Jennifer Milici, D.C. Bar No. 987096

Daniel Matheson, D.C. Bar No. 502490 

J. Alexander Ansaldo, Va. Bar No. 75870 

Joseph R. Baker, D.C. Bar No. 490802 

Elizabeth A. Gillen, Ca. Bar No. 260667 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

Tel: (202) 326-2912; Fax (202) 326-3496 

jmilici@ftc.gov

Lin W. Kahn, Ca. Bar No. 261387 

Federal Trade Commission 

901 Market Street, Suite 570 

San Francisco, CA 94103 

Tel: (415) 848-5115; Fax: (415) 848-5184 

lkahn@ftc.gov 

Attorneys for Plaintiff 

FEDERAL TRADE COMMISSION 

CRAVATH, SWAINE & MOORE LLP 

Gary A. Bornstein (pro hac vice) 

gbornstein@cravath.com 

Yonatan Even (pro hac vice) 

yeven @cravath.com 

825 Eighth Avenue 

New York, NY 10019-7475 

Telephone: (212) 474-1000 

Facsimile: (212) 474-3700

KEKER VAN NEST & PETERS LLP

 Robert A. Van Nest 

 rvannest@keker.com 

 633 Battery Street 

 San Francisco, CA 94111-1809 

 Telephone: (415) 676-2289 

 Facsimile: (415) 397-7188 

 MORGAN, LEWIS & BOCKIUS LLP 

 Richard S. Taffet (pro hac vice) 

 richard.taffet@morganlewis.com 

 101 Park Avenue 

 New York, NY 10178-0060 

 Telephone: (212) 309-0060 

 Facsimile: (212) 309-6001 

 MORGAN, LEWIS & BOCKIUS LLP 

 Donn P. Pickett (SBN 72257) 

 Donn.pickett@morganlewis.com 

 Geoffrey T. Holtz (SBN 191370) 

 Geoffrey.holtz@morganlewis.com 

 One Market, Spear Street Tower 

 San Francisco, CA 94105-1596 

 Telephone: (415) 442-1000 

 Facsimile: (415) 442-1001 

 Attorneys for Defendant 

 QUALCOMM INCORPORATED 

Additional Counsel listed on the Signature 

Page

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-NMC

DEFENDANT QUALCOMM 

INCORPORATED AND PLAINTIFF 

FEDERAL TRADE COMMISSION’S 

JOINT DISCOVERY STATEMENT 

REGARDING FTC’S INTERROGATORY 

RESPONSES 

Magistrate Judge: 

Hon. Nathaniel M. Cousins

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Defendant Qualcomm Incorporated (“Qualcomm”) and Plaintiff Federal Trade 

Commission (“FTC”) hereby submit this joint statement. The parties have met and conferred by 

telephone, but have been unable to reach agreement on the issues addressed herein. 

I. Qualcomm’s Position 

Qualcomm served 13 interrogatories on November 14, 2017. When the FTC refused to 

answer most interrogatories and said others were “premature,” Qualcomm moved to compel. On 

December 31, 2017, the Court ordered the FTC to “respond to all 13 [of Qualcomm’s] 

interrogatories and their subparts” by January 8, 2018. Dkt. 435. The January 8 responses were 

again deficient in numerous respects, and after further meeting and conferring, the FTC served 

further responses on February 7, 2018. Those responses are still deficient with respect to two 

fundamental aspects of the FTC’s action, but after further meeting and conferring, the FTC 

refused to provide anything more. The Court should order the FTC to either provide all facts in 

its possession to support these claims or to state unambiguously that it has no such facts. 

A. The Response to Interrogatory No. 5 States that There Are Responsive Facts 

Regarding the Alleged “Premium LTE” Market but Fails to Provide Them 

As in any antitrust case, the Complaint must clearly allege a relevant product market. 

The Complaint refers to a “premium LTE” market with inadequate explanation or definition. 

The scope of that alleged market is particularly critical here because, as the FTC contends, 

products quickly cease to be “premium” upon unspecified “technological advances.” Resp. to 

Interrog. 5. Given the hyper-competitive nature of the baseband processor industry, ascertaining 

the duration of the “premium LTE” products in which Qualcomm is alleged to have market 

power is a fundamental issue in this case. 

To that end, Qualcomm served Interrogatory 5, which sought in subsection (e): “the date, 

if any, on which each product identified in subsections (a) and (b) [the identified relevant 

products] ceased to be within the relevant product market, and a detailed description of why that 

is the date the product ceased to be in the relevant product market.” 

The FTC mischaracterizes this dispute; it is not the FTC’s failure to provide specific 

dates. But the FTC’s response concedes there is some point in time when each product exits the 

alleged relevant market, and this Interrogatory also seeks detailed information as to why each 

product was no longer in the alleged relevant market. The FTC cannot avoid providing this 

information simply by failing to provide specific dates. 

In its response, the FTC refers vaguely to certain features like modem speed, power 

consumption, and size. Missing from the response are any facts, or the requested detailed 

description of why any product is in or out of the market. For example, what was the “increase 

in uplink/downlink speed” that excluded from the alleged market each, or any, of the products 

the FTC lists? Similarly, what reduction in power consumption or reduction in size (chip form 

factor? process node?) defines the market? The FTC compounds this problem by stating that 

products are no longer “premium LTE” when they are “no longer considered for inclusion” in 

flagship or premium phones. That is circular reasoning, as the FTC must first set forth which. 

features, or the lack thereof, render a chip unsuitable for inclusion in “premium” phones. The 

generalized nature of the response alone renders it deficient. See Wilson v. Frito-Lay North 

America, Inc., 260 F. Supp.3d 1202, 1213 (N.D. Cal. 2017) (general references and “conclusory 

statements” to interrogatories are inappropriate when they request specific facts). 

Fact discovery is closing, and with its investigation, the FTC has had more than two years 

to answer these threshold questions. In this Joint Statement, the FTC acknowledges that it “does 

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not have the information.” But its Response states that there are facts without providing them. 

If the FTC has no facts regarding the characteristics that determine whether a chip is in the 

relevant market or not, then it must amend its response to so state. See Retiree Support Grp. v. 

Contra Costa Cnty., 2014 WL 7206849, at *3 (N.D. Cal. Dec. 18, 2014) (“The purpose of 

contention interrogatories is to narrow the issues that will be addressed at trial and to enable the 

propounding party to determine the proof required to rebut the respondent’s position”). It is 

important that the record be clear on the lack of supporting facts so that if and when the FTC 

attempts to introduce any evidence on this issue, a challenge can properly be assessed based on 

the prior failure to provide facts. Fed. R. Civ. P. 37(c)(1). 

Given the dynamic market alleged, with technology that is constantly developed, 

deployed, and then replaced, the transitory nature of the alleged market is an important factor. 

But from the FTC’s response there is no way to identify any meaningful boundaries of its alleged 

relevant market, when competitive products were included in the market and when they were 

not, and what the competitive conditions were at any given time in the alleged “premium LTE” 

baseband processor relevant market. These types of detailed facts are critical for assessing 

Qualcomm’s market power, if any, in the alleged market. See Adaptive Power Solutions, LLC v. 

Hughes Missile Sys. Co., 141 F.3d 947, 951-52 (9th Cir. 1998) (where competitor entered market 

after four- to ten-month delay, competitive harm was too “temporary” to be cognizable); United 

States v. Bazaarvoice, Inc., No. 13-CV-00133-WHO, 2014 WL 203966, at *70 & n.19 (N.D. 

Cal. Jan. 8, 2014) (“[t]he Court agrees that two years is an appropriate time-frame in this case”). 

This transience means that a hypothetical monopolist for today’s “premium” LTE chips will not 

have market power beyond a temporary basis because the products will cease to be “premium” in 

short order.1 Cf. United States v. Sungard Data Sys., Inc., 172 F. Supp. 2d 172, 182 (D.D.C. 

2001) (“rapid changes in computer capabilities and the reduced costs of both hardware and 

communications” defeated the market definition). But the FTC refuses to provide the facts to 

determine when or why — in its view — a “premium” LTE chip becomes “non-premium.” The 

FTC should be ordered to provide all facts, or to unambiguously state that it has none. 

B. The Response to Interrogatory No. 13 Provides No Facts Regarding the FTC’s 

Core Claim of “Raising Rivals’ Costs”

The FTC failed to provide any real information at all in response to Interrogatory Number 

13. This Interrogatory seeks the facts relating to a central allegation in the Complaint. The FTC 

asserts that Qualcomm, through its alleged conduct, “raises rivals’ costs” – i.e. raises the costs of 

competing chip suppliers. Dkt. 140 at 9. Its conduct allegedly “raises the cost of its rivals’ 

products.” Id. Its conduct allegedly “reduces competitors’ sales and margins.” Compl. ¶ 90. 

