Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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

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MORGAN, LEWIS &

BOCKIUS LLP

ATTORNEYS AT LAW

SAN FRANCISCO

KEKER, VAN NEST & PETERS LLP

Robert A. Van Nest (SBN 84065)

rvannest@keker.com

Eugene M. Paige (SBN 202849)

epaige@keker.com

Justina Sessions (SBN 270914)

jsessions@keker.com

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188

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, New York 10019-7475 

Telephone: (212) 474-1000

Facsimile: (212) 474-3700

Attorneys for Defendant 

QUALCOMM INCORPORATED

MORGAN, LEWIS & BOCKIUS LLP

Richard S. Taffet (pro hac vice)

richard.taffet@morganlewis.com

101 Park Avenue

New York, NY 10178-0060

Telephone: (212) 309-6000

Facsimile: (212) 309-6001

MORGAN, LEWIS & BOCKIUS LLP

Willard K. Tom (pro hac vice)

willard.tom@morganlewis.com

1111 Pennsylvania Avenue NW

Washington, DC 20004-2541

Telephone: (202) 739-3000

Facsimile: (202) 739-3001

MORGAN, LEWIS & BOCKIUS LLP

Geoffrey T. Holtz (SBN 191370)

gholtz@morganlewis.com

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Telephone: (415) 442-1000

Facsimile: (415) 442-1001 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

FEDERAL TRADE COMMISSION,

Plaintiff,

vs.

QUALCOMM INCORPORATED, a Delaware 

corporation,

Defendant. 

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

DEFENDANT QUALCOMM 

INCORPORATED’S OBJECTIONS TO

REPLY EVIDENCE FILED BY

THE FTC IN SUPPORT OF ITS

MOTION FOR PARTIAL SUMMARY 

JUDGMENT

Date: October 18, 2018

Time: 1:30 p.m.

Dept.: Courtroom 8, 4th Floor

Judge: Hon. Lucy H. Koh

Trial Date: January 4, 2019

Case 5:17-cv-00220-LHK Document 898 Filed 10/11/18 Page 1 of 6
1 Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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

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MORGAN, LEWIS &

BOCKIUS LLP

ATTORNEYS AT LAW

SAN FRANCISCO

Pursuant to Civ. L.R. 7-3(d)(1), Qualcomm Incorporated objects to reply evidence filed by 

the FTC in support of its motion for partial summary judgment, and to new arguments raised for 

the first time therein. (ECF Nos. 893-0, 893-1, 893-2.) Qualcomm objects on the basis of both 

inadmissibility and unfair prejudice.

Reply Exhibits 6 & 7: Qualcomm objects to the web pages titled “Certifiable 

Technologies” and “Certified Platforms” from the Global Certification Forum (“GCF”) website 

as irrelevant and confusing, as hearsay, improperly authenticated and incomplete. Fed. R. 

Evid. 402, 403, 901, 602, 802, 106. First, the exhibits are irrelevant to the FTC’s assertion that a 

modem chip “can be certified for compliance with cellular standards.” (Reply at 4 n.6.) Exhibit 7 

states that a chipset can be a “certified platform” that is integrated with other platforms into a 

single “certified product” (Reply Ex. 7). Other information on GCF’s website shows that GCF 

tests products for compliance with its own “Certification Criteria,” not for compliance with ATIS 

or TIA standards.1 Second, the exhibits are inadmissible because the web pages are not properly 

authenticated and the declarant, counsel for the FTC, has no foundation to testify that the exhibits 

mean what the FTC alleges them to mean. Orr v. Bank of America, 285 F.3d 764, 773-74 (9th 

Cir. 2002) (proper foundation must be laid for documents submitted in connection with summary 

judgment). Third, the FTC seeks to rely on the statements for the truth of what they purportedly 

(according to the FTC) assert, which is hearsay. Finally, the actual exhibits attached to the Milici 

Declaration are incomplete as words are cut-off or missing. On all these grounds, these exhibits 

should be excluded.

Reply Exhibits 9-11, 15 and 22: Qualcomm objects to (1) certain Qualcomm ASIC 

patent agreements (Reply Exs. 9-11), (2) a presentation to a cellular carrier in September 2005

(Reply Ex. 15), and (3) a purported Qualcomm webpage the FTC obtained from web.archive.org 

(Reply Ex. 22). The documents are irrelevant, confusing and unfairly prejudicial. Fed. R. Evid.

