FTC’S PRETRIAL BRIEF

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

Jennifer Milici, D.C. Bar No. 987096 

J. Alexander Ansaldo, Va. Bar No. 75870

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

Wesley G. Carson, D.C. Bar No. 1009899

Kent Cox, Ill. Bar No. 6188944

Elizabeth A. Gillen, Cal. Bar No. 260667

Geoffrey M. Green, D.C. Bar No. 428392

Nathaniel M. Hopkin, N.Y. Bar No. 5191598

Mika Ikeda, D.C. Bar. No. 983431

Rajesh S. James, N.Y. Bar No. 4209367

Philip J. Kehl, D.C. Bar No. 1010284

Daniel Matheson, D.C. Bar No. 502490

Kenneth H. Merber, D.C. Bar No. 985703

Aaron Ross, D.C. Bar No. 1026902

Connor Shively, Wash. Bar No. 44043

Mark J. Woodward, D.C. Bar. No. 479537

Federal Trade Commission

600 Pennsylvania Avenue, N.W.

Washington, D.C. 20580

(202) 326-3695; (202) 326-3496 (fax)

jmilici@ftc.gov

Attorneys for Plaintiff Federal Trade Commission

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

FEDERAL TRADE COMMISSION’S 

PRETRIAL BRIEF 

REDACTED VERSION OF 

DOCUMENT SOUGHT TO BE SEALED 

Date: January 4, 2019 

Time: 9:00 a.m.

Courtroom: 7, 4th Floor 

Judge: Hon. Lucy H. Koh 

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TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. LEGAL FRAMEWORK......................................................................................................2

III. QUALCOMM POSSESES MONOPOLY POWER IN THE MARKETS 

FOR CDMA AND PREMIUM LTE MODEM CHIPS.......................................................4

A. CDMA Modem Chips..............................................................................................5

B. Premium LTE Modem Chips...................................................................................7

IV. QUALCOMM ENGAGED IN ANTICOMPETITIVE CONDUCT...................................9

A. Qualcomm’s no license-no chips policy and use of incentive funds 

have dramatically impacted the terms of Qualcomm’s patent 

license agreements ...................................................................................................9

1. No license-no chips is a matter of Qualcomm corporate

policy............................................................................................................9

2. OEMs were heavily dependent on Qualcomm’s CDMA and 

Premium LTE modem chips during license negotiations..........................10

3. Qualcomm used incentive funds to secure OEMs’ 

acceptance of licensing terms ....................................................................10

4. Qualcomm’s chip leverage in license negotiations raises 

royalties......................................................................................................10

5. Qualcomm’s contention that its long-standing practices 

have no effect on royalties is implausible..................................................13

6. Qualcomm’s royalty surcharge raises rivals’ costs and 

harms competition......................................................................................14

B. Qualcomm’s refusal to license rivals bolsters its high royalties............................15

C. Qualcomm’s elevated royalties led to contracts with Apple that 

contributed to Qualcomm’s monopoly power .......................................................18

D. Modem-chip markets reflect the consequences of Qualcomm’s 

anticompetitive conduct.........................................................................................20

V. INJUNCTIVE RELIEF IS WARRANTED.......................................................................21

VI. CONCLUSION..................................................................................................................22

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TABLE OF AUTHORITIES

Cases

Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171 (9th Cir. 2016) .................................... 3

Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).................................... 16

Amarel v. Connell, 102 F.3d 1494 (9th Cir. 1996) ......................................................................... 3

Bhan v. NME Hospitals, Inc., 929 F.2d 1404 (9th Cir. 1991) ........................................................ 3

Broadcom Corp. v. Qualcomm, Inc., 501 F.3d 297 (3d Cir. 2007) .............................................. 16

Caldera, Inc. v. Microsoft Corp., 87 F. Supp. 2d 1244 (D. Utah 1999) ....................................... 14

CFTC v. Hunt, 591 F.2d 1211 (7th Cir. 1979).............................................................................. 21

CFTC v. Yu, No. 12-CV-3921-YGR, 2012 WL 3283430 (N.D. Cal. Aug. 10, 2012).................. 21

E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128 (2d Cir. 1984) ........................................... 3

E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. 2011)........................... 18

Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (1992) .......................................... 3

Free FreeHand Corp. v. Adobe Sys., Inc., 852 F. Supp. 2d 1171 (N.D. Cal. 2012)................... 4, 9

FTC v. Brown Shoe Co., 384 U.S. 316 (1966).............................................................................2-3

FTC v. Evans Prods. Co., 775 F.2d 1084 (9th Cir. 1985) ............................................................ 21

FTC v. Ind. Fed’n of Dentists, 476 U.S. 447 (1986)....................................................................... 2

McWane, Inc. v. FTC, 783 F.3d 814 (11th Cir. 2015).................................................................... 4

Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024 (9th Cir. 2015)............................................... 16

Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, 814 F.2d 358 (7th Cir. 1987) ........ 14

Realcomp II, Ltd. v. FTC, 635 F.3d 815 (6th Cir. 2011) ................................................................ 3

United States v. Dentsply Int’l, Inc., 399 F.3d 181 (3d Cir. 2005)................................................. 4

United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).................................... 3, 4, 20, 22