Contrary to the FTC’s argument, Qualcomm understands the FTC’s theory of the case 

and accurately represents it from the FTC’s own pleadings. This interrogatory was served to 

determine if there are any facts to support the FTC’s theory and claims of anticompetitive 

foreclosure. Interrogatory Number 13 accordingly asks the FTC to “[i]dentify any specific 

instances in which a rival baseband processor supplier incurred increased costs caused by any 

conduct of Qualcomm that You contend was anticompetitive, identify the amount of any such 

increased costs, and provide all facts Concerning or supporting Your response.” 

1

 To illustrate, if Qualcomm today has the “best” chip in terms of unspecified speed, efficiency, 

and size metrics, does it have 100% market share in “premium LTE?” And if two months from 

now, a competitor leapfrogs Qualcomm with a faster/smaller chip, does Qualcomm’s market 

share drop to 0%? It is critical that the FTC provide the facts and bases for its alleged market. 

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In response, all the FTC states as a substantive matter is that: “The portion of 

Qualcomm’s royalty that is attributable to its market power taxes an OEM when it purchases a 

baseband processor from a Qualcomm rival. The tax imposed by Qualcomm represents an 

economic cost to all rival baseband processor suppliers.” This response, while referring 

generally to a “tax,” provides no specific responsive facts. It does not identify a single rival 

baseband processor supplier, a single dollar amount in increased costs to any such supplier, a 

single OEM, or any facts at all. Nor does it explain how the alleged “tax” — an allegedly higher 

royalty cost to an OEM — “represents an economic cost” to rival chip suppliers. It simply 

provides an ipse dixit — that there is a “tax” because Qualcomm raises rivals’ costs. But the 

FTC refuses to say whose costs were raised or by how much or how. By this response, the FTC 

simply declares anticompetitive harm without disclosing a single fact to support it. 

This interrogatory goes to the core allegation of anticompetitive foreclosure in this case: 

the alleged “raising rivals’ costs.” The FTC cannot provide broad generalities but must provide 

the facts, if there are any. In re Northrop Grumman Corp. ERISA Litig., 2010 WL 11468588, at 

*4 (C.D. Cal. May 17, 2010) (compelling responses to interrogatories that were “core to the 

action” and requiring that responses “be full and complete in the sense that they must reflect all 

responsive information then currently in plaintiffs’ possession, custody or control”). No chip 

company pays Qualcomm royalties to manufacture chips. So what are the “raised costs?” 

It is not sufficient, as the FTC argues, to simply say that “all” chip suppliers — without 

naming any — experienced a “tax” in unspecified amounts, relating to unspecified OEMs and 

unspecified products, at unspecified times, in unspecified “markets,” is a sufficient and complete 

answer. That is plainly wrong. The FTC should be ordered to identify each chip rival whose 

costs were raised, provide the amounts of any such costs, and provide all facts concerning this 

claim. Or, if the FTC has no such facts, it must amend its response to state that it has none. 

With these interrogatories pending since mid-November, the FTC should be ordered to 

amend its responses to Interrogatories Nos. 5 and 13 within five days. 

II. FTC’s Position 

The FTC has fully answered Interrogatory 5(e) and Interrogatory 13. The FTC has no 

further information to provide regarding Interrogatory 5(e). And while the FTC’s response to 

Interrogatory 13 is also sufficient, as a compromise, the FTC will agree to provide a further 

response to Interrogatory 13 within seven days of the close of fact discovery. 

A. The FTC Has Fully Answered Interrogatory 5(e) 

The FTC’s response to Interrogatory 5 provided a detailed explanation of the two product 

markets alleged in the FTC’s Complaint: the CDMA processor market and the premium LTE 

market. The FTC’s response identified the dozens of specific products Qualcomm and each of its 

rivals offered in each market, by year. See Ex. A at 21-28. The FTC provided all of the 

information available, despite the fact that expert discovery has not been completed, and product 

market definition in antitrust cases is informed heavily by the work of expert economists. 

Ignoring the considerable information the FTC has provided, Qualcomm now complains 

that the FTC has not provided the precise date on which each relevant baseband processor 

product ceased to be included in one of the markets (premium LTE). But the FTC has clearly 

answered this question, stating: 

With respect to the CDMA market, the products identified in response to parts (a) 

and (b) of this Interrogatory ceased to be in the relevant market when they were 

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discontinued. As of the date of this response, the FTC does not know the date

on which each discontinued product was discontinued. 

With respect to the premium LTE market, the products identified in response to 

parts (a) and (b) of this Interrogatory ceased to be in the relevant market when 

subsequent technological advances had reached the point that they were no longer 

considered for inclusion within flagship or premium tier handsets. [...] As of the 

date of this response, the FTC does not know the date on which any of the 

products identified above was no longer considered for inclusion within flagship 

or premium tier handsets. Ex. A at 27-28 (emphasis added). 

Thus, Qualcomm has received a simple answer: the FTC cannot identify any date on 

which any relevant product ceased to be within a relevant product market. The FTC is neither 

concealing any information nor refusing to answer on the grounds that the request is premature. 

To the contrary, the FTC has stated that it does not have, and cannot reasonably obtain, the 

information Qualcomm demands. Should the information become available to the FTC through 

expert analyses or otherwise, the FTC will amend its Interrogatory responses in a timely manner, 

precisely as envisioned by Fed. R. Civ. Pro. 26(e), which instructs the FTC to correct its 

response “in a timely manner if the party learns that in some material respect the [response] is 

incomplete or incorrect.”2

Qualcomm admits that it has no problem with the fact that the FTC “concedes it does not 

know” the dates the Interrogatory seeks. See supra at 1. Qualcomm’s real complaint is that the 

FTC did not provide a “detailed description of why any product is in or out of the market.” See 

supra at 1. But that is not what the Interrogatory asked for. The Interrogatory asked for dates, 

and since the FTC cannot identify any dates on which any products ceased to be in the relevant 

market, the FTC also cannot give a “description of why that is the date the [unidentified] product 

ceased to be in the relevant product market.” 

Qualcomm cannot use a Joint Discovery Statement to amend its interrogatories and 

demand answers to new questions. And it is not well taken for Qualcomm to demand that the 

FTC, within 5 days, exhaustively explicate the technical characteristics of relevant product 

markets while Qualcomm’s own responses to the FTC’s Interrogatories (provided one month 

before the close of discovery) are replete with objections and refusals to answer interrogatories 

that are supposedly premature, or “prematurely call[] for expert testimony or opinions at this 

stage of litigation.” See Ex. B at 18, 22, 24, 27, 49, 51 (Qualcomm’s responses, objecting to FTC 

Interrogatories No. 4, 5, 6, 8, 13, and 14 on this basis).3

2

 The FTC’s General Objections to each of Qualcomm’s Interrogatories explicitly invoked Fed. 

R. Civ. Pro. 26(e), stating “While the FTC responds here to the best of its present ability after a 

reasonably diligent inquiry, the FTC reserves its right to supplement, revise, or correct any of its 

responses pursuant to Fed. R. Civ. P. 26(e), preserves its right to present at trial additional 

evidence or witnesses as they may be discovered or produced, and disclaims any intent to be 

irrevocably bound by any of the answers it provides until its investigation is complete.” 

3

 A number of Qualcomm’s responses to the FTC’s Interrogatory responses are deficient. For 

some of the FTC’s interrogatories, Qualcomm has refused to provide any additional information. 

For others, Qualcomm has committed to consider whether it will provide additional information, 

but as of the date of this filing has refused to provide a date certain by which it will respond. 

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B. The FTC Has Fully Answered Interrogatory 13 

Qualcomm’s insistence that the FTC provide further details in response to Interrogatory 

13 misrepresents the FTC’s theory of the case, which the FTC has explained, among other 

places, in its Opposition to Qualcomm’s Motion to Dismiss (ECF No. 140): 

• “Under Section 2 of the Sherman Act, using monopoly power to raise rivals’ costs of 

securing customers or critical inputs qualifies as anticompetitive conduct.” ECF No. 140 

at 9. 

• “A monopolist may raise its rivals’ costs by inducing customers or suppliers not to deal 

with rivals at all, or to do so only on unfavorable terms.” Id. (citation omitted). 

• “One kind of unfavorable term that a monopolist may impose is a penalty or ‘tax’ that the 

monopolist’s competitors or its customers must pay to the monopolist when they transact 

with one another.” Id. at 9-10 (citation omitted). 

