FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES 

REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

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

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Jennifer Milici, D.C. Bar No. 987096

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

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

Rajesh James, N.Y. Bar No. 4209367

Daniel Matheson, D.C. Bar No. 502490

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

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 

RESPONSE TO BRIEF OF AMICUS 

CURIAE NOKIA TECHNOLOGIES 

REGARDING FTC’S MOTION FOR 

PARTIAL SUMMARY JUDGMENT

Date: October 18, 2018

Time: 1:30 p.m.

Courtroom: 8, 4th Floor

Judge: Hon. Lucy H. Koh

Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 1 of 4
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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES 

REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

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

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Amicus Nokia Technologies (“Nokia”) does not present any argument regarding the plain 

language of the two IPR policies that are the subject of the FTC’s motion for partial summary 

judgment. Nor does Nokia—which previously informed the European Commission that 

Qualcomm’s FRAND obligations required Qualcomm to license rival modem-chip suppliers1

—

present evidence that the industry has always believed the opposite to be true. Nokia does, 

however, make sweeping and unsubstantiated policy claims regarding the potential consequences

of construing the ATIS and TIA IPR policies according to their plain language. Nokia

misconstrues the FTC’s motion. The motion asks the Court to interpret the plain language of 

Qualcomm’s commitments under the IPR policies as written, pursuant to California contract law, 

not to determine what FRAND means in the abstract or to declare how SSOs ought to draft their 

IPR policies.

Nokia’s arguments miss the mark in other ways. Contrary to Nokia’s suggestion, the FTC 

does not contend that Qualcomm’s commitments to ATIS and TIA compel Qualcomm to license 

modem-chip rivals and to refrain from licensing handset manufacturers. Instead, these 

commitments require Qualcomm to “make licenses available” to modem-chip suppliers that 

request such licenses. (FTC Mot., ECF No. 792, at 1.) If Qualcomm’s anticompetitive conduct is 

addressed and remedied, market forces will decide whether modem-chip or handset-level

licensing (or some combination of the two) is most efficient.2

Nokia suggests that construing the ATIS and TIA IPR policies according to their plain 

meaning is unnecessary because “component manufacturers . . . have access to any SEPs they 

 

1 Reply Ex. 25, at 46 (Nokia Complaint Against Qualcomm Inc., Feb. 13, 2006) (representing to 

the European Commission that Qualcomm’s termination of Texas Instruments’ license “would 

breach Qualcomm’s duty to license on FRAND terms, after having induced SSOs to base the 

CDMA and UMTS/WCDMA standards on Qualcomm’s technology”); id. (describing 

Qualcomm’s commitments as “unequivocal” in this regard).

2 That said, Qualcomm has claimed that modem-chip-level licensing is efficient—at least when 

the licensee is Qualcomm itself. (Opp. at 10 n.3.) If Qualcomm’s efficiency claims are valid,

similar efficiencies may arise from other modem-chip suppliers licensing Qualcomm’s cellular 

SEPs on FRAND terms. 

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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES 

REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

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

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might require through the ‘have made’ rights granted to the sellers of . . . end user products.” 

(Nokia Br. at 8.) Nokia’s argument does not find support in the ATIS and TIA policies

themselves.

3 Moreover, the “long-standing practice” (id.) of a non-party that “primarily declares 

its patents through ETSI” (id. at 2) is not a reason for the Court to depart from the plain language 

of the ATIS and TIA policies.

Finally, according the ATIS and IPR policies their plain meaning would not create a 

“patchwork of confusing requirements” (id. at 9), even if one assumed that those policies differ 

from IPR policies adopted by other 3GPP or 3GPP2 organizational partners.4 SEP holders

choose the organizational partners to whom they make FRAND commitments,5 and those 

voluntary commitments are international, not regional, in scope.6 In any event, Nokia’s argument 

has no bearing on the proper interpretation of FRAND commitments that Qualcomm has already 

made through ATIS and TIA.

For the reasons stated above, Nokia’s arguments should be rejected and the FTC’s motion 

granted.

 

3 Even the ETSI IPR policy, on which Nokia generally relies, provides a licensed handset 

manufacturer the right to “have made customized components . . . to the licensee’s own design,” 

Nokia Br. at 3–4 (emphasis added), but does not protect unlicensed suppliers that develop 

modem chips of their own design. Cf. Intel Corp. v. Broadcom Corp., 173 F. Supp. 2d 201, 233 

(D. Del. 2001).

4 The FTC does not concede that construing the ATIS and TIA policies according to their plain 

language would create any inconsistency among relevant IPR policies. While not the subject of 

the FTC’s motion, the ETSI IPR policy also requires Qualcomm to make licenses available to 

modem-chip competitors—as Nokia itself has asserted in the past. (FTC Mot. at 2 n.5; FTC 

Reply at 13 n.35 & 15 n.42.)

5 See, e.g., Nokia Br. at 2 (“Nokia primarily declares its patents through ETSI”).

6 Mot. Ex. 29 (Letter from Thomas Rouse, Qualcomm, to Thomas Goode, ATIS General 

Counsel, July 23, 2012 (committing to license patents granted not only in the United States, but 

also in a host of other countries)).

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FTC’S RESPONSE TO BRIEF OF AMICUS CURIAE NOKIA TECHNOLOGIES 

REGARDING FTC’S MOTION FOR PARTIAL SUMMARY JUDGMENT 

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

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Respectfully submitted,

Dated: October 11, 2018 /s/ Jennifer Milici

JENNIFER MILICI

JOSEPH R. BAKER

GEOFFREY M. GREEN

RAJESH JAMES

DANIEL MATHESON

KENNETH H. MERBER

MARK J. WOODWARD

Attorneys for Plaintiff Federal Trade 

Commission

Case 5:17-cv-00220-LHK Document 897-1 Filed 10/11/18 Page 4 of 4