United States v. United Shoe Mach. Corp., 391 U.S. 244 (1968)................................................. 22

United States v. W.T. Grant Co., 345 U.S. 629 (1953)................................................................. 21

ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012).................................................. 3, 9

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Statutes

15 U.S.C. § 1................................................................................................................................... 3

15 U.S.C. § 2................................................................................................................................... 3

15 U.S.C. § 45(a) ............................................................................................................................ 2

Treatises

3 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law (1996 ed.) .......................................... 4

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I. INTRODUCTION

For over a decade, Qualcomm has been the dominant supplier of modem chips that allow 

cellular handsets to communicate with wireless networks. Over the same period, Qualcomm has

collected royalties for its cellular standard essential patents (“SEPs”) that far exceed the royalties 

collected by holders of comparable SEP portfolios. These phenomena are not unrelated. 

Qualcomm requires cell phone manufacturers (“OEMs”) to enter and maintain licenses to its 

cellular SEPs in order to retain access to Qualcomm’s modem chips—“no license, no chips.” 

This strategy, which sets Qualcomm apart from both other semiconductor suppliers and other 

SEP licensors, allows Qualcomm to use its market power in modem chips to extract a 

“surcharge” on top of its legitimate patent royalties.

Normally, SEP holders negotiate royalties and other license terms in the “shadow of the

law,” i.e., against a backdrop of a judicial determination of fair, reasonable, and nondiscriminatory (“FRAND”) royalties. Qualcomm, in contrast, has not negotiated in the shadow 

of the law. The evidence at trial will show that Qualcomm’s no license-no chips policy 

substantially diminishes OEMs’ ability and incentive to challenge Qualcomm’s royalty demands.

Unable to negotiate licenses in the shadow of the law, and instead threatened with loss of access 

to critical modem chips, OEMs have accepted Qualcomm’s unreasonable royalty demands,

which require OEMs to pay Qualcomm a surcharge on their use of competitors’ chips.

Qualcomm enhances its ability to collect a surcharge through related conduct, including through 

payments of funds designed to induce OEMs to accept Qualcomm’s preferred royalty terms. 

In other words, in order to maintain access to Qualcomm modem chips—which OEMs 

have required for certain handsets, including their flagship phones—OEMs must pay Qualcomm 

a surcharge even when they do not use Qualcomm chips. By wielding market power to collect a 

fee when customers use its competitors’ products, Qualcomm raises its rivals’ costs, thereby 

harming competition and consumers. 

Qualcomm also forecloses an avenue that its customers might otherwise employ to avoid 

Qualcomm’s required surcharge. Although Qualcomm promised standard-setting organizations 

that it would make cellular-SEP licenses available to competing modem chip suppliers, 

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Qualcomm has repeatedly refused to do so. The evidence will show that Qualcomm recognized

that making licenses available to its competitors would have hindered Qualcomm’s ability to 

collect elevated royalties from OEMs. Qualcomm’s breach of its FRAND commitments further 

weakened competitors by making their chips less attractive and by deterring entry and 

investment. 

In addition to using elevated royalties to raise its rivals’ costs, Qualcomm also used those 

royalties to secure exclusivity commitments from Apple, an OEM otherwise uniquely capable of 

sponsoring modem-chip entry. These exclusivity commitments further hindered and delayed 

rivals from entering and expanding their presence in relevant modem-chip markets. 

Qualcomm’s exclusionary conduct has contributed to the maintenance of its monopoly in 

the sale of modem chips that OEMs need to make CDMA-enabled handsets and premium LTEenabled handsets. By raising its rivals’ costs, Qualcomm has weakened rivals, forestalled entry 

and expansion, and harmed competition. A number of Qualcomm’s competitors have exited the 

relevant modem-chip markets, and Qualcomm’s exclusionary conduct has vitiated the threat that 

its remaining competitors would otherwise pose to its modem-chip monopoly.

As the industry shifts to 5G cellular communications, a significant danger exists that 

Qualcomm’s ongoing anticompetitive conduct will entrench its dominant position in a new 

generation of modem chips. Despite years of worldwide law enforcement and regulatory 

scrutiny, Qualcomm continues to engage in the anticompetitive practices challenged in this case. 

Trial will establish the harm this has caused to competition and consumers and the injury it 

threatens to cause in the future. The Court should therefore enjoin Qualcomm’s anticompetitive 

sales and licensing practices.

II. LEGAL FRAMEWORK

Qualcomm’s conduct violates Section 5 of the Federal Trade Commission Act (“FTC 

Act”). Section 5 prohibits “[u]nfair methods of competition.” 15 U.S.C. § 45(a). “Unfair methods 

of competition” under the FTC Act include violations of the Sherman Act, FTC v. Ind. Fed’n of 

Dentists, 476 U.S. 447, 454-55 (1986), and also conduct that, although not a violation of the 

letter of the Sherman Act, conflicts with that Act’s basic policies. See FTC v. Brown Shoe Co., 

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384 U.S. 316, 321 (1966); E.I. du Pont de Nemours & Co. v. FTC, 729 F.2d 128, 138-40 (2d Cir. 

1984) (conduct may be an unfair method of competition if it is “collusive, coercive, predatory or 

exclusionary in character” or possesses other “indicia of oppressiveness”). 