• “Whether the tax is paid by a monopolist’s rivals or by its customers makes no difference 

from either a legal or economic perspective. See MANKIW, PRINCIPLES OF 

MICROECONOMICS 125, 156 (7th ed. 2014) (‘When a tax is levied on buyers, the 

demand curve shifts downward by the size of the tax; when it is levied on sellers, the 

supply curve shifts upward by that amount. In either case, when the tax is enacted, the 

price paid by buyers rises, and the price received by sellers falls.’).” Id. at 10 n. 6. 

This is how Qualcomm’s actions “raise rivals’ costs of securing customers.” Id. at 9. 

Qualcomm suggests that its rivals’ costs of securing customers cannot be increased on the 

grounds that “[n]o chip company pays Qualcomm royalties to manufacture chips.” See supra at 

3. This is incorrect as a matter of basic economics, as explained above. Qualcomm’s rivals face 

higher costs of securing customers, equal to the amount by which Qualcomm’s royalty is 

elevated above the level that would prevail absent Qualcomm’s anticompetitive conduct. 

The FTC’s Interrogatory response explains this yet again and states which chip rivals’ 

costs were raised: 

The portion of Qualcomm’s royalty that is attributable to its market power taxes 

an OEM when it purchases a baseband processor from a Qualcomm rival. The tax 

imposed by Qualcomm represents an economic cost to all rival baseband 

processor suppliers. Ex. A at 49 (emphasis added). 

Thus, the FTC has provided a complete explanation. Qualcomm claims it needs to know 

“each chip rival whose costs were raised,” and the answer is: all rival baseband suppliers. 

Qualcomm claims it needs to know “the amounts of any such costs,” and the answer is: its rivals’ 

economic costs of securing customers were increased by the portion of Qualcomm’s royalties 

which reflect Qualcomm’s monopoly power in the markets for CDMA and premium LTE 

baseband processors. 

While no further response is required, as a compromise, the FTC offers to provide a 

further response to Interrogatory 13 within seven days of the close of fact discovery. Qualcomm 

will not be prejudiced by this schedule, as the FTC has already provided sufficient information 

for Qualcomm to conduct its discovery. 

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Dated: March 16, 2018 

Respectfully submitted, 

FEDERAL TRADE COMMISSION, 

 /s/ Jennifer Milici 

Jennifer Milici 

Daniel Matheson 

J. Alexander Ansaldo 

Joseph R. Baker 

Kenneth H. Merber 

Federal Trade Commission 

600 Pennsylvania Avenue, N.W. 

Washington, D.C. 20580 

(202) 326-2912; (202) 326-3496 (fax) 

jmilici@ftc.gov 

Attorneys for Federal Trade Commission

/s/ Geoffrey T. Holtz 

Gary A. Bornstein 

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, NY 10019 

Tel: (212) 474-1000 

Fax: (212) 474-3700 

gbornstein@cravath.com 

yeven@cravath.com 

Robert A. Van Nest

Asim M. Bhansali 

Eugene M. Paige 

KEKER VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, CA 94111-1809 

Tel: (415) 676-2289 

Fax: (415) 397-7188 

rvannest@keker.com 

abhansali@keker.com 

epaige@keker.com 

Richard S. Taffet 

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MORGAN, LEWIS & BOCKIUS LLP

101 Park Avenue 

New York, NY 10178-0060 

Tel: (212) 309-6000 

Fax: (212) 309-6001 

richard.taffet@morganlewis.com 

Willard K. Tom

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Ave. NW 

Washington, DC 20004-2541 

Tel: (202) 739-3000 

Fax: (202) 739 3001 

willard.tom@morganlewis.com 

Donn P. Pickett

Geoffrey T. Holtz

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower 

San Francisco, CA 94105-1126 

Tel: (415) 442-1000 

Fax: (415) 442-1001 

donn.pickett@morganlewis.com 

geoffrey.holtz@morganlewis.com 

Attorneys for Qualcomm Incorporated

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HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY

PLAINTIFF FEDERAL TRADE COMMISSION’S SECOND AMENDED OBJECTIONS AND RESPONSES TO DEFENDANT 

QUALCOMM INCORPORATED’S FIRST INTERROGATORIES

Case No. 5:17-CV-00220-LHK-NMC 

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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-NMC 

PLAINTIFF FEDERAL TRADE 

COMMISSION’S SECOND AMENDED 

OBJECTIONS AND RESPONSES TO 

DEFENDANT QUALCOMM’S FIRST 

SET OF INTERROGATORIES 

Pursuant to Federal Rules of Civil Procedure 26 and 33 and the Local Civil Rules of the 

United States District Court for the Northern District of California, the Case Management Orders 

entered by the Court in the above-captioned action on April 19, 2017 (ECF No. 75) and 

November 15, 2017 (ECF No. 308), and the Protective Order Governing Confidential Material 

entered May 1, 2017 (ECF No. 81) (“Protective Order”), Plaintiff Federal Trade Commission 

(“FTC”) submits these Second Amended Objections and Responses to Defendant Qualcomm 

Incorporated’s First Set of Interrogatories (“First Interrogatories”), dated November 14, 2017. 

The FTC answers Qualcomm’s First Interrogatories to the best of its knowledge at the 

present time, based upon its investigation to date. The FTC will supplement and amend these 

objections and responses in accordance with Federal Rule of Civil Procedure 26(e), including by 

asserting additional or different objections when and if it becomes necessary. 

GENERAL OBJECTIONS 

The following General Objections apply to each of Qualcomm’s Interrogatories and are 

incorporated into each subsequent Interrogatory. The assertion of the same, similar, or additional 

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PLAINTIFF FEDERAL TRADE COMMISSION’S SECOND AMENDED OBJECTIONS AND RESPONSES TO DEFENDANT 

QUALCOMM INCORPORATED’S FIRST INTERROGATORIES

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objections or the provision of partial answers in response to one part of an Interrogatory does not 

waive any of the FTC’s General Objections as to the other parts of the Interrogatory. 

1. These objections and responses are made solely for the purposes of this action. Each 

objection and response is without waiver or limitation of the FTC’s right to object to the 

use of any information in any subsequent proceeding in, or trial of, this or any other 

action. The FTC reserves the right to raise and rely upon such other and further 

objections as may become apparent during the course of responding to discovery. 

2. The FTC objects to each Interrogatory, Definition, and Instruction to the extent that it 

would impose obligations broader than those required or authorized by the Federal Rules 

of Civil Procedure or any applicable order or rule of this Court. 

3. The FTC objects to each Interrogatory to the extent that it seeks information subject to a 

privilege or protection from disclosure including the work product doctrine, the attorneyclient privilege, the deliberative process privilege, the government informant privilege, 

the law enforcement investigative privilege, the common interest doctrine, and/or any 

other applicable privilege or protection from disclosure. 

4. The FTC objects to each Interrogatory, Definition, and Instruction to the extent it seeks 

cumulative or duplicative information, including information cumulative or duplicative of 

the information found in the documents that the FTC produced or will produce to 

Qualcomm in response to Defendant Qualcomm’s Requests for Production of 

Documents. 

5. The FTC objects to the Interrogatories, Definitions, and Instructions as premature to the 

extent they require the FTC to identify “all facts and evidence” the FTC will use to 

respond to the Interrogatories before the completion of fact discovery, as the FTC’s 

response will be subject to the information it learns during discovery. While the FTC 

responds here to the best of its present ability after a reasonably diligent inquiry, the FTC 

reserves its right to supplement, revise, or correct any of its responses pursuant to Fed. R. 

Civ. 9. 26(e), preserves its right to present at trial additional evidence or witnesses as they 

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PLAINTIFF FEDERAL TRADE COMMISSION’S SECOND AMENDED OBJECTIONS AND RESPONSES TO DEFENDANT 

QUALCOMM INCORPORATED’S FIRST INTERROGATORIES

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may be discovered or produced, and disclaims any intent to be irrevocably bound by any 

of the answers it provides until its investigation is complete. 

6. The FTC objects to the Interrogatories, Definitions, and Instructions to the extent that 

they require the FTC to disclose expert materials prematurely. Fed. R. Civ. P. 26(a)(2) 

and the Case Management Order entered into on November 14, 2017, govern the time 

and manner of the FTC’s disclosure of its expert witnesses and their testimony or 

analysis, and sets the close of expert discovery on July 20, 2018. The FTC will submit its 

expert reports in accordance with the deadlines set forth in the Case Management Order 

and incorporates in its answers its expert reports, and any rebuttals, once submitted. 

