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MOTION FOR LEAVE TO FILE AMICUS BRIEF

CASE NO. 5:17-cv-00220-LHK 

Amanda Tessar (pro hac vice pending) 

ATessar@perkinscoie.com 

PERKINS COIE LLP 

1900 Sixteenth Street, Suite 1400 

Denver, CO 80202-5255 

Telephone: 303.291.2357 

Facsimile: 303.291.2457 

Sarah E. Stahnke, California Bar #264838 

SStahnke@perkinscoie.com 

PERKINS COIE LLP

3150 Porter Drive 

Palo Alto, CA 94304-1212 

Telephone: 650.838.4489 

Facsimile: 650.838.4350 

ATTORNEYS FOR AMICI CURIAE

ACT | THE APP ASSOCIATION AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION

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

NOTICE OF MOTION AND MOTION OF 

ACT | THE APP ASSOCIATION AND 

COMPUTER & COMMUNICATIONS 

INDUSTRY ASSOCIATION FOR LEAVE 

TO FILE AN AMICI CURIAE BRIEF IN 

SUPPORT OF THE FEDERAL TRADE 

COMMISSION’S MOTION FOR PARTIAL 

SUMMARY JUDGMENT 

Date: February 21, 2019 

Time: 1:30 PM 

Place: San Jose Courthouse, Courtroom 8 

Judge: Hon. Lucy Koh 

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-2- MOTION FOR LEAVE TO FILE AMICUS BRIEF 

CASE NO. 5:17-cv-00220-LHK 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE THAT ACT | The App Association (“ACT”) and Computer & 

Communications Industry Association (“CCIA”) (collectively, “Amici”) hereby move the court for 

leave to submit an amici curiae brief in support of the Federal Trade Commission’s (“FTC’s”) 

Motion for Partial Summary Judgment (filed August 30, 2018) (ECF Docket Entry 792). This 

motion will be heard on February 21, 2019 at 1:30 pm, or as otherwise set by the Court. Amici 

would appreciate the opportunity to explain how the Court’s resolution of the issues raised by the 

FTC’s Motion may impact technological innovators. Notably, this Court has previously granted 

Amici leave to participate in the context of related issues (see D.I. 96 (Order Granting ACT leave 

to file amicus curiae brief regarding Defendant’s Motion to Dismiss); D.I. 112 (ACT’s amicus

brief). 

By this motion, Amici request leave to submit an amici curiae brief. The proposed brief is 

attached. This brief and the accompanying amici brief are submitted on behalf of ACT and CCIA 

themselves; none of ACT’s or CCIA’s member or sponsors authored these briefs in whole or in 

part, nor did any member or sponsor make a monetary contribution to ACT or CCIA intended to 

fund the preparation of these briefs. 

While Amici have noticed this Motion for Leave, Amici submit that this motion may be 

suitable for resolution without a hearing. Furthermore, the FTC’s Motion for Partial Summary 

Judgement will likely be resolved before the Court’s first available hearing date for this motion (in 

February of 2019), further suggesting that this motion should be resolved on the papers. 

I. STANDARD FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE

“[A] district court has broad discretion to appoint amici curiae.” Hoptowit v. Ray, 682 F.2d 

1237, 1260 (9th Cir. 1982) (overruled on other grounds). “‘There are no strict prerequisites that 

must be established prior to qualifying for amicus status; an individual seeking to appear as amicus

must merely make a showing that his participation is useful to or otherwise desirable to the court.’” 

Infineon Techs. N. Am. Corp. v. Mosaid Techs., Inc., No. C 02-5772 JF(RS), 2006 WL 3050849, at 

*3 (N.D. Cal. Oct. 23