

And, more recently, addressing the ETSI licensing obligation that a SEP holder “be prepared to 

grant irrevocable licenses,” Judge Curiel noted that such language “plainly states that any willing 

licensee is entitled to license Qualcomm’s intellectual property at a FRAND rate.”14

 

12 Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 884 (9th Cir. 2012) (emphasis added). As 

the FTC motion notes (p.18), the Microsoft court was evaluating SDO language quite similar 

to the TIA policy. But the TIA IPR policy, as reflected in Exhibit 1 to the FTC motion, is 

even more express that “all applicants” (¶ 3.1.1(2)(b)) are entitled to a license than was the 

SDO policy addressed in Microsoft. 

13 Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1230 (Fed. Cir. 2014) (emphasis added). 

14 Order Denying Anti-Suit Injunction, Apple Inc. v. Qualcomm, Inc., Case No. 3:17-cv-00108-

GPC-MDD (N.D. Cal Sept. 7, 2017), ECF No. 141, available at 

https://cases.justia.com/federal/districtcourts/california/casdce/3:2017cv00108/522828/141/0.pdf?ts=1504946165. A number of 

foreign authorities have held to the same effect. In Europe, for example, the competition 

authorities have noted that the FRAND obligation entails a requirement not to refuse licenses. 

See, e.g., European Commission, Case AT.39985 - Motorola - Enforcement of GPRS 

Standard Essential Patents, European Commission ¶ 294 (April 29, 2014), available at 

http://ec.europa.eu/competition/antitrust/cases/dec_docs/39985/39985_928_16.pdf (“On the 

basis of that [FRAND] commitment, manufacturers of GPRS-compliant products can 

reasonably expect that Motorola makes its SEPs available on FRAND terms and conditions to 

all implementers.”) (emphasis added); European Commission, Communication from the 

Commission – Guidelines on the applicability of Article 101 of the Treaty on the Functioning 

of the European Union to horizontal co-operation agreements, ¶¶ 285-287, available at 

https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:52011XC0114(04)&from=EN (“In order to ensure 

effective access to the standard, the IPR policy would need to require participants wishing to 

have their IPR included in the standard to provide an irrevocable commitment in writing to 

offer to license their essential IPR to all third parties on fair, reasonable and nondiscriminatory terms. [...] FRAND commitments can prevent IPR holders from making the 

implementation of a standard difficult by refusing to license ... after the industry has been 

locked-in to the standard.”) (emphasis added). Likewise, in Korea, the competition 

authorities have concluded that FRAND requires that “access to and use of cellular SEPs 

should be guaranteed for the modem chipset manufacturers in accordance with the purposes 

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As in the Microsoft, Ericsson, and Apple matters, which addressed FRAND promises 

similar to – and in some cases, even less explicit than – the TIA and ATIS language under 

consideration here, the court should not interpret the TIA IPR Policy or the ATIS IPR Policy to 

include unstated limitations excluding some types of companies from its purview.15 The 

obligation to license third parties, including “competing modem-chip manufacturers,” is the plain 

and unambiguous consequence of the defendant’s FRAND promises.16

V. CONCLUSION 

The texts of the TIA IPR Policy and of the ATIS IPR Policy are clear, as is the applicable 

 

of standard-setting and FRAND commitments.” See Korea Fair Trade Commission, Decision 

No. 2017-0-25, In re Alleged Abuse of Market Dominance of Qualcomm Inc., ¶ 235 (Jan. 20, 

2017), available at http://www.theamericanconsumer.org/wp-content/uploads/2017/03/2017-

01-20_KFTC-Decision_2017-0-25.pdf. 

15 Because the language of the TIA IPR Policy and the ATIS IPR Policy is clear, there is no 

need to consider parol evidence. AIU Ins. Co. v. Superior Court, 51 Cal. 3d 807, 822 (1990). 

It would be misplaced here, moreover, to look to some companies’ course of conduct in 

seeking to license OEM-level companies to prove the intent of the TIA and ATIS standards, 

since there is a disconnect between those two situations. Whether some companies have, at 

least in more recent years, chosen to focus their licensing programs at the OEM level does not 

establish that a FRAND promisor does not need to license to a modem-chip competitor when 

such a competitor requests a FRAND license; it establishes only that the promisor falls short 

of its obligations to competitors under its FRAND promises if it refuses to license them as 

previously promised. 

16 While this matter can be decided as a matter of law based on the IPR Policy text as submitted 

by the FTC, Amici note that the defendant itself has previously espoused this same view in its 

own attested court filings, including claiming breach of FRAND based on a competing chip 

competitor’s refusal to license Qualcomm. See, e.g., Qualcomm’s Counterclaims and 

Affirmative Defense, ¶¶ 25, 56, 61, 77, No. 05-3350 (MLC) (JJH) (D.N.J. Feb. 29, 2008) ECF 

No. 139 (“Qualcomm, which owns a large portion of the intellectual property covering 

CDMA technology, operates a pro-competitive licensing model, in which it offers licenses on 

fair, reasonable and non-discriminatory terms to any interested company.”; “Qualcomm has 

repeatedly offered [a competing chip manufacturer] 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.”) (emphasis added); Qualcomm Opp. to Broadcom Motion 

to Dismiss, Strike or Summary Judgment, No. SACV05-0467-JVS (RNBx) (C.D. Cal. Jan. 

20, 2009), ECF No. 1606 (asserting violation of FRAND based on competing chipset 

manufacturer’s refusal to license Qualcomm). Indeed, in connection with prior litigation, the 

defendant’s current President (then Vice President) publicly stated: “Saying [Qualcomm] 

refuse[s] to license competitors is like saying McDonald’s refuses to sell hamburgers [...] It’s 

nuts. It’s crazy.” See Gittlesohn, J., Battle of Tech Heavyweights, Orange County Register 

(5/1/07) Orange County (Cal.) Reg. 1 2007 WLNR 30244838.

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-10- Amici Brief

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precedent addressing similar FRAND undertakings, that the promise to license on FRAND terms 

is not restricted to some market participants, and exclusive of “competing modem-chip 

manufacturers.” A clear and direct promise to license on FRAND terms, without restrictions, 

cannot reasonably be interpreted to include hidden, unstated limitations. Amici thanks the Court 

for its consideration of its views and perspectives. 

Dated: September 17, 2017 

By: /s/ Sarah E. Stahnke 

Amanda Tessar (pro hac vice pending) 

ATessar@perkinscoie.com 

PERKINS COIE LLP 

1900 Sixteenth Street, Suite 1400 

Denver, CO 80202-5255 

Telephone: 303.291.2357 

Facsimile: 303.291.2457 

Sarah E. Stahnke, California Bar #264838 

SStahnke@perkinscoie.com 

PERKINS COIE LLP

3150 Porter Drive 

Palo Alto, CA 94304-1212 

Telephone: 650.838.4489 

Facsimile: 650.838.4350 

ATTORNEYS FOR AMICI CURIAE

ACT | THE APP ASSOCIATION AND COMPUTER 

& COMMUNICATIONS INDUSTRY ASSOCIATION

Case 5:17-cv-00220-LHK Document 857-2 Filed 09/17/18 Page 13 of 13