7. The FTC objects to each Interrogatory, Definition, and Instruction to the extent that it 

purports to require the FTC to draw subjective or legal conclusions, or are predicated on 

subjective or legal conclusions or arguments. Subject to and without waiving any 

objections, the FTC states that any response the Interrogatories is not intended to provide, 

and shall not constitute or be construed as providing, an admission concerning any of the 

terms used in the Interrogatories. 

8. The FTC objects to Definition E, defining the term “Common Interest Agreement,” as 

overly broad, vague, ambiguous, and inaccurate to the extent, as used in the 

Interrogatories, the definition implies that an “Agreement” is necessary to avoid waiver 

of a legal privilege or protection from discovery. 

9. The FTC objects to Definition G, defining the terms “FTC,” You,” or “Your,” as overly 

broad, vague, and ambiguous to the extent, as used in the Interrogatories, the definition 

calls for information from “agents,” “representatives,” and individuals “purporting to act” 

on the FTC’s behalf. Unless otherwise stated, the FTC will interpret “FTC,” You,” or 

“Your” to include only the United States Federal Trade Commission, including its 

employees, attorneys, and consultants. 

10. The FTC objects to each Instruction to the extent that it is inconsistent with any 

agreement among the parties or any order entered by the Court, including the Joint Case 

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Management Statement entered November 8, 2017 (ECF No. 286), the Protective Order, 

the Joint Stipulation and Discovery Coordination Order entered September 22, 2017 

(ECF No. 207) (“Coordination Order”), and any Order Regarding Discovery of 

Electronically Stored Information entered by the Court. 

Neither these General Objections, nor the Specific Objections and Responses below, 

constitute an admission of the existence of any information sought, the relevance or admissibility 

of any response, or the truth or accuracy of any statement or characterization contained in any 

particular Interrogatory. The FTC further reserves all evidentiary objections and issues under the 

Federal Rules of Evidence. 

OBJECTIONS AND RESPONSES TO SPECIFIC INTERROGATORIES 

Subject to and without waiver of the foregoing General Objections, or any other 

objections or claims of privilege, the FTC presents its Specific Objections and responses to 

Qualcomm’s First Interrogatories. 

Interrogatory No. 1 

Provide a complete and detailed description of all remedies You are seeking in this 

matter, including, to the extent any disgorgement or other monetary relief is sought, the 

monetary amount of the disgorgement or other relief You are seeking Your methodology for 

calculating the amount; and, to the extent injunctive or declaratory relief is sought, each 

agreement, conduct, policy, practice or course of action that You seek the Court to prohibit, to 

declare unlawful or to compel. 

The FTC incorporates by reference its General Objections. The FTC objects to this 

interrogatory as premature because fact discovery is ongoing, expert discovery has not begun, 

and a trial on the merits is not scheduled until 2019. A “complete and detailed description of all 

remedies” the FTC seeks is subject to facts as they are developed through fact and expert 

discovery and proven at trial. 

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Interrogatory No. 5 

For each relevant product market that You allege in Your Complaint, provide the 

following information Concerning each market with respect to the entire time period each 

relevant market is alleged to have existed: 

a) all Qualcomm products that are or were included in the alleged product market, and 

the time period(s) during which such products are or were included; 

b) all non-Qualcomm products that are or were included in the alleged product market, 

and the time period(s) during which such products are or were included; 

c) the shares of all participants in the alleged product market over the entire time period 

during which each relevant market is alleged to have existed; 

d) the date on which the alleged market came into existence and a detailed description of 

why that is the date the product market came into existence; 

e) the date, if any, on which each product identified in subsections (a) and (b) ceased to 

be within the relevant product market, and a detailed description of why that is the date the 

product ceased to be in the relevant product market; and 

f) the time period during which Qualcomm allegedly had market or monopoly power in 

each relevant alleged market, including Your basis for alleging that “from at least 2012 through 

September 2015, Qualcomm’s annual worldwide share of premium LTE baseband processor 

sales exceeded 80%”. 

The FTC incorporates by reference its General Objections. The FTC specifically objects 

to this interrogatory to the extent any attempt is made to use the FTC’s response to limit its proof 

at trial. The FTC will continue to receive and review additional information as part of the 

ongoing discovery process. Moreover, the deadline for the disclosure of the FTC’s initial expert 

materials is April 20, 2017, and the interrogatory impermissibly seeks the premature and nonreciprocal disclosure of such materials. The FTC will respond based on the information 

reasonably and presently known to it, and reserves the right to supplement or amend its 

responses as its collection and review of the evidence continues, and based on expert discovery. 

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Subject to and without waiving the foregoing general and specific objections, the FTC 

responds as follows: 

(a) 

CDMA 

The FTC has described the characteristics of baseband processors included in the alleged 

CDMA market in its First Amended Response to Interrogatory 4(c). As of the date of this 

response, the FTC’s assessment of the Qualcomm baseband processors included in the alleged 

CDMA market are: 

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Premium LTE 

The below table provides the FTC’s assessment, as of the date of this response, of the 

Qualcomm baseband processors that offered premium LTE capability, by year. 

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(b) 

CDMA 

The FTC has described the characteristics of baseband processors included in the alleged 

CDMA market in its First Amended Response to Interrogatory 4(c). As of the date of this 

response, the FTC’s assessment of the non-Qualcomm baseband processors included in the 

alleged CDMA market are: 

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Premium LTE 

The below table provides the FTC’s current assessment of the non-Qualcomm baseband 

processors that offered premium LTE capability, by year. 

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(c) 

As of the date of this response, the FTC has not calculated the share of each participant 

within each relevant product market over the entire time period during which each relevant 

market existed. The FTC will submit its expert reports in accordance with the deadlines set forth 

in the Case Management Order and hereby incorporates its expert reports, and any rebuttals, 

once submitted. 

Based on the best information available to the FTC, market shares of participants in the 

CDMA baseband processor market have varied only slightly over time. Qualcomm’s market 

share has exceeded , globally, since at least 2006. In 2015, Qualcomm’s market share in the 

CDMA baseband processor market was in the U.S. and Canada. 

Documents containing information relevant to the market shares of participants in the CDMA 

baseband processor market include the following, each of which is available to Qualcomm: 

Documents containing information relevant to the market shares of participants in the 

premium LTE baseband processor market include the following, each of which is available to 

Qualcomm: 

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(d) 

The CDMA baseband processor market has existed at least since carriers adopted CDMA 

technology, and OEMs began designing and selling handsets that were compatible with that 

technology to customers. 

The premium LTE baseband processor market has existed at least since carriers adopted 

LTE technology, and OEMs began designing and selling premium handsets that were compatible 

with that technology to customers. Initially, all LTE baseband processors were premium 

products, because all included the most advanced LTE technology then available, and competed 

for design wins in premium handsets. At least as early as 2011, however, the LTE market began 

to segment into a premium-tier and a second tier. 

 

From that time period, a market for premium LTE 

baseband processors came into existence that differed from the market for non-premium LTE 

baseband processors. 

(e) 

With respect to the CDMA market, the products identified in response to parts (a) and (b) 

of this Interrogatory ceased to be in the relevant market when they were discontinued. As of the 

date of this response, the FTC does not know the date on which each discontinued product was 

discontinued. 

With respect to the premium LTE market, the products identified in response to parts (a) 

and (b) of this Interrogatory ceased to be in the relevant market when subsequent technological 

advances had reached the point that they were no longer considered for inclusion within flagship 

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or premium tier handsets. As of the date of this response, the FTC has identified the following 

subsequent technological advances that impacted whether any of the products identified above 

was no longer considered for inclusion within flagship or premium tier handsets: increases in 

uplink/downlink speed, reduced power consumption, and reduced size. As of the date of this 

response, the FTC does not know the date on which any of the products identified above was no 

longer considered for inclusion within flagship or premium tier handsets. 

 (f) 

The FTC alleges that Qualcomm has had monopoly power in the CDMA baseband 

processor market since at least 2006. 

The FTC alleges that Qualcomm has had monopoly power in the market for premium 

LTE baseband processors in commercial use since at least 2012. 

Interrogatory No. 6 

Identify each instance in which you contend that a current, past or potential Qualcomm 

licensee (i) did not challenge the terms of an existing license agreement with Qualcomm; (ii) did 

not challenge prospective license terms proposed by Qualcomm; or (iii) agreed to pay a higher 

royalty than the licensee otherwise would have agreed to pay (including any royalty You contend 

is not or was not fair, reasonable and non-discriminatory), in each case as a result of a threat by 

Qualcomm not to supply baseband processors or as a result of any other action taken by 

Qualcomm regarding the supply of baseband processors, and provide all facts Concerning or 

supporting Your contention, including whether the licensee was a current licensee, past licensee 

or potential licensee and the particulars of any threat or other action by Qualcomm and how 

such action brought about the result You allege. 