Section 2 of the Sherman Act prohibits monopolization, which consists of (1) the 

possession of monopoly power in a relevant market; and (2) anticompetitive conduct—“the 

willful acquisition or maintenance of that power as distinguished from growth or development as 

a consequence of a superior product, business acumen, or historic accident.” Eastman Kodak Co. 

v. Image Tech. Servs., Inc., 504 U.S. 451, 481 (1992); see also 15 U.S.C. § 2. Section 1 of the 

Sherman Act prohibits “[e]very contract, combination . . . or conspiracy, in restraint of trade or 

commerce.” 15 U.S.C. § 1. Thus, proof of a Section 1 violation requires evidence (1) of the 

existence of an agreement, i.e., concerted action; and (2) that the agreement unreasonably

restrained competition. See Aerotec Int’l, Inc. v. Honeywell Int’l, Inc., 836 F.3d 1171, 1178 (9th 

Cir. 2016). An agreement is prima facie “unreasonable” if (1) a defendant has market power in 

the relevant market; and (2) the challenged agreement tends to harm competition. See Bhan v. 

NME Hospitals, Inc., 929 F.2d 1404, 1413 (9th Cir. 1991); Realcomp II, Ltd. v. FTC, 635 F.3d 

815, 827 (6th Cir. 2011). 

The legal analysis of Qualcomm’s conduct under Sections 1 and 2 of the Sherman Act is 

similar. Cf. United States v. Microsoft Corp., 253 F.3d 34, 59 (D.C. Cir. 2001). Section 1, 

however, requires an agreement among two or more firms.

1 In addition, a lesser showing is 

required to establish market power for Section 1 purposes than to establish monopoly power for 

Section 2 purposes. See Eastman Kodak, 504 U.S. at 481; Amarel v. Connell, 102 F.3d 1494, 

1522 (9th Cir. 1996).2

 

1 Agreements coerced or “essentially forced” by a defendant nonetheless constitute concerted 

action under Section 1. ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254, 277 (3d Cir. 2012).

2 In addition, exclusive dealing by a monopolist may violate Section 2 even if the relevant 

contracts foreclose less than the roughly 40% to 50% of the relevant market typically deemed 

“substantial” and thus anticompetitive for Section 1 purposes. See, e.g., Microsoft, 253 F.3d at 

70; infra IV.C.

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Under the Sherman Act, conduct that “harm[s] the competitive process, and thereby 

harm[s] consumers” is anticompetitive. McWane, Inc. v. FTC, 783 F.3d 814, 835-36 (11th Cir. 

2015) (quoting Microsoft, 253 F.3d at 58). A government plaintiff need not, however, 

“reconstruct the hypothetical marketplace absent a defendant’s anticompetitive conduct.” 

Microsoft, 253 F.3d at 79 (quoting 3 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law 

¶ 651c, at 78 (1996 ed.)). Rather, a government plaintiff must show that the “defendant has 

engaged in anticompetitive conduct that “reasonably appear[s] capable of making a significant 

contribution to . . . maintaining monopoly power.” Id.; accord McWane, 783 F.3d at 833; United 

States v. Dentsply Int’l, Inc., 399 F.3d 181, 187 (3d Cir. 2005). When a defendant has engaged in 

multiple acts or practices that may be anticompetitive, a court must consider their interactions 

and combined effects. Free FreeHand Corp. v. Adobe Sys., Inc., 852 F. Supp. 2d 1171, 1180 

(N.D. Cal. 2012).

III. QUALCOMM POSSESES MONOPOLY POWER IN THE MARKETS FOR 

CDMA AND PREMIUM LTE MODEM CHIPS

Qualcomm’s anticompetitive conduct has entrenched and prolonged Qualcomm’s 

monopoly power in two markets: (1) the market for “CDMA modem chips,” i.e., modem chips 

that comply with 2G or 3G CDMA standards,3 and (2) the market for “premium LTE modem 

chips,” LTE-compliant modem chips that OEMs deploy in premium handsets. 

At trial, the FTC will present evidence demonstrating that these markets constitute 

relevant antitrust product markets, and that Qualcomm possessed monopoly power in the market 

for CDMA modem chips from 2006 through 2016 and in the market for premium LTE modem 

chips from 2011 through 2016. 

Evidence at trial will show that these markets exhibit practical indicia of relevant antitrust 

product markets. In addition, the FTC’s economic expert, Professor Carl Shapiro, will testify 

regarding the hypothetical monopolist test (“HMT”), the standard methodology that antitrust 

 

3 CDMA modem chips include modem chips that comply with other cellular communications 

standards, such as UMTS and LTE, in addition to CDMA.

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economists employ to identify relevant markets. Professor Shapiro will explain that his 

implementation of the HMT confirms that CDMA modem chips and premium LTE modem chips 

constitute relevant antitrust markets. Professor Shapiro will further testify that Qualcomm’s high 

shares in these antitrust markets, in combination with other evidence, support the conclusion that 

Qualcomm possessed monopoly power in the market for CDMA modem chips from 2006 

through 2016 and in the market for premium LTE modem chips from 2011 through 2016. 

