Exhibit 28

Case 5:17-cv-00220-LHK Document 937-9 Filed 11/28/18 Page 1 of 8
1 FEDERAL TRADE COMMISSION

2

3

4 FEDERAL TRADE COMMISSION, )

5 Plaintiff, )

6 vs. ) Case No.

7 QUALCOMM INCORPORATED, a ) 5:17-cv-00220-LHK-NMC

8 Delaware corporation, )

9 Defendant. )

10

11

12

13 The videotaped deposition of DR. BERTRAM

14 HUBER, called by the Federal Trade Commission, for

15 examination, taken before Stephanie A. Battaglia, CSR

16 and Notary Public in and for the County of DuPage and

17 State of Illinois, at 191 North Wacker Drive, Suite

18 2700, Chicago, Illinois, on August 8, 2018, 9:16 a.m.

19

20

21

22

23

24

25

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For The Record, Inc.

1 meaning of the respective words and terms used in that

2 clause you come to the conclusion that it makes a

3 difference at which level you license.

4 Therefore, to give you a direct answer to

5 my question of whether I believe this FRAND commitment

6 would require to grant a license to anybody, my clear

7 answer is, no, it does not, and it does not

8 deliberately.

9 Q. I understand that -- again, I am

10 paraphrasing, but I understand that your opinion as

11 set forth in your report is that you said it depends

12 at the level at which you are licensing, and my

13 understanding of your opinion is that the FRAND

14 commitment does not require IPR holders to license at

15 the component level, is that accurate?

16 A. This is accurate, yes. It does not

17 require to grant a license at the component level.

18 Q. And under your reading of the ETSI IPR

19 Policy would the policy permit an IPR -- an IPR holder

20 to assert its patents against a component maker, to

21 exclude that component maker?

22 A. That is probably too general a question

23 would be necessary to have the specific circumstances,

24 but basically the fact that the ETSI IPR Policy

25 especially in its Clause 6.1 states as a requirement

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FTC v. Qualcomm, Inc. 8/8/2018

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For The Record, Inc.

1 higher royalties?

2 A. No, it would not, because it would allow

3 the patentholder to obtain an appropriate royalty, a

4 fair and reasonable royalty, because the royalty is

5 being calculated at the level of the relevant device

6 where all the positive effects being contributed by

7 especially network connectivity, universal network

8 connectivity, comes to life, and that is where it --

9 why it makes most sense.

10 In addition, and I think I have

11 elaborated on this on various instances, it has been

12 industry practice all the time, it makes most sense,

13 it is most practical, and any deviation therefrom is

14 not impractical but it is really hard to practice at

15 all because a different regime of licensing at various

16 levels at mixing various levels of licensing would end

17 up in a total mess because you cannot all only look at

18 one single licensor, you have to look at all of them,

19 and you end up in a nightmare of checking and double

20 checking what can be licensed, what has been licensed

21 already, and that is simply why industry has chosen

22 and stick to that until today that the base for

23 licensing is the end-user device, and that makes

24 perfect sense.

25 Q. So in the same paragraph you refer to

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For The Record, Inc.

1 submissions of ETSI members with proposals relating to

2 a small and salable practicing unit?

3 A. Yes.

4 Q. I know we talked about this earlier. Are

5 you familiar with any of the cases from U.S. courts

6 containing guidance on the small and salable patent

7 practicing unit?

8 A. All I know is that there are I think very

9 rare cases which deal with that, but I am not familiar

10 with any of these in detail. As I said, I am not an

11 expert in U.S. law.

12 Q. Would you agree though that a

13 patentholder seeking damages in a U.S. court would be

14 bound by the U.S. patent laws and guidance from the

15 U.S. federal courts?

16 A. If you go to court probably the court

17 will apply the laws of the jurisdiction it is placed

18 in that for sure. But here we are talking about FRAND

19 licensing, we are not talking about patent damages

20 law, so that is basically two different aspects.

21 Patent license, negotiated and concluded patent

22 license is not necessarily guided only by the patent

23 damages law of this country. Typically licenses are

24 portfolio licenses for the whole world so why should

25 they be guided alone by the court's practices in one

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For The Record, Inc.

1 particular country and be it a very important country.

2 Q. Turn to Page 32, the second to last

3 paragraph, it begins with "The fact that the ETSI IPR

4 Policy does not prescribe specific rules."

5 A. Yes.

6 Q. The end of that sentence you say, "the

7 FRAND commitment should be viewed as consistent with

8 common industry licensing practices."

9 A. Yes.

10 Q. Is there any basis in the text of the IPR

11 -- ETSI IPR Policy for the idea that the commitment

12 should be viewed as consistent with common industry

13 licensing practices?

14 A. Well, coming from the other ends you can

15 certainly state that would ETSI have been concerned to

16 change industry practice it would have had to

17 positively state so.

18 ETSI decided not to do so, to the

19 contrary, to leave the definition of the specific

20 terms and conditions to be made basis of the license

21 agreement to the parties and the parties bilateral

22 negotiation. And at the same time general industry

23 practice was there, was existing, and it was generally

24 known and there was no point where I could recall that

25 ever anybody advocated for changing existing industry

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For The Record, Inc.

1 practice.

2 That is why I think it is fair to say

3 that the fact that there is no specific rules to

4 deviating from or only rules generally how licensing

5 complying with FRAND should be done is indicative in

6 any case that the industry practices as they were

7 present and they have remained present until the

8 present day would be understood as being in line with

9 the ETSI FRAND requirements.

10 Q. And the reference to the common industry

11 licensing practices there, you are referring to the

12 industry practices when the ETSI IPR Policy was

13 adopted in 1994, correct?

14 A. At that time, yes.

15 Q. And do you have an understanding as to

16 whether -- let me rephrase that.

17 Would you agree that in 1994 when the

18 policy was adopted most handset makers were vertically

19 integrated?

20 A. I am not sure I can answer this. I would

21 have to look into this in more detail. I probably

22 sitting here today I think I would require some time

23 to look deeper into this. I am not sure I can confirm

24 this.

25 Q. If it were the case that most handset

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For The Record, Inc.

1 STATE OF ILLINOIS)

2 ) SS.

3 COUNTY OF DUPAGE )

4 I, STEPHANIE A. BATTAGLIA, CSR and Notary

5 Public in and for the County of DuPage and State of

6 Illinois, do hereby certify that on August 8, 2018, at

7 9:16 a.m., at 191 North Wacker Drive, Suite 2700,

8 Chicago, Illinois, the deponent DR. BERTRAM HUBER

9 personally appeared before me.

10 I further certify that the said DR. BERTRAM

11 HUBER was by me first duly sworn to testify and that

12 the foregoing is a true record of the testimony given

13 by the witness.

14 I further certify that the deposition was

15 terminated at 5:45 p.m.

16 I further certify that I am not counsel for

17 nor related to any of the parties herein, nor am I

18 interested in the outcome hereof.

19 In witness whereof, I have hereunto set my

20 hand and seal of office this 9th of August, 2018.

21 s/Stephanie A. Battaglia

22 Notary Public

23 CSR No. 084-003337 - Expiration Date: May 31, 2019.

24

25

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