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

 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 QUALCOMM’S RESPONSE 

TO FTC’S INTERROGATORY NO. 4 

Magistrate Judge: 

Hon. Nathaniel M. Cousins

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 1 of 7
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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, 

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

I. The FTC’s Position

FTC Interrogatory No. 4 asks Qualcomm to “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”.1 Qualcomm has 

acknowledged that it does so contend, but has refused to either (1) identify and produce any such 

measures or (2) confirm that it is not aware of any measures that support its contention. 

Qualcomm’s February 28 Responses and Objections to Interrogatory No. 4 were largely 

non-responsive. For example, the February 28 Response failed to specify whether Qualcomm

actually contends that “no company can match the breadth, quality, or value of Qualcomm’s 

cellular patent portfolio.” After the FTC requested more specificity through a meet and confer 

process, Qualcomm served supplemental responses on March 30, 2018, stating that “Qualcomm 

does contend that “no company can match the breadth, quality, or value of Qualcomm’s cellular 

patent portfolio.”” In addition, the March 30 response stated that measures supporting its 

contention “may include ... any or some combination of” eight types of measures. However, the 

March 30 supplement failed to identify any specific measure that support Qualcomm’s 

contention. Given ongoing discovery, the FTC accepted that Qualcomm was, at that time, not 

aware of any specific measures that supported its contention. 

Again, in response to a request from the FTC pursuant to a meet and confer process, 

Qualcomm further supplemented its response to FTC’s Interrogatory No. 4 on May 15, 2018. 

But its May 15 supplement simply parrots the contention and identifies types of measures that 

“may” support its position. Again, Qualcomm has failed to identify any specific measures that 

actually support its contention. Moreover, Qualcomm has refused to confirm that it is unaware of 

any such measures. (The FTC disputes Qualcomm’s various characterizations of the meet-andconfer process, and Qualcomm’s interrogatory response speaks for itself.) 

A core dispute in this litigation is whether Qualcomm’s no license – no chips policy leads 

to higher royalties that act as an exclusionary tax on would-be chipset rivals. Qualcomm has 

made clear that it will dispute whether there is a royalty overcharge by, among other things, 

referencing the value of its portfolio as compared to that of other significant contributors to 

cellular standards. The FTC is entitled to know upon which facts Qualcomm actually intends to 

rely to support its contention that its portfolio is more valuable than the portfolios of other 

standards contributors, and Qualcomm’s response that support for its contention “may include ... 

any or some combination of” eight types of measures is insufficient. 

The FTC recognizes that this may be a topic of expert discovery and does not seek 

premature disclosure of expert materials. Rather, the FTC respectfully requests that the Court 

order Qualcomm to promptly identify any and all measures it is aware of that support its 

contention, including all quantitative measures, or else confirm that it is not aware of any such 

facts. Qualcomm had a basis to make its claim when it filed its Complaint in the Southern 

District action, and Qualcomm had a basis to support its claim when it confirmed its contention 

 1 The FTC excerpted this quotation from the Complaint Qualcomm filed in the Southern District 

action, Paragraph 32. 

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 2 of 7
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on March 30. Qualcomm should be prepared to identify the factual basis for its contention now

that fact discovery is closed, but refused to do so on in its May 15 supplemental response. If 

Qualcomm needs to supplement its response at some point in the future by referencing expert 

opinions, the FTC respectfully suggests that the Court order Qualcomm to provide any such 

supplement on the same date that Qualcomm provides its expert reports to the FTC. 

II. Qualcomm’s Position

A. The FTC Failed to Meet and Confer

On February 28, 2018, Qualcomm responded to the FTC’s broad contention Interrogatory 

No. 4, providing detailed bases for the fact that no company can match the breadth, quality, or 

value of Qualcomm’s cellular patent portfolio. Qualcomm’s response also included references to 

responsive documents as permitted under FRCP 33(d). Notwithstanding this detailed response, 

the FTC demanded that Qualcomm supplement its response to identify the “measures” that 

support Qualcomm’s contention. Qualcomm agreed to do so and on March 30 provided a 

supplemental response identifying various indicators of the breadth and value of Qualcomm’s 

patent portfolio.

Qualcomm heard nothing further for five weeks. Then, on May 3, after Qualcomm had 

asked to meet and confer regarding the FTC’s response to certain interrogatories, the FTC first 

mentioned that it would like to meet and confer “regarding the identity and characteristics of the 

license agreements referenced” in Qualcomm’s response to Interrogatory No. 4. The parties met 

and conferred, and the only issue the FTC raised was a request for the specific licensee names for 

licenses referenced in Qualcomm’s February 28 response; the FTC made no mention of the 

issues raised in this Joint Statement or in the March 30 supplemental response. Following that 

meet and confer, Qualcomm further supplemented its response to include the requested licensee

information on May 15.