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conditioned on Apple’s exclusive use of Qualcomm baseband processors, the various basebandprocessor rebates provided to Apple under that agreement were conditioned upon 

As explained above in response to Interrogatory 7, 

Interrogatory No. 13 

Identify any specific instances in which a rival baseband processor supplier incurred 

increased costs caused by any conduct of Qualcomm that You contend was anticompetitive, 

identify the amount of any such increased costs, and provide all facts Concerning or supporting 

Your response. 

The FTC incorporates by reference its General Objections. The FTC specifically objects 

to this interrogatory to the extent any attempt is made to use the FTC’s response to limit its proof 

at trial. The FTC will continue to receive and review additional information as part of the 

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ongoing discovery process. Accordingly, the FTC reserves the right to supplement and amend its 

response following the completion of discovery. 

Subject to and without waiving the foregoing general and specific objections, the FTC 

responds as follows: 

Qualcomm conditions sales of its baseband processors to OEMs on the acceptance by the 

OEM of a patent license that requires the OEM to pay Qualcomm royalties for every cellular 

handset sold by the OEM. This “no license-no chips” policy has been in place since at least 

2006. The no license-no chips policy is embodied in 

 The no license-no chips policy has allowed 

Qualcomm to obtain elevated royalty payments from OEMs, a portion of which reflect 

Qualcomm’s monopoly power in the markets for CDMA and premium LTE baseband 

processors. The portion of Qualcomm’s royalty that is attributable to its market power taxes an 

OEM when it purchases a baseband processor from a Qualcomm rival. The tax imposed by 

Qualcomm represents an economic cost to all rival baseband processor suppliers. 

Qualcomm’s tax has affected every existing or potential baseband processor supplier that 

has sold or attempted to sell baseband processors to any OEM licensed by Qualcomm. The 

economic costs of Qualcomm’s tax on these rivals has been persistent since at least 2006. 

Dated: February 7, 2018 Respectfully submitted, 

 /s/ Kenneth H. Merber 

 Kenneth H. Merber 

 FEDERAL TRADE COMMISSION 

 600 Pennsylvania Avenue, NW 

 Washington, DC 20580 

 (202) 326-3551 

 kmerber@ftc.gov 

Counsel for Plaintiff Federal Trade 

Commission 

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Verification of Interrogatory Responses 

I, Kenneth Merber, am an attorney in the Bureau of Competition at the Federal Trade 

Commission. I believe, based on a reasonable inquiry, that the foregoing responses are true and 

correct to the best of my knowledge. 

I verify under penalty of perjury that the foregoing is true and correct. 

Dated: February 7, 2018 /s/ Kenneth H. Merber 

 Kenneth H. Merber 

 FEDERAL TRADE COMMISSION 

 600 Pennsylvania Avenue, NW 

 Washington, DC 20580 

 (202) 326-3551 

 kmerber@ftc.gov 

Counsel for Plaintiff Federal Trade 

Commission

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QUALCOMM’S OBJECTIONS AND RESPONSES 

TO FEDERAL TRADE COMMISSION’S FIRST SET 

OF INTERROGATORIES

CASE NO. 17-CV-00220-LHK 

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CRAVATH, SWAINE & MOORE 

LLP 

Gary A. Bornstein (pro hac vice) Yonatan Even (pro hac vice) 825 Eighth Avenue 

New York, New York 10019-7475 

Telephone:(212) 474-1000 

Facsimile: (212) 474-3700 

KEKER, VAN NEST & PETERS 

LLP 

Robert A. Van Nest (SBN 84065) 

Asim M. Bhansali (SBN 194925) 

Eugene M. Paige (SBN 202849) 

633 Battery Street 

San Francisco, Ca 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

Attorneys for Defendant, 

QUALCOMM INCORPORATED 

MORGAN, LEWIS & BOCKIUS 

LLP 

Richard S. Taffet (pro hac vice) 101 Park Avenue 

New York, New York 10178-0060 

Telephone: (212) 309-6000 

Facsimile: (212) 309-6001 

MORGAN, LEWIS & BOCKIUS 

LLP 

Willard K. Tom (pro hac vice) 1111 Pennsylvania Avenue NW 

Washington, DC 20004-2541 

Telephone:(202) 739-3000 

Facsimile: (202) 739 3001 

MORGAN, LEWIS & BOCKIUS 

LLP 

Donn P. Pickett (SBN 72257) 

Geoffrey T. Holtz (SBN 191370) 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone:(415) 442-1000 

Facsimile: (415) 442-1001 

Attorneys for Defendant, 

QUALCOMM INCORPORATED 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

 FEDERAL TRADE COMMISSION 

 

 Plaintiff, 

 

vs, 

 QUALCOMM INCORPORATED, 

 a Delaware corporation 

 

 Defendant. 

No. 5:17-cv-00220-LHK 

QUALCOMM 

INCORPORATED’S 

OBJECTIONS AND 

RESPONSES TO FEDERAL 

TRADE COMMISSION’S 

FIRST SET OF 

INTERROGATORIES 

 

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Pursuant to Federal Rules of Civil Procedure 26 and 34 and the Civil 

Local Rules of the United States District Court for the Northern District of 

California, Defendant Qualcomm Incorporated (“Qualcomm”) states the following 

responses and objections (“Responses”) to Plaintiff Federal Trade Commission’s 

(“FTC”) First Set Of Interrogatories to Qualcomm (the “Requests” or 

“Interrogatories”), dated January 26, 2018, in the above-captioned action (the 

“Action”). 

GENERAL OBJECTIONS 

The General Objections set forth below apply to the Interrogatories 

generally and to the Definitions, Instructions, and the individual Interrogatories set 

forth therein. Unless otherwise stated, the General Objections shall have the same 

force and effect as if set forth in full in response to each Definition, Instruction, 

and Interrogatory. Any undertaking to search for, or provide information in 

response to, any Interrogatory is made subject to the General Objections. 

1. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they seek to 

impose burdens or obligations on Qualcomm that are broader than, inconsistent 

with, or not authorized under the Federal Rules of Civil Procedure, the Civil Local 

Rules of the United States District Court for the Northern District of California, 

other applicable rules or laws, or any order entered by the Court in, or applicable 

to, this Action (the “Applicable Rules”). Subject to and without waiving any 

Objections, in responding to the Interrogatories, Qualcomm will construe the 

Interrogatories in accordance with the Applicable Rules. 

2. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they request 

disclosure of information that comes within the scope of the attorney-client 

privilege, the work-product doctrine, the common interest or joint defense 

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privilege or any other applicable privilege or immunity, or that otherwise are 

exempted from disclosure. Qualcomm hereby claims such privileges and 

protections to the extent implicated by the Interrogatories and excludes privileged 

or protected information from its Responses to the Interrogatories. Any disclosure 

of any such privileged or protected information in response to the Interrogatories 

is inadvertent and not intended to waive those privileges and protections. 

3. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they purport to 

require Qualcomm to conduct anything beyond a reasonable and diligent search 

where responsive information reasonably would be expected to be found 

(including electronic sources), and to the extent that the Interrogatories purport to 

require Qualcomm to exceed its obligations under the Applicable Rules. 

4. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they are vague, 

ambiguous, overly broad, unduly burdensome, lacking in particularity, 

unreasonable, or seek the discovery of information that is neither relevant to the 

claims or defenses of any party to this Action nor reasonably calculated to lead to 

the discovery of admissible evidence, as well as to the extent that they are unduly 

burdensome or disproportionate to the needs of the case because they impose a 

significant expense and inconvenience on Qualcomm. Qualcomm’s Responses 

are based upon (i) a reasonable search and investigation of facilities and files that 

could reasonably be expected to contain responsive information; and (ii) inquiries 

of Qualcomm’s employees and/or representatives who could reasonably be 

expected to possess responsive information. 

5. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they purport to 

require Qualcomm to draw subjective or legal conclusions, or are predicated on 

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subjective or legal conclusions or arguments, or call for expert testimony. Subject 

to and without waiving any objections, Qualcomm states that any response, 

production of documents or provision of information in response to the 

Interrogatories is not intended to provide, and shall not constitute or be construed 

as providing, an admission concerning any of the terms used in the Interrogatories. 

6. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that the 

Interrogatories, Definitions or Instructions contain inaccurate, incomplete or 

misleading descriptions of the facts, persons, relationships and/or events 

underlying the Action. Qualcomm further object to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they assume the 

existence of facts that do not exist or the occurrence of events that did not take 

place. Any response, production of documents or provision of information in 

response to the Interrogatories is not intended to provide, and shall not constitute 

or be construed as providing, an admission that any factual predicates stated in the 

Interrogatories are accurate. 

7. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that the 

Interrogatories call for the disclosure of Qualcomm’s, its customers’, its 

licensees’, its counterparties’, or other third parties’ confidential, proprietary, trade 

secret, and/or commercially sensitive information. The provision of such 

information is made pursuant to the Protective Order Governing Confidential 

Information, dated May 1, 2017 (Dkt. 81). Where necessary, Qualcomm will 

endeavor to work with third parties to obtain their consent before identifying or 

producing such information and/or documents. 

8. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they seek 

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information that is cumulative, duplicative, already in the FTC’s possession, or 

equally obtainable from public sources or from some other source or through some 

other means of discovery that is more convenient, less burdensome, or less 

expensive. 

9. Qualcomm objects generally to the Interrogatories, including 

the Definitions and Instructions set forth therein, to the extent that they seek 

information that is not in Qualcomm’s possession, custody, or control, or is 

equally available and/or in the possession, custody, or control of the FTC or any 

third person or entity. 

10. Qualcomm objects generally to the Interrogatories to the extent

they seek to compel Qualcomm to generate or create information and/or 

documents that do not already exist. 

11. Qualcomm objects generally to the Interrogatories to the extent

they are compound and comprise discrete subparts resulting in separate 

interrogatories. 

12. Qualcomm objects generally to Definition Letter A, defining 

the terms “You”, “Your”, “Company” and “Qualcomm”, and to Instruction No. 1, 

as vague, overbroad and, as used in the Requests, calling for materials not relevant 

to claims or defenses of the parties or not in the possession, custody or control of 

Qualcomm, to the extent that they encompass Qualcomm’s “affiliates”, 

“partnerships and joint ventures” and “consultants”, which are not parties to and 

are irrelevant to this Action, and their “directors, officers, trustees, employees, 

attorneys, agents, consultants, and representatives”. Qualcomm further objects to 

the extent that it requires Qualcomm to seek information from thousands of 

people. Unless otherwise stated, Qualcomm will interpret “You”, “Your”, 

“Company” and “Qualcomm” to include only Qualcomm Incorporated and its 

“predecessors, successors, divisions and subsidiaries”, including Qualcomm 

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Technologies Inc. (“QTI”), Qualcomm CDMA Technologies (“QCT”), 

Qualcomm CDMA Technologies Asia-Pacific Pte. Ltd. (“QCTAP”) and 

Qualcomm Technology Licensing (“QTL”). 

13. Qualcomm objects generally to Definition Letter D, defining 

the term “Agreement”, as vague, overbroad and, as used in the Requests, calling 

for materials not relevant to claims or defenses of the parties, to the extent that it 

includes an “implied contract, arrangement, understanding or plan . . . between 

two or more persons”. 

14. Qualcomm objects generally to Definition Letter K, defining 

the term “Patent”, as vague, overbroad and, as used in the Requests, calling for 

materials not relevant to claims or defenses of either party to this Action to the 

extent it encompasses provisional, withdrawn, rejected, or abandoned applications. 

Qualcomm will interpret “Patent” to mean any patent issued in the United States 

or pending patent application filed in the United States. 

15. Qualcomm objects generally to Definition Letter M, defining 

the term “Premium LTE Baseband Processor” as vague, overbroad, and, as used in 

the Requests, calling for materials not relevant to claims or defenses of the parties 

to the extent that it encompasses “any Qualcomm ‘MDM’ and ‘thin modem’ 

Relevant Products of an equivalent or superior ‘modem class’” and “any other 

LTE Relevant Products, whether or not manufactured by Qualcomm, with 

comparable features (including LTE category and carrier aggregation 

configuration) such that they are reasonably substitutable for any of the 

foregoing”. Unless otherwise stated, Qualcomm will limit its responses to 

Relevant Products that support compliance with the LTE standard. 

16. Qualcomm objects generally to Definition Letter P, defining 

the terms “Relating to”, “Referring to”, “regarding”, “concerning” or “about”, as 

vague, overbroad and, as used in the Requests, calling for materials not relevant to 

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claim or defenses of the parties. Qualcomm further objects generally to Definition 

Letter P to the extent that it purports to impose obligations greater than those 

applicable under the Applicable Rules and that are unduly burdensome and not 

proportional to the needs of the case. 

17. Qualcomm objects generally to Definition Letter Q, defining 

the term “Relevant Product”, as vague, overbroad and, as used in the Requests, 

calling for materials not relevant to claims or defenses of the parties. Qualcomm 

will interpret “Relevant Product” to mean any component that, when embedded 

within or connected to Cellular Equipment, is capable of performing modulation 

and/or de-modulation functions in connection with any portion of any wireless 

cellular communications transmission. 

18. Qualcomm objects generally to Definition Letter R, defining 

the term “Relevant Standard”, as vague, overbroad and, as used in the Requests, 

calling for materials not relevant to claims or defenses of the parties, including to 

the extent that it includes terms (such as OFDMA) which are not technological 

standards. Unless otherwise stated, Qualcomm will limit its response to cellular 

standards developed or published by one of the relevant SSOs listed in 

Qualcomm’s Objection to Definition Letter S. 

19. Qualcomm objects generally to Definition Letter S, defining 

the term “SSO”, as vague, overbroad and, as used in the Requests, calling for 

materials not relevant to claims or defenses of the parties, including to the extent it 

encompasses organizations, groups, joint ventures, or consortiums other than the 

following SSOs: the European Telecommunications Standards Institute (“ETSI”), 

The Third Generation Partnership Project (“3GPP”), The Third Generation 

Partnership Project 2 (“3GPP2”), the Alliance for Telecommunications Industry 

Solutions (“ATIS”) and the Telecommunications Industry Association (“TIA”). 

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20. Qualcomm generally objects to the Interrogatories on the 

grounds that they are not limited in time and therefore are unduly burdensome, not 

proportional to the needs of the case and call for information that is not relevant to 

the claims or defenses of any party. To the extent the Interrogatories ask for 

information from time periods outside the scope of discovery in this case, the 

Interrogatories are unduly burdensome and not proportional to the needs of the 

case. 

21. Qualcomm’s Responses are based on its current knowledge. 

Further investigation may reveal additional facts or information that could lead to 

additions to, changes in, and/or variations from the Responses herein. Without in 

any way obligating itself to do so, Qualcomm expressly reserves the right to 

supplement, add to, amend, correct, clarify, revise or modify the Responses as 

further information becomes available. Qualcomm also reserves the right to use 

or rely on, at any time, subsequently discovered information or information 

omitted from these Responses as a result of mistake, error, oversight or 

inadvertence. The responses to the Interrogatories provided herein are based on a 

reasonable search for responsive information. 

22. Qualcomm expressly reserves the right to respond to any or all 

of the Interrogatories by specifying documents wherein the responsive information 

may be ascertained pursuant to Rule 33(d) of the Federal Rules of Civil Procedure. 

23. Qualcomm is providing these Responses without waiver of or 

prejudice to (i) its right at any later time to raise objections as to the competence, 

relevance, materiality, privilege, work product, character and admissibility as 

evidence, for any purpose, of (a) the Interrogatories or any part thereof, or 

(b) statements made in this Response to the Interrogatories or any part thereof; or 

(ii) the right to object to the use of any of the information disclosed hereunder in 

any subsequent proceedings or the trial of this or any other actions; or (iii) the 

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and ambiguous, calling for information not relevant to the claims or defenses of 

any party and disproportionate to the needs of the case. Qualcomm further objects 

to subparts (a) through (k) on the grounds that they are vague, ambiguous, overly 

broad, unduly burdensome and impose burdens on Qualcomm that are 

disproportionate to the needs of the case. Qualcomm further objects to 

Interrogatory No. 3 on the ground that it seeks to elicit information subject to and 

protected by the attorney-client privilege, the attorney work product doctrine 

and/or any other applicable privilege or immunity, including an identification of 

and information concerning the “highest-rated” patents. See Supplemental 

Discovery Order Granting Qualcomm’s Asserted Privilege, dated November 13, 

2017 (Dkt. 290). Qualcomm will not respond to Interrogatory Number 3 on these 

bases. 

INTERROGATORY NO. 4:

State whether You contend that “no company can match the breadth, 

quality, or value of Qualcomm’s cellular patent portfolio” and provide all 

measures, including quantitative, that support such a contention. 

Response to Interrogatory No. 4

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory No. 4 on the grounds that it prematurely calls for expert 

testimony or opinions at this stage of litigation and because the request for “all 

measures, including quantitative” is vague and ambiguous. 