A. CDMA Modem Chips

Evidence at trial will demonstrate that OEMs selecting chips to deploy in their handsets 

do not consider other modem chips to be reasonable substitutes for CDMA modem chips. 

Wireless carriers around the world, including Verizon, Sprint, KDDI of Japan, and China 

Telecom, developed communications networks that require the use of handsets that comply with 

CDMA standards. OEMs need CDMA modem chips to supply handsets that meet these carriers’ 

requirements. While an OEM could in theory abandon the business of supplying CDMA-capable 

handsets, testimony presented at trial will show that major OEMs have not viewed this as a 

commercially viable option. 

Qualcomm has dominated the sale of CDMA modem chips. Between 2008 and 2014, 

Qualcomm’s only competitor was Via Telecom, which never accounted for more than 10% of 

the CDMA modem chips sold in a given year. MediaTek, 

 began supplying CDMA modem chips for use in handsets sold in China in 

2015 and for use in handsets sold in the United States in 2016. 

Qualcomm, like other industry participants, recognizes CDMA modem chips as a distinct 

industry segment and 

Qualcomm and its OEM customers refer to the premium that 

Qualcomm’s CDMA modem chips command over similar non-CDMA chips as Qualcomm’s 

“CDMA Adder.” 

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Qualcomm and its OEM customers recognize that the size of the “CDMA Adder” reflects 

the anemic competitive conditions in the market for CDMA modem chips.

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Shapiro will testify, based on his investigation of Qualcomm’s “CDMA Adder,” that the market 

for CDMA modem chips satisfies the HMT and constitutes a relevant antitrust market. 

Evidence at trial will show that Qualcomm possessed monopoly power in the market for 

CDMA modem chips in the period from 2006 through 2016. Professor Shapiro will testify that 

Qualcomm maintained a share exceeding 90% of the market for CDMA modem chips in each 

year from 2008 through 2014 and exceeding 80% in 2015, on both a unit and revenue basis; in 

2016, Professor Shapiro will testify that Qualcomm’s share exceeded 60% on a unit basis and 

74% on revenue basis.

Evidence that OEMs lacked acceptable alternatives to Qualcomm’s CDMA modem chips 

further supports the conclusion that Qualcomm possessed monopoly power in the relevant 

market. Via Telecom was the only alternative to Qualcomm from 2008 through 2014. Via 

Telecom’s modem chips lagged behind Qualcomm’s, however, and lacked complementary 

functionality, such as LTE capability. 

Considerable barriers have limited entry into the market for CDMA modem chips. 

Potential entrants face technical barriers to entry. Moreover, participation in the market for 

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CDMA modem chips requires developing complementary multimode technology; thus, entry 

requires considerable time and commitment of R&D resources. While MediaTek 

, it did not sell modem chips for use in handsets sold 

in China until 2015 and for use in handsets sold in the United States until October 2016. Finally, 

the Qualcomm practices that the FTC has challenged have created additional barriers to entry 

into the market for CDMA modem chips.

B. Premium LTE Modem Chips

Evidence at trial will also show that, from 2011 (when LTE modem chips were first sold 

in commercial quantities) through 2016, Qualcomm maintained monopoly power in a relevant 

antitrust market for premium LTE modem chips. 

Qualcomm and other industry participants recognize that premium LTE modem chips, 

which are LTE-compliant modem chips used in premium handsets, constitute a distinct 

economic segment. Premium LTE modem chips support features—including advanced carrier 

aggregation and multiple in-multiple out—that modem chips used in lower-tier LTE handsets do 

not support. 

OEMs do not consider other modem chips to be reasonable substitutes for premium LTE 

modem chips.

 

The market for premium LTE modem chips is subject to distinct competitive conditions. 

Different competitive conditions translate into different pricing. 

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Professor Shapiro will testify that the HMT confirms that premium LTE modem chips 

constitute a relevant antitrust market. To implement the HMT (and assess Qualcomm’s share of 

the premium LTE market), Professor Shapiro adopted Qualcomm’s own definition of a premium 

handset 

and defined a modem chip as a premium LTE modem chip if it appeared in a premium handset. 

This approach is consistent with industry participants’ understanding that premium LTE modem 

chips correspond to LTE-compliant modem chips used in premium handsets. By analyzing 

Qualcomm’s forecasts of the impact 

 Professor Shapiro concluded that a candidate market 

for premium LTE modem chips satisfies the HMT. 

Professor Shapiro will also explain that Qualcomm possessed monopoly power in the 

market for premium LTE modem chips from 2011 through 2016. Professor Shapiro will testify at 

trial that he calculated that Qualcomm maintained market shares exceeding 80% from 2011 

through 2015, on both a unit and revenue basis, and market shares of 57% on a unit basis and 

63% on a revenue basis in 2016. 

 

Professor Shapiro’s conclusion that Qualcomm possessed monopoly power in the market 

for premium LTE modem chips is corroborated by evidence that OEMs lacked acceptable

alternatives to Qualcomm’s premium LTE modem chips. For example, 

 

Substantial barriers hinder entry into the market for premium LTE modem chips. 