402; Fed. R. Evid. 403. The FTC relies on them to argue in its Reply that “undisputed evidence 

 1 GCF, “Certification Process”, 

https://www.globalcertificationforum.org/certification/certification-process.html (accessed Oct. 9, 

2018).

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2 Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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

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BOCKIUS LLP

ATTORNEYS AT LAW

SAN FRANCISCO

shows that chip-level licensing is common in the industry.” (Reply at 4 & nn.8-10; Reply at 11-

12 & nn.28 and 29.) But, in its opening brief, the FTC specifically asserted that Qualcomm’s

“patent-related agreements with certain modem-chip sellers” addressed in the Exhibits “were not 

licenses”, and that Qualcomm’s “long-standing practice” has been to not license modem chips. 

(Mot. at 6.) It would be unfairly prejudicial to Qualcomm for the Court to allow the FTC to cite 

in its reply new evidence in support of a new argument that is contrary to the FTC’s position in its 

Motion papers. The cited material should be excluded.

Reply Exhibit 14: Qualcomm objects to the excerpt from Qualcomm’s 1998 motion for 

partial summary judgment in Ericsson v. Qualcomm, a patent infringement action. The FTC 

mischaracterizes the exhibit, and its inclusion in the reply without appropriate context is 

prejudicial to Qualcomm. Fed. R. Evid. 106 (requiring introduction of other writing that “in 

fairness ought to be considered at the same time”), Fed. R. Evid. 403 (unfair prejudice). 

Specifically, the FTC argues that the exhibit shows Qualcomm advocating for a chip-level license 

but omits critical information about the posture of the case, including (i) the products that had 

been accused of infringement, which included Qualcomm cellular phones and infrastructure 

equipment, and (ii) the fact that Qualcomm did not claim any entitlement to a license until 

Ericsson asserted its patents against Qualcomm and sought an injunction. (Reply Ex. 24 ¶ 11

(defining “infringing products” to include “CDMA portable phones” and “Base Station” 

equipment); Id. ¶¶ A, B (seeking injunction).)

Reply Exhibit 21: Qualcomm objects to the admissibility of the submission to a foreign 

government agency as hearsay and contrary to the best evidence rule. Fed. R. Evid. 802; Fed. R. 

Evid. 1002 (“an original writing . . . is required to prove its content”). The FTC cites to 

Exhibit 21 for the truth of the matters asserted therein, i.e. that the entity that made the 

submission has “very broad” cross-licenses that “may cover patents covering a wireless 

telecommunications standard”. (Reply at 11 & n.26.) The FTC should have submitted those 

agreements so its contentions concerning the agreements could be assessed in light of their 

contents. By contrast, Qualcomm has referred to submissions to foreign agencies when entities 

reported having no or de minimis licenses to cellular SEPs, and such statements were against the 

Case 5:17-cv-00220-LHK Document 898 Filed 10/11/18 Page 3 of 6
3 Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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

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ATTORNEYS AT LAW

SAN FRANCISCO

entities’ interests. (Opp. at 10.)

Reply Exhibits 24, 25, and 26: Qualcomm objects to the admissibility of the Second 

Amended Complaint for Patent Infringement in Ericsson, Inc. v. Qualcomm, Inc. (Reply Ex. 24) 

and Nokia’s and Ericsson’s complaints against Qualcomm to the European Commission (Reply 

Exs. 25 and 26). These were mere allegations asserted by Nokia and Ericsson, but the FTC offers 

these documents as proof of the matters asserted in them (Reply at 12 & n.30; Reply at 13 & 

nn.35 and 36), and they are therefore inadmissible hearsay.

Reply Exhibit 27: Qualcomm objects to the article “Why the ETSI IPR Policy Requires 

Licensing to All” by Karl Heinz Rosenbrock on a number of grounds. This document, which the 

FTC presents as evidence of the truth of the matter asserted therein, is inadmissible hearsay and 

lacks proper authentication. Fed. R. Evid. 802, 901; Orr, 285 F.3d at 777. The FTC did not 

authenticate the printout with a declaration from the author and, instead, merely attached it to an 

attorney declaration. Fed. R. Evid. 802, 901; Orr, 285 F.3d at 773-74. Exhibit 27 is also 

improper because it purports to provide the Court with undisclosed expert testimony contrary to 

Fed. R. Civ. Proc. 26(a)(2). 