Subject to and without waiving the foregoing General Objections and 

Specific Objections, Qualcomm responds as follows: 

As a result of Qualcomm’s longstanding, leading, and continuing role in 

developing the fundamental technologies of cellular communications, Qualcomm 

has the largest and most important portfolio of patents relating to cellular 

communications. In its fiscal year 2016, Qualcomm invested in 

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R&D, which represents approximately of its revenue for that year. In fiscal 

year 2017, Qualcomm invested in R&D, which represents 

approximately of its revenue for that year. Since its founding, Qualcomm 

has invested over in R&D. As of February 2018, Qualcomm had over 

86,000 granted patents worldwide, and over 53,000 pending patent applications 

worldwide. As a result of its R&D investments and efforts, Qualcomm’s patent 

portfolio continues to grow at a rapid pace. Qualcomm’s overall patent portfolio 

has a compound annual growth rate of for the last 20 years. In 1990, when 

Qualcomm signed its first license agreements, it had nine patents. In 1999, the 

year that the WCDMA standard was adopted, Qualcomm received 510 patents. In 

2015 alone, Qualcomm obtained nearly 9,000 new patents. In addition, 

Qualcomm's fundamental contributions created enormous value for all participants 

in the cellular ecosystem, including, but not limited to, carriers, handset makers, 

app developers and end users. 

To date, Qualcomm has entered into license agreements with over three 

hundred companies. The terms of these license agreements were established by 

market factors and reflect the value that each licensee and the industry has placed 

on Qualcomm’s patent portfolio as established through arms-length negotiations 

with sophisticated counterparties.1

 

That the terms of Qualcomm’s license agreements reflect the value of its 

patent portfolio is confirmed by the fact that Qualcomm licensees who do not 

purchase baseband processor products from Qualcomm, or who entered into 

license agreements even before Qualcomm supplied baseband processor products, 

have agreed on comparable terms as those who do purchase baseband processors 

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 Qualcomm has entered into over Chinese Patent License Agreements, 

the terms of which (including the royalty rate) have been recognized by the NDRC 

as satisfying the NDRC Order dated February 9, 2015. 

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from Qualcomm. Qualcomm entered into at least license agreements 

 

Qualcomm also has license agreements with over companies 

 

 

Qualcomm’s typical patent license terms have been known in the industry, 

and by specific SSO participants, since before Qualcomm’s technology has been 

included in the relevant standards. Qualcomm has never increased its royalty rates 

for a particular technology after that technology was incorporated into a cellular 

standard. 

Pursuant to Federal Rule of Civil Procedure 33(d), Qualcomm also 

identifies the following documents that include facts responsive to this 

Interrogatory: Qualcomm's submissions to the FTC during its pre-Complaint 

investigation; 

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INTERROGATORY NO. 5: 

Identify every Premium LTE Baseband Processor that Qualcomm has

supplied and every Premium LTE Baseband Processor that “other manufacturers 

have offered” (as that phrase is used in Qualcomm’s Answer ¶ 45) and for each 

such Premium LTE Baseband Processor, provide the following information: 

(a) the manufacturer; (b) all customers or prospective customers the Premium LTE 

Baseband Processor was offered to; and (c) the handset, or other end-use, the 

Premium LTE Baseband Processor was offered for use in.

Response to Interrogatory No. 5

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory No. 5 on the grounds that it prematurely calls for expert 

testimony or opinions at this stage of litigation. Qualcomm further objects to the 

term “Premium LTE Baseband Processor” (including as defined) as vague and 

ambiguous. Qualcomm further objects on the grounds that its Answer (including 

at Paragraph 45) does not state that “other manufacturers have offered” Premium 

LTE Baseband Processors, but instead states that other manufacturers have offered 

baseband processors that support compliance with the LTE standard, and that to 

date, FTC has refused to define the contours of the alleged “premium LTE 

baseband processor” market. Qualcomm further objects that “premium” is an 

imprecise descriptive term with uncertain meaning as used in the cellular industry, 

including at times internally by Qualcomm, but that the term does not define a 

fixed category of baseband processor chips with a particular set of characteristics. 

Qualcomm further objects to the extent that Interrogatory No. 5 requests 

information concerning manufacturers other than Qualcomm and concerning 

which customers or prospective customers such other manufacturers have offered 

their products to, which information is not in Qualcomm’s possession and which 

the FTC has had at least the same ability as Qualcomm to obtain from such 

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manufacturers through its pre-Complaint investigation and discovery in this 

Action. 

Subject to and without waiving the foregoing General Objections and 

Specific Objections, Qualcomm responds as follows: 

In accordance with Rule 33(d) of the Federal Rules of Civil Procedure, 

Qualcomm states that it has produced documents to the FTC from which the 

requested information about baseband processors, to the extent that it is in 

Qualcomm’s possession, can be derived. The burden of deriving such information 

from those documents would be substantially the same for the FTC as it would be 

for Qualcomm. Specifically, Qualcomm has produced 

 

INTERROGATORY NO. 6:

Identify every CDMA Baseband Processor that Qualcomm has supplied and 

every CDMA Baseband Processor any other manufacturer has offered, including 

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any CDMA Baseband Processors that “Via has offered” (as that phrase is used in 

Qualcomm’s Answer ¶ 34) or that “MediaTek offers” (as that phrase is used in 

Qualcomm’s Answer ¶ 35), and for each such CDMA Baseband Processor, 

provide the following information: (a) the manufacturer; (b) all customers or 

prospective customers the CDMA Baseband Processor was offered to; and (c) the 

handset, or other end-use, the CDMA Baseband Processor was offered for use in. 

Response to Interrogatory No. 6

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory No. 6 on the grounds that it prematurely calls for expert 

testimony or opinions at this stage of litigation. Qualcomm further objects to the 

extent that Interrogatory No. 6 requests information concerning manufacturers 

other than Qualcomm and concerning which customers or prospective customers 

such other manufacturers have offered their products to, which information is not 

in Qualcomm’s possession and which the FTC has had at least the same ability as 

Qualcomm to obtain from such manufacturers through its pre-Complaint 

investigation and discovery in this Action. 

Subject to and without waiving the foregoing General Objections and 

Specific Objections, Qualcomm responds as follows: 

In accordance with Rule 33(d) of the Federal Rules of Civil Procedure, 

Qualcomm states that it has produced documents to the FTC from which the 

requested information about baseband processors, to the extent that it is in 

Qualcomm’s possession, can be derived. The burden of deriving such information 

from those documents would be substantially the same for the FTC as it would be 

for Qualcomm. Specifically, Qualcomm has produced 

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INTERROGATORY NO. 7:

Identify every Agreement between Qualcomm and a Qualcomm Licensee or 

other manufacturer of Cellular Equipment involving 

Response to Interrogatory No. 7

Qualcomm incorporates its General Objections herein. Qualcomm 

also objects to Interrogatory No. 7 as vague, ambiguous, overly broad, and/or 

unduly burdensome, in particular with regard to its use of the phrase 

 

Qualcomm objects to this interrogatory to the extent that it seeks information that 

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is protected by the attorney-client privilege, work product doctrine, and/or other 

applicable privilege or protection. 

Subject to, and without waiving the General Objections and Specific 

Objections, Qualcomm responds as follows: 

In accordance with Rule 33(d) of the Federal Rules of Civil 

Procedure, Qualcomm states that it has produced or will produce documents to the 

FTC from which the requested information can be derived. The burden of 

deriving such information from those documents would be substantially the same 

for the FTC as it would be for Qualcomm. 

 

INTERROGATORY NO. 8:

For each Relevant Standard to which Qualcomm has contributed Standard 

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Essential Patents, state and quantify, including in numerical terms, together with 

all factual and legal bases for Your contentions: (a) what Qualcomm contends is 

the highest fair and reasonable total aggregate royalty for all Standard Essential 

Patents (including those contributed by Qualcomm and those contributed by 

others) for a handset that complies with the standard; (b) what Qualcomm 

contends is the proportional value of the Standard Essential Patents contributed by 

Qualcomm to the standard in relation to value of all Standard Essential Patents 

that are essential to the standard; and (c) the metrics, assessment methods, or other 

measures of value used by Qualcomm to reach such value. 

Response to Interrogatory No. 8

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory No. 8 on the ground that it is vague and ambiguous, 

including its use of the terms “highest fair and reasonable total aggregate royalty” 

and “proportional value”. Qualcomm further objects to Interrogatory No. 8 on the 

ground that it prematurely calls for legal conclusions. Qualcomm further objects 

to Interrogatory No. 8 on the grounds that it prematurely calls for expert testimony 

or opinions at this stage of litigation. 