Developing premium LTE modem chips requires large, ongoing R&D expenditures, upward of a 

billion dollars a year. And entry into the market takes several years. Given the critical role that 

OEMs play in “maturing” a modem-chip supplier’s technology, establishing relationships with 

major OEMs is a critical step in entering the market for premium LTE modem chips. And 

Qualcomm’s challenged business practices have created additional barriers to entry by denying 

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rivals such relationships. 

IV. QUALCOMM ENGAGED IN ANTICOMPETITIVE CONDUCT

Qualcomm has used several interrelated practices to maintain its monopoly over CDMA 

and premium LTE modem chips. The “combined effect” of these practices has been to weaken 

Qualcomm’s rivals and entrench its monopoly. Free FreeHand Corp., 852 F. Supp. 2d at 1180. 

A. Qualcomm’s no license-no chips policy and use of incentive funds have 

dramatically impacted the terms of Qualcomm’s patent license agreements

1. No license-no chips is a matter of Qualcomm corporate policy

As evidence at trial will show, Qualcomm’s practice of conditioning the sale of modem 

chips on its customers’ entry into and maintenance of a separate patent license with Qualcomm 

(“no license-no chips”) is admitted, long-standing, and implemented as a matter of corporate 

policy. Current and former Qualcomm executives acknowledge the policy. And Qualcomm 

implements the policy through component supply agreements that govern modem chip sales. For 

example, Qualcomm’s supply agreement with

4 Other supply 

agreements contain similar terms. 

The supply risk to OEMs is clear enough from their supply agreements. But the evidence 

will show also that Qualcomm expressly advises OEMs of its no license-no chips policy in 

license negotiations. 

 

 

4 . 

5 The license agreements that Qualcomm executed in reliance on its no license-no chips policy 

are concerted action for purposes of Section 1 of the Sherman Act. See, e.g., ZF Meritor, 696 

F.3d at 277. 

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2. OEMs were heavily dependent on Qualcomm’s CDMA and Premium LTE 

modem chips during license negotiations 

Consistent with Qualcomm’s monopoly power in relevant modem-chip markets, evidence 

at trial will show that major OEMs were heavily dependent on Qualcomm for CDMA and 

premium LTE modem chips when they negotiated license agreements or extensions with 

Qualcomm. For example, , it 

was purchasing all of its CDMA chips from Qualcomm, because it could not find a suitable 

alternative. 

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3. Qualcomm used incentive funds to secure OEMs’ acceptance of licensing 

terms

Evidence at trial will show that, in some cases, Qualcomm used incentive funds to secure

acceptance of its patent licensing terms. Qualcomm paid these incentive funds through strategic 

and marketing fund agreements entered on the same day as patent license agreements, with funds 

often accruing through rebates on future purchases of Qualcomm chips. As the Court will hear, 

 

Although Qualcomm may argue that some of these funds served other purposes, 

4. Qualcomm’s chip leverage in license negotiations raises royalties

At trial, the court will hear testimony from a number of OEMs, including 

, that their dependence on Qualcomm for modem chip supply 

heavily influenced license negotiations and led to elevated effective royalties. For example, 

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Other OEMs will also testify that they accepted unreasonable license terms to ensure access to 

Qualcomm’s modem chips. 

Evidence at trial will also show that Qualcomm’s executives recognized the effectiveness 

of its no license-no chips policy. 

 

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The FTC’s experts will explain how and why Qualcomm’s no license-no chips policy 

allows it to secure elevated royalties from OEMs that are dependent on Qualcomm modem chips. 

The FTC’s licensing expert, Mr. Richard Donaldson, has decades of experience negotiating 

patent licenses in the semiconductor industry. Mr. Donaldson will explain that real-world license 

negotiations typically focus on patent value, with an eye toward the legal remedies available for 

patent infringement (as OEMs confirm). But when outside business interests—such as an OEM’s 

need for Qualcomm chips—are injected into license negotiations, the focus of negotiations shifts 

from patent value to overall business considerations. Because negotiations are driven by a 

comparison of the proposed license terms to potential alternatives, Qualcomm’s no license-no 

chips policy provided Qualcomm with substantial leverage, as OEMs dependent on Qualcomm’s 

chips faced the immediate and certain loss of lines of business as the alternative to accepting 

Qualcomm’s proposed license terms. 

Professor Shapiro will provide an economic analysis of Qualcomm’s leverage. Professor 

Shapiro will explain that, absent its no license-no chips policy, Qualcomm would negotiate 

licenses as other cellular-SEP holder do—in the shadow of the law. A potential licensee that 

failed to reach agreement with Qualcomm would face the prospect of paying litigation costs and 

court-ordered reasonable royalties, but would not face the prospect of a modem-chip supply 

disruption. In that setting, negotiations would lead to royalties close to those that the negotiating 

parties expect a court would impose, especially if litigation costs are small relative to the royalty 

payments at stake. 

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Qualcomm’s no license-no chips policy fundamentally alters the bargaining dynamic. 

Qualcomm’s monopoly power in premium CDMA and premium LTE modem chips means that 

OEMs would find losing the ability to purchase modem chips from Qualcomm extremely costly. 

In this setting, basic bargaining theory predicts that Qualcomm’s no license-no chips policy, by 

allowing Qualcomm to bring leverage from its market power in modem chips to bear on license 

negotiations, will lead to royalties that exceed the reasonable royalties that Qualcomm would 

otherwise obtain.