* * *

In addition to the above objections and related thereto, the FTC improperly raised for the 

first time in its Reply papers two new arguments: (1) that Qualcomm’s interpretation of the 

licensing commitments at issue must be rejected because it would produce “absurd results” 

contrary to California Civil Code § 1643 (Reply Part II.A.4), and (2) that certain non-exhaustive 

patent agreements entered into by Qualcomm are “licenses” demonstrating an industry practice of 

chip-level licensing (Reply at 11-12). The FTC did not include either argument in its opening 

papers, or the cases and evidence it now cites in support thereof. Courts routinely disregard or 

deem such arguments waived. See In re Capacitors Antitr. Litig., 2017 WL 897340 at *1 (N.D. 

Cal. 2017) (raising a new argument in reply is improper and “a classic form of sandbagging”); In 

re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1035 (N.D. Cal. 2014) (“[T]he Court does not consider 

Yahoo’s consent argument in its Reply because arguments raised for the first time in Reply briefs 

are waived”) (citing Sealant Sys. Int’l, Inc. v. TEK Global S.R.L., 2014 WL 1008183, at *14 

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4 Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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(N.D. Cal. Mar. 7, 2014)); Dytch v. Yoon, 2011 WL 839421, at *3 (N.D. Cal. Mar. 7, 2011) (“It is 

improper for a moving party to introduce new facts or different legal arguments in the reply brief 

than those presented in the moving papers”). In the alternative, Qualcomm should be given the 

opportunity to respond to these newly raised arguments and evidence. See Provenz v. Miller, 102 

F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new evidence is presented in a reply to a motion for 

summary judgment, the district court should not consider the new evidence without giving the 

non-movant an opportunity to respond”); In re Yahoo, Inc. Customer Data Security Breach Litig., 

2017 WL 3727318, at *50 n.16 (N.D. Cal. Aug. 30, 2017); Landmark Screens, LLC v. Morgan, 

Lewis & Bockius, 2010 WL 3629816, at *2 (N.D. Cal. Sept. 14, 2010), vacated on other grounds,

676 F.3d 1354 (Fed. Cir. 2012).

Dated: October 11, 2018

By:

MORGAN, LEWIS & BOCKIUS LLP

/s/ Geoffrey T. Holtz

Geoffrey T. Holtz

Robert A. Van Nest (SBN 84065)

Eugene M. Paige (SBN 202849)

Justina Sessions (SBN 270914)

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111-1809

Telephone: (415) 391-5400 

Facsimile: (415) 397-7188

Gary A. Bornstein (pro hac vice)

Yonatan Even (pro hac vice)

CRAVATH, SWAINE & MOORE LLP

Worldwide Plaza

825 Eighth Avenue

New York, NY 10019-7475

Tel.: (212) 474-1000

Fax: (212) 474-3700

gbornstein@cravath.com

yeven@cravath.com

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5 Objections to Reply Evidence Filed in Support

of Motion for Partial Summary Judgment

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

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MORGAN, LEWIS &

BOCKIUS LLP

ATTORNEYS AT LAW

SAN FRANCISCO

Richard S. Taffet (pro hac vice)

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 (pro hac vice)

MORGAN, LEWIS & BOCKIUS LLP

1111 Pennsylvania Avenue NW

Washington, DC 20004-2541

Tel.: (202) 739-3000

Fax: (202) 739 3001

willard.tom@morganlewis.com

Geoffrey T. Holtz (SBN 191370)

MORGAN, LEWIS & BOCKIUS LLP

One Market, Spear Street Tower

San Francisco, CA 94105-1596

Tel.: (415) 442-1000

Fax: (415) 442-1001

gholtz@morganlewis.com

Attorneys for Defendant 

QUALCOMM INCORPORATED

Case 5:17-cv-00220-LHK Document 898 Filed 10/11/18 Page 6 of 6