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

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

Ryan W. Koppelman

CA Bar No. 290704

ryan.koppelman@alston.com

ALSTON & BIRD LLP

1950 University Avenue

5th Floor

East Palo Alto, CA 94303-2282

Phone: 650.838.2000

Fax: 650.838.2001

ATTORNEY FOR AMICUS CURIAE

NOKIA TECHNOLOGIES OY

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

NOTICE OF MOTION AND MOTION OF

NOKIA TECHNOLOGIES OY FOR LEAVE

TO FILE AN AMICUS CURIAE BRIEF IN

SUPPORT OF DEFENDANT QUALCOMM

INCORPORATED’S OPPOSITION TO

MOTION FOR PARTIAL SUMMARY

JUDGMENT

Date: October 18, 2018

Time: 1:30 pm

Location: San Jose Courthouse, Courtroom 8

Judge: Hon. Lucy H. Koh

Case 5:17-cv-00220-LHK Document 888 Filed 10/03/18 Page 1 of 4
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-2- Case No. 5:17-cv-00220-LHK-NMC

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT Nokia Technologies Oy (“Nokia”) hereby moves the

Court for leave to submit an amicus curiae brief in support of Qualcomm Incorporated’s

(“Qualcomm”) Opposition to Motion for Partial Summary Judgment (Dkt. No. 872-3). The

proposed amicus curiae brief is attached as Exhibit 1, and a Proposed Order is attached as Exhibit

2. This motion will be heard on October 18, 2018 at 1:30 pm, or as otherwise set by the Court.

Though Nokia submits this Motion for Leave, this motion may be suitable for resolution without a

hearing.

I. STANDARD FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF

The Ninth Circuit has held that a district court has broad discretion in the appointment of

amicus curiae. California v. U.S. Dep’t of Labor, No. 2:13-cv-02069-KJM-DAD, 2014 WL

12691095, at *1 (E.D. Cal. Jan. 14, 2014) (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.

1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 487 (1995)). There are no

strict prerequisites to qualify as an amicus curiae; rather, the party must “merely make a showing

that [its] participation is useful to or otherwise desirable to the court.” Infineon Techs. N. Am.

Corp. v. Mosaid Techs., Inc., No. C 02-5772 JF(RS), 2006 WL 3050849, at *3 (N.D. Cal. Oct. 23,

2006) (citation omitted). Accordingly, “[d]istrict courts frequently welcome amicus briefs from

non-parties concerning legal issues that have potential ramifications beyond the parties directly

involved.” Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc., 272 F. Supp. 2d 919,

925 (N.D. Cal. 2003).

II. STATEMENT OF IDENTIFY AND INTEREST OF AMICUS CURIAE

Amicus curiae is Nokia Technologies Oy.1 Nokia2is a leading innovator in the

telecommunications industry. Nokia has cumulatively invested approximately $140 billion in

1 No counsel for any of the parties authored any portion of this brief. No entity other than

amicus curiae Nokia Technologies Oy monetarily contributed to the preparation or submission of

this brief.

2 References to Nokia in this section include Nokia Technologies Oy and its parent, Nokia

Oy, and its affiliates.

Case 5:17-cv-00220-LHK Document 888 Filed 10/03/18 Page 2 of 4
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-3- Case No. 5:17-cv-00220-LHK-NMC

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

research and development relating to mobile communications over the past two decades, and as a

result of this commitment, currently owns over 20,000 patent families. Nokia has also played a

prominent role in developing technologies that are incorporated in the 2G, 3G, and 4G mobile

cellular standards that have been vital to the success of the global mobile telecoms market. Nokia

is a significant owner of cellular standards essential patents (“SEPs”), and has a significant

number of licensees to those cellular SEPs. Nokia remains at the forefront of developing cellular

technologies, including in emerging 5G standards, and continues to contribute technologies

covered by its patented inventions as well as to renew its industry-leading patent portfolio.

Nokia also has been for many years and continues to be one of the largest manufacturers of

wireless, fixed, and optical telecommunications network equipment, and continues to invest

heavily in related research and development, including over $5.5 billion in 2017. As part of its

ongoing businesses, which employ over 100,000 and operate in around 130 countries, Nokia has

also negotiated and secured licenses to cellular SEPs owned by other industry players.

Nokia has been involved in numerous patent cases in U.S. district courts, both as a plaintiff

and a defendant, including cases involving SEPs.

III. PERSPECTIVE PROVIDED BY AMICUS CURIAE

As a leading innovator in the telecommunications industry and active participant in

standards development, Nokia’s perspective will assist the Court in evaluating issues raised in

FTC’s Motion for Partial Summary Judgment. Nokia’s understanding is that the various 3GPP

and 3GPP2 Organizational Partner IPR Policies have not required SEP owners to license cellular

SEPs at the component level. For international standards, like the 3GPP and 3GPP2 standards that

govern cellular telecommunications, consistency in (F)RAND license obligations across

Organizational Partners is necessary to ensure that SEP owners and implementers do not

potentially face a patchwork of differing practices across different jurisdictions. The FTC’s

Motion for Partial Summary Judgment, however, contravenes industry norms and would lead to

the ATIS and TIA IPR Policies being inconsistent with the ETSI IPR Policy. The FTC’s

Case 5:17-cv-00220-LHK Document 888 Filed 10/03/18 Page 3 of 4
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-4- Case No. 5:17-cv-00220-LHK-NMC

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

arguments regarding the interpretations of the ATIS and TIA IPR Policies are novel and

surprising, and could have unintended consequences for other SEP holders and the industry at

large. Thus, Nokia’s participation concerns “potential ramifications beyond the parties directly

involved.” Sonoma Falls Developers, 272 F. Supp. 2d at 925.

IV. CONCLUSION

For the reasons set forth herein, Nokia respectfully requests that the Court grant this

Motion for Leave to File an Amicus Curiae Brief in Support of Defendant Qualcomm

Incorporated’s Opposition to Motion for Partial Summary Judgment.

Nokia has conferred with counsel for the parties. Counsel for Qualcomm does not oppose

this Motion. Counsel for the FTC has not responded to provide its position on the Motion.

Respectfully submitted,

Date: October 3, 2018 /s/ Ryan W. Koppelman

Ryan W. Koppelman

CA Bar No. 290704

ryan.koppelman@alston.com

ALSTON & BIRD LLP

1950 University Avenue

5th Floor

East Palo Alto, CA 94303-2282

Phone: 650.838.2000

Fax: 650.838.2001

ATTORNEY FOR AMICUS CURIAE NOKIA

TECHNOLOGIES OY

Case 5:17-cv-00220-LHK Document 888 Filed 10/03/18 Page 4 of 4