The FTC’s patent valuation expert, Mr. Michael Lasinski, will explain that OEMs’

testimony and economic theory are borne out by quantitative analysis: Qualcomm’s royalties are 

disproportionate to the value of its patent portfolio. Mr. Lasinski studied license agreements 

between major OEMs and major cellular SEP licensors other than Qualcomm, and compared the 

effective royalty rates in those agreements to Qualcomm’s royalty rates with those same OEMs. 

After accounting for variations in portfolio strength utilizing metrics used in industry 

negotiations and by courts adjudicating FRAND disputes, Mr. Lasinski found that Qualcomm’s 

rates significantly exceed the range of potential FRAND royalties. 

5. Qualcomm’s contention that its long-standing practices have no effect on royalties is implausible

Despite evidence from its own documents, its customers, and the FTC’s experts, 

Qualcomm contends that its long-standing policy has had no effect on its negotiated royalties. To 

support this contention, Qualcomm cites royalty rates in license agreements dating from the early 

1990s (for CDMA) and from the early 2000s (for UMTS). Licenses from that era do not provide 

a valid benchmark for assessing Qualcomm’s royalty rates over a 28-year period. As the FTC’s

experts will explain, the cellular industry has changed dramatically since those early licenses 

were executed: smartphones, which offer cameras, touch-screen displays, and applications and 

graphics processors, have supplanted feature phones, which offered only cellular connectivity to 

support voice calls and text messages; fundamental Qualcomm CDMA patents have expired; and 

new standards have been implemented (with Qualcomm holding a smaller share of essential 

patents). Qualcomm’s ability to sustain its handset-based royalty rates in the face of these 

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developments—which would have been expected to lower those rates—is evidence of its success 

in using modem-chip leverage to elevate its royalties. 

To the extent Qualcomm argues that the relative stability of its royalty rates is evidence 

that those rates are unaffected by modem-chip leverage, this argument ignores both the 

multifaceted character of Qualcomm’s license negotiations and Qualcomm’s strong incentives to 

maintain a consistent headline royalty rate. Qualcomm’s negotiations with OEMs are not limited 

to a single, headline royalty rate; they encompass other license terms and incentive funds, among 

other things. Moreover, maintaining a consistent headline royalty rate allowed Qualcomm to 

proffer that rate as a benchmark in future license negotiations. Accordingly, Qualcomm typically 

has not negotiated its headline royalty rates, as Mr. Donaldson will explain based on his analysis 

of Qualcomm’s negotiations. Instead, if necessary, Qualcomm has negotiated over other business 

terms, such as incentive funds. As a result of these factors, the stability of Qualcomm’s royalty 

rates does not support Qualcomm’s argument. 

6. Qualcomm’s royalty surcharge raises rivals’ costs and harms competition

Qualcomm’s imposition of a royalty surcharge raisesits rivals’ costs and harms

competition. By bringing leverage from Qualcomm’s modem-chip monopoly to bear on license 

negotiations, Qualcomm has been able to negotiate royalties that exceed the reasonable royalties 

that Qualcomm would otherwise have negotiated in the shadow of judicial enforcement of its 

FRAND commitments (supra § IV.A.4). As a result, the royalties that OEMs pay effectively 

consist of two components: a reasonable royalty reflecting the value of Qualcomm’s cellular 

SEPs, and an added surcharge that OEMs pay Qualcomm to maintain access to Qualcomm chips. 

Imposition of a surcharge of this nature is anticompetitive. See Premier Elec. Constr. Co. v. Nat’l 

Elec. Contractors Ass’n, 814 F.2d 358, 368 (7th Cir. 1987) (association fee applied to members 

and non-member contractors raised non-members’ costs and harmed competition); Caldera, Inc. 

v. Microsoft Corp., 87 F. Supp. 2d 1244, 1249-50 (D. Utah 1999) (“per-processor” royalty

charged on all computers, including those on which OEMs installed rival operating systems, was 

exclusionary); ECF 134 at 33. Professor Shapiro will testify at trial that this surcharge weakens 

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rival chipmakers and allows Qualcomm to raise prices paid by OEMs. 

Professor Shapiro will testify that, to analyze the economic effects of Qualcomm’s 

conduct on an OEM’s modem-chip selection, it is important to consider a modem chip’s “all-in 

price,” which is the modem-chip price plus the per-handset royalty. Qualcomm controls both 

components of its own all-in price, and it makes no economic difference how Qualcomm 

allocates the all-in price of its own chips between the chip price and royalty. But Qualcomm also 

controls a component of its rivals’ all-in price—the royalty that the OEM must pay Qualcomm

when using a rival’s chip. Thus, leveraging its modem-chip monopoly power to raise the royalty 

that applies to rivals’ chips allows Qualcomm to raise rivals’ all-in prices in an economically 

meaningful way. 

Professor Shapiro will testify that raising the royalties paid by rivals’ customers through

the no license-no chips policy and incentive funds is economically equivalent to raising the costs 

of rivals themselves by the same amount. As Professor Shapiro will explain, in the short run, 

Qualcomm’s conduct depresses the profits that rivals can make from selling modem chips and 

thereby reduces output of rival modem chips. At the same time, rather than reducing OEMs’ 

costs of using modem chips, Qualcomm conduct produces higher all-in modem-chip prices, 

thereby reducing overall output. In the long run, Qualcomm’s exclusionary conduct also reduces

investments by rival modem chip suppliers, leading those rivals to offer lower quality modem 

chips and/or to have reduced capacity to serve customers. In time, the excess royalty can induce 

exit from the market altogether and discourage potential entrants. 

B. Qualcomm’s refusal to license rivals bolsters its high royalties

As the Court held on summary judgment, Qualcomm’s FRAND commitments to U.S. 

standard-setting organizations require Qualcomm to make SEP licenses available on FRAND 

terms to modem-chip suppliers that request them. ECF 931 at 25. Yet as Qualcomm 

acknowledges,

As the evidence at trial will show, this is not because rivals have 

never requested licenses. To the contrary, 

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While private standard-setting can offer significant, procompetitive benefits, the 

realization of these benefits depends on the institution and observance of “meaningful 

safeguards” that prevent subversion of the standard-setting process “by members with economic 

interests in stifling product competition.” Broadcom Corp. v. Qualcomm, Inc., 501 F.3d 297, 

309-10 (3d Cir. 2007) (quoting Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 

501 (1988)); see Broadcom, 501 F.3d at 313 (identifying FRAND commitments as among these 

safeguards); Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1031, 1041 (9th Cir. 2015) 

(same). Conduct that breaches or circumvents these safeguards can form a basis for antitrust 

liability when such conduct involves an agreement that unreasonably restrains trade, e.g., Allied 

Tube, 486 U.S. at 501, or contributes to the acquisition or maintenance of monopoly power, e.g., 

Broadcom, 501 F.3d at 313-14; see also ECF 134 at 41-46 (concluding that the voluntary nature 

of Qualcomm’s FRAND commitments and the administrability of a judicial remedy, among 

other factors, distinguish Qualcomm’s breach of its FRAND commitments from refusals to deal 

outside the standard-setting context). 

Evidence at trial will show that Qualcomm’s refusal to make licenses available to its 

competitors, in breach of its FRAND commitments, contributes to the maintenance of 

Qualcomm’s modem-chip monopolies by preserving Qualcomm’s royalties, which include its 

anticompetitive surcharge. Professor Shapiro will testify that, if Qualcomm made licenses on 

FRAND terms available to its competitors, which do not rely on Qualcomm for modem-chip 

supply, those licenses would hamper Qualcomm’s ability to employ modem-chip leverage to 

impose an anticompetitive surcharge on OEMs.

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Evidence will show that Qualcomm’s refusal to make licenses available to modem-chip 

suppliers also disadvantaged its competitors in other ways. Qualcomm’s refusal to make licenses 

available to its competitors has exposed those competitors to business uncertainty. 

When Qualcomm’s modem-chip rivals requested patent licenses from Qualcomm, 

Qualcomm used to respond by offering them patent agreements (which were not licenses) that 

offered rivals limited protections in exchange for onerous conditions that weakened rivals’

ability to compete. For example, 

 

Qualcomm’s refusal to make licenses available to competitors also harmed competition 

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in other ways. 

 

C. Qualcomm’s elevated royalties led to contracts with Apple that contributed 

to Qualcomm’s monopoly power

In the case of Apple, a particularly significant OEM, Qualcomm leveraged its elevated 

royalties into contract terms that effectively required Apple to use only Qualcomm modem chips

in new handsets. 

In combination with 

Qualcomm’s royalty surcharge and refusal to license rivals, Qualcomm’s agreements with Apple 

further impaired competition by foreclosing rival modem-chip suppliers’ access to a key 

customer. See E.I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 452 (4th Cir. 2011) 

(exclusive dealing harmful where it “severely limit[s] . . . competition for the most important 

customers” that potential entrants “need[] to gain a foothold for effective competition”).

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See ECF 134 at 47 (rebates conditioned on a promise of exclusivity or on purchase of a specified 

quantity or market share of the seller’s goods or services may be understood as de facto

exclusive dealing contracts). 

The Court will hear testimony from Apple COO Jeff Williams that Apple understood the 

2011 Transition Agreement to be exclusive, and 

The same was true of the 2013 First 

Amended Transition Agreement. The Court will hear from Apple witnesses that Apple had an 

interest in working with multiple suppliers of modem chips; that Apple was intensively engaged 

with Intel during 2012 to develop modem chips for possible use in Apple products in 2014 

and/or 2015; and that Apple suspended that engagement in early 2013 as a result of its entry into 

the First Amended Transition Agreement and the related Business Cooperation and Patent 

Agreement.

Qualcomm recognized, and through these agreements successfully neutralized, Apple’s 

potential to strengthen rivals. Before signing the Transition Agreement, Qualcomm’s strategic 

plans stated that 

The evidence will show that Apple requires its suppliers to meet rigorous technical 

requirements, and engagement with Apple helps modem-chip suppliers improve the quality of 

their products. Other handset OEMs, recognizing the rigorous standards to which Apple holds its 

suppliers, regard a modem-chip supplier’s engagement with Apple as an indicator of its product 

quality. 

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Its exclusive deals with Apple kept competitors from 

working with this key OEM for a critical period. 

Qualcomm’s exclusive-dealing agreements with Apple succeeded in entrenching and 

prolonging Qualcomm’s monopoly power. In the years surrounding Qualcomm and Apple’s 

entry into the First Amended Transition Agreement, Apple purchased between 48% and 50% of 

premium LTE modem chips. See, e.g., Microsoft, 253 F.3d at 70 (foreclosure of 40% to 50% of 

relevant market substantial for Sherman Act purposes). 

D. Modem-chip markets reflect the consequences of Qualcomm’s 

anticompetitive conduct

 Market structure reflects the harmful impact of Qualcomm’s course of conduct. A 

number of Qualcomm’s former modem-chip competitors—including Broadcom, Texas 

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Instruments, Nvidia (Icera), Marvell, and ST-Ericsson—have shuttered their businesses, citing 

insufficient scale and inadequate margins. And Qualcomm’s remaining competitors operate at 

margins well below those needed to sustain a viable modem-chip business.

Though Qualcomm may posit “alternative” explanations for the difficulties faced by its 

rivals, Qualcomm’s arguments confuse cause and effect. As Professor Shapiro will explain, 

Qualcomm’s practices reduced rivals’ sales and margins, reduced their investment incentives, 

and reduced OEMs’ incentives to engage with rivals; Qualcomm’s practices thereby predictably 

tend to weaken rivals’ product features and overall competitiveness. Qualcomm therefore cannot 

point to its rivals’ financial difficulties or deficiencies in their product roadmaps as “alternative” 

causes of their market exits—these are precisely the effectsthat Qualcomm’s challenged conduct 

is calculated to achieve. 

V. INJUNCTIVE RELIEF IS WARRANTED

As the Court has explained, “[i]njunctive relief should be granted if ‘there exists some 

cognizable danger of recurrent violation.’” ECF 997 at 5 (quoting United States v. W.T. Grant 

Co., 345 U.S. 629, 633 (1953)). “In a case governed by the Federal Trade Commission Act . . . , 

‘an injunction will issue only if the wrongs are ongoing or likely to recur.’” Id. (quoting FTC v. 

Evans Prods. Co., 775 F.2d 1084, 1087 (9th Cir. 1985)). In addition, “regardless of whether any 

unlawful conduct is presently occurring, evidence of Qualcomm’s past conduct is sufficient to 

show whether any violations are ‘likely to recur.’ Id. at 7 (quoting Evans Prods. Co., 775 F.2d at 

1087); see also, e.g., CFTC v. Yu, No. 12-CV-3921-YGR, 2012 WL 3283430, at *4 (N.D. Cal. 

Aug. 10, 2012) (past unlawful conduct is “highly suggestive of the likelihood of future 

violations” (quoting CFTC v. Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979))). 

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Evidence at trial will show that Qualcomm’s conduct is ongoing. Despite law 

enforcement and regulatory scrutiny in several jurisdictions worldwide, including injunctive 

orders, Qualcomm maintains its policy of conditioning the sale of modem chips on entry and 

maintenance of a patent license, and continues to withhold licenses from modem-chip suppliers.

Qualcomm argues that the FTC cannot prove that it will have market power in the future. 

The proof that Qualcomm appears to demand is not required by law. Even so, evidence at trial 

will show that there is a cognizable danger that Qualcomm will have market power in the supply 

of 5G modem chips. In early 2018, Qualcomm publicly stated that it is “12-24 months ahead of 

our merchant competitors in the transition to 5G.” (CX8198.) 

OEMs are 

concerned that a new technology gap is forming that will, once again, put Qualcomm in a 

dominant position. 

In addition, equitable relief is required to redress the ongoing harmful effects of 

Qualcomm’s past conduct. 

A number of these agreements extend well into the future, some perpetually. Absent 

equitable relief, Qualcomm will continue to enjoy “the fruits of its statutory violation,” contrary 

to law. See Microsoft, 253 F.3d at 103 (an antitrust remedy must “terminate the illegal 

monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain 

no practices likely to result in monopolization in the future” (quoting United States v. United 

Shoe Mach. Corp., 391 U.S. 244, 250 (1968)) (internal quotation marks omitted)).

VI. CONCLUSION

Qualcomm is entitled to seek fair compensation for use of its intellectual property. It is 

also entitled to market-based returns, even premium returns, on sales of its modem chips when it 

wins those returns through competition on the merits. But maintaining a monopoly in relevant 

modem-chip markets through anticompetitive conduct is unlawful. Trial will establish that 

Qualcomm has engaged in unlawful conduct. A remedy that ends Qualcomm’s unfair methods of 

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competition and requires it to negotiate license terms with customers and competitors based on 

the strength of its patents is warranted.

Respectfully submitted,

Dated: December 28, 2018

 /s/ Jennifer Milici

Jennifer Milici

J. Alexander Ansaldo

Joseph R. Baker

Wesley G. Carson

Kent Cox

Elizabeth A. Gillen

Geoffrey M. Green

Nathaniel M. Hopkin

Mika Ikeda

Rajesh S. James

Philip J. Kehl

Daniel Matheson

Kenneth H. Merber

Aaron Ross

Connor Shively

Mark J. Woodward

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

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