Qualcomm further objects to Interrogatory No. 8 on the grounds that it is 

overly broad and unduly burdensome to the extent it requests Qualcomm to 

analyze every Standard Essential Patent ever issued in any country to any entity 

for multiple standards. Qualcomm further objects to Interrogatory No. 8 on the 

ground that Qualcomm does not contend that there is a “highest” or maximum 

total aggregate fair and reasonable royalty for all Standard Essential Patents 

(including those contributed by Qualcomm and those contributed by others) for a 

handset that complies with a standard, or that such “highest fair and reasonable 

total aggregate royalty” must be divided proportionally among Standard Essential 

Patents (or their holders). To the contrary, major SSOs (including ETSI) have 

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rejected both (i) a proposed cap on cumulative royalties and (ii) a rule requiring 

proportional allocation (for example based on the number of declared SEPs held 

by each patent holder). See, e.g., ETSI GA/IPR01(06)08 (“Proposal for IPR 

Reform”); ETSI GA/IPR02(06)02 (“Consolidated Discussion in E1—FRAND”); 

ETSI/B59(06)28 (“IPR Review Ad Hoc Group Report”); ETSI GA/IPRR06(06)24 

rev. 3 (“Secretary’s Notes from IPRR#6”). Such requirements are not included in 

the IPR Policy of ETSI or the policies of the other SSOs listed in Qualcomm’s 

Objection to Definition Letter S. 

Qualcomm further objects to Interrogatory Number 8 because Qualcomm 

does not contend that any “fair and reasonable total aggregate royalty” would be 

subject to a numerically “proportional” split among SEP holders, as such 

proposition fails to account for cross-grants, overlapping license arrangements and 

other unique circumstances that negate simple aggregation of royalty rates, as well 

as the many non-pecuniary terms that affect the rate provided by any agreement; 

all of these factors may be relevant to the assessment of whether any particular 

license agreement was entered into on fair and reasonable terms, even if the 

relevant terms do not reflect a numerical “proportional” split among SEP holders. 

The value of SEPs, like any other asset, is determined by market forces 

through bilateral arms’ length negotiation, not the arbitrary assessment of a 

conceptual “total aggregate royalty”. Just like there is no theoretical “highest” 

aggregate price for all tangible components of a mobile handset, there neither is 

nor should be a theoretical “highest” price for the intellectual property a mobile 

handset implements. 

To the extent that the FTC contends that there is a “highest fair and 

reasonable total aggregate royalty” that should be “proportional[ly]” allocated 

among SEP holders in any way, Qualcomm reserves the right to rebut such 

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Qualcomm has produced 

 

 

INTERROGATORY NO. 13:

State whether You contend that “[i]f Qualcomm tried to charge supracompetitive prices for its CDMA modem chips, its customers could ‘discipline’ 

Qualcomm by shifting their demand for non-CDMA modem chips to other chip 

suppliers,” and provide all factual and legal bases for Your contention, including 

every example of such an occurrence, or the possibility of such an occurrence, 

impacting the terms on which Qualcomm offered to sell CDMA Baseband 

Processors. 

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Response to Interrogatory No. 13

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory No. 13 on the grounds that it prematurely calls for expert 

testimony or opinions at this stage of litigation. Qualcomm further objects on the 

ground that the request for “every example of such an occurrence, or the 

possibility of such an occurrence” is vague and ambiguous and imposes burdens 

on Qualcomm that are disproportionate to the needs of the case. 

Subject to and without waiving the foregoing General Objections and 

Specific Objections, Qualcomm responds as follows: 

Qualcomm's CDMA modem customers can use their significant purchases 

of non-CDMA modem chips to discipline prices for CDMA modem chips. The 

vast majority of phones sold in the world are not CDMA-enabled and do not 

contain CDMA Baseband Processors. Even in the regions of the world where 

sales of phones with CDMA modem chips occur, original equipment

manufacturers still sell significant numbers of phones that do not contain CDMA 

modem chips. Nearly all of Qualcomm’s top customers of CDMA modem chips 

purchase a substantially greater number of non-CDMA modem chips from 

Qualcomm. As a result, customers for CDMA chip modems could defeat any 

attempt by Qualcomm to impose a significant price increase on CDMA-enabled 

chips by threatening to move their non-CDMA modem chip purchases to other 

manufacturers. 

For example, suppose Qualcomm sought to impose a significant price 

increase on CDMA modem chips. Even if it were the case that OEMs could not 

shift any of their CDMA modem chip purchases to other chipmakers, Qualcomm’s 

potential gain would be equal to the revenues generated by the price increase. On 

the other hand, Qualcomm’s potential loss if a chipmaker moved its non-CDMA 

chip purchases to another chipmaker or engaged in self-supply would be 

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Qualcomm’s entire profit margin on the sale of chips that were moved to another 

chipmaker or self-supplied. Because Qualcomm’s potential loss could be greater 

than its potential gain in such a situation, OEMs could discipline the price of 

CDMA chip modems by threatening to move non-CDMA chip modem purchases 

to other chipmakers or by self-supplying. Further, OEMs that do not purchase 

non-CDMA modem chips from Qualcomm could offer to move such purchases to 

Qualcomm as leverage to obtain lower prices for Qualcomm CDMA modem 

chips. 

In accordance with Rule 33(d) of the Federal Rules of Civil 

Procedure, Qualcomm has produced documents to the FTC from which the 

requested information may be derived. The burden of deriving such information 

from those documents would be substantially the same for the FTC as it would be 

for Qualcomm. Specifically, Qualcomm has produced 

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INTERROGATORY NO. 14:

Identify each Qualcomm License that You contend provides less 

consideration to Qualcomm than the fair value of the Licensed patent rights, and 

for each such License, state: (a) whether You contend that Qualcomm could have 

successfully demanded a higher royalty from the Licensee at the time of 

negotiation, and (b) whether You contend the Licensee would agree to a higher 

royalty today than it did at the time of negotiation, and provide all factual bases 

for Your contentions. 

Response to Interrogatory No. 14

Qualcomm incorporates its General Objections herein. Qualcomm further 

objects to Interrogatory Number 14 on the ground that it requests information that 

is not relevant to the claims or defenses of the parties, including because it is 

unclear why and how whether Qualcomm contends that any Qualcomm License 

“provides less consideration to Qualcomm than the fair value of the Licensed 

patent rights” is relevant to the claims or defenses of a party. Qualcomm further 

objects on the ground that Interrogatory Number 14 is overly broad and imposes 

burdens on Qualcomm that are disproportionate to the needs of the case, including 

because it requests Qualcomm to evaluate market conditions, Qualcomm’s patent 

portfolio and the negotiating conditions that existed at the times each of over 300 

licenses were entered into. Qualcomm further objects on the ground that the 

requests for whether Qualcomm could have “demanded a higher royalty” or 

whether each Licensee “would agree to a higher royalty today” are vague and 

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ambiguous, including on the basis that the consideration Qualcomm received from 

each license comprises more than just a royalty. Qualcomm further objects to 

Interrogatory Number 14 on the grounds that it poses an impermissible 

hypothetical question and that it seeks expert testimony or opinions, which is 

premature at this stage of the litigation. Qualcomm will not respond to 

Interrogatory Number 14 on these bases. 

Dated: February 28, 2018 By: _s/ Gary A. Bornstein___________

Gary A. Bornstein 

Yonatan Even 

CRAVATH, SWAINE & MOORE LLP 

Worldwide Plaza 

825 Eighth Avenue 

New York, New York 10019-7475 

Telephone: (212) 474-1000 

 

Robert A. Van Nest 

Asim M. Bhansali 

Eugene M. Paige 

KEKER, VAN NEST & PETERS LLP 

633 Battery Street 

San Francisco, Ca 94111-1809 

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188 

rvannest@kvn.com 

abhansali@kvn.com 

epaige@kvn.com 

 

Richard S. Taffet 

MORGAN, LEWIS & BOCKIUS LLP 

101 Park Avenue 

New York, NY 10178-0060 

Telephone: (212) 309-6000 

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Willard K. Tom 

MORGAN, LEWIS & BOCKIUS LLP 

1111 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

Telephone: (202) 739-3001 

 Donn P. Pickett 

Geoffrey T. Holtz 

MORGAN, LEWIS & BOCKIUS LLP 

One Market, Spear Street Tower 

San Francisco, CA 94105-1596 

Telephone: (415) 442-1000 

Attorneys for Defendant, 

QUALCOMM INCORPORATED 

 

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