 The FTC asserts that Qualcomm “refused” to “identify the factual basis for its 

contention” in its May 15 supplemental response. But the FTC never even mentioned the issues 

it raises here until two days ago, even though it now targets the supplemental response 

Qualcomm served on March 30. On May 16, the FTC raised for the first time the issue raised in 

this Joint Discovery Statement, demanding that Qualcomm further supplement its response to 

identify all specific “analyses of the metrics you lay out on pages 5 and 6 of your supplemental 

response.” Qualcomm responded the same day that it had provided a complete response, and 

that the FTC now sought expert analysis. The following day, with no further attempt to meet and 

confer, the FTC followed with this Joint Statement.

Notwithstanding this failure of the meet and confer process, to avoid unnecessary motion 

practice, upon receipt of the FTC’s draft of this Joint Statement on May 17, Qualcomm promptly

notified the FTC that it would agree to provide a supplemental response to Interrogatory No. 4 at 

the time it serves its expert reports. Qualcomm assumed this would moot this issue. However, 

late that evening, the FTC rejected that proposal and demanded that Qualcomm commit that any 

supplemental response would fully comply with what it has asked the Court to order here, i.e., to 

“identify any and all measures it is aware of in the factual record that support its contention, 

including all quantitative measures.”

The FTC’s silence on this issue for seven weeks, its failure to raise it when the parties 

met and conferred on this precise interrogatory response, its raising of this new issue in an email 

on May 16, followed immediately by this Joint Statement, constitute another breakdown in the 

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 3 of 7
3

FTC’s approach to the meet and confer process and do not comply with this Court’s Standing 

Order. On that ground alone, the FTC’s request should be denied. It should also be denied for 

the additional reasons discussed below.

B. Qualcomm Provided a Complete Response 

Qualcomm’s response, as supplemented, to the FTC’s Interrogatory No. 4 is complete 

and fully responsive. In its February 28, 2018 response, Qualcomm provided the FTC with three 

pages of the reasons why no company can match the breadth, quality, or value of Qualcomm’s 

cellular patent portfolio. Qualcomm also identified hundreds of documents, by Bates number, in 

support of its response. Qualcomm’s supplemental March 30 response provided additional 

responsive information as requested by the FTC. This supplemental response enumerated a 

number of measures, stating that “any or some combination of the” listed measures could be used 

as appropriate. Qualcomm further provided in its May 15 supplemental response the precise 

additional information the FTC requested about the identity of licensees.

The FTC now seeks yet more information, which it refers to as “specific measures” 

regarding the factors that Qualcomm identified — at the FTC’s request — in its March 30 

supplemental response, such as “the classification of and composition of patent families in 

Qualcomm’s portfolio compared to others’ portfolios.” This level of detail is far beyond the 

scope of a generalized contention interrogatory. In addition, as the FTC recognizes, this calls for 

expert analysis. The Court has set a schedule for the exchange of expert reports, with 

Qualcomm’s reports not due until June 28. Qualcomm has not yet disclosed any experts, and the 

Federal Rules do not permit a party to sidestep the timing and procedures for expert disclosures 

through interrogatories seeking expert opinions or analysis. See FRCP 26(a)(2)(B) and 

26(b)(4)(D).

Qualcomm’s original response and supplemental responses provide a full and complete 

answer to this broad contention interrogatory. The FTC now seeks details that go well beyond 

the reasonable scope of the interrogatory and, in addition, calls for premature expert analyses. 

The FTC’s request should therefore be denied.

C. As A Compromise, Qualcomm’s Offer To Further Supplement Its Response 

When It Makes Its Expert Disclosures Should Be Accepted

The FTC’s instant motion seeks unreasonable relief for the additional reason that, in 

response to the FTC’s current request, Qualcomm offered to compromise and provide a 

supplemental response to Interrogatory No. 4 at the time it serves its expert reports — which is 

the time frame the FTC proposed when it first raised these issues in its draft May 16 Joint 

Statement — thus mooting the issues now raised by the FTC. However, the FTC took this as an 

opportunity to make even more demands, including that Qualcomm provide further information 

“promptly” rather than at the time of its expert reports, and that it commit to make specific 

disclosures, which Qualcomm cannot now make because Qualcomm’s proposed further response 

will necessarily rely upon its experts’ analyses, which in turn will be addressing the yet to be 

disclosed opinions of the FTC’s experts. The FTC cites no authority, and we are aware of none, 

that would require Qualcomm to disclose positions based on expert analyses in these 

circumstances.

For the reasons stated above, the FTC’s request should be denied in its entirety. In the 

alternative, Qualcomm has agreed to further supplement its response as appropriate at the time 

its serves its expert reports. But the Court should reject the FTC’s demand for specific 

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 4 of 7
4

information to be provided in the future that is contrary to the timing for expert disclosures under 

the Court’s scheduling order and the Federal Rules, and when it cannot yet be discerned what 

information will be relevant, available or necessary to respond to the FTC’s as-yet-unserved 

expert reports.

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 5 of 7
5

Dated: May 18, 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/ Gary A. Bornstein

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

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 6 of 7
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Richard S. Taffet 

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

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

Case 5:17-cv-00220-LHK Document 742 Filed 05/18/18 Page 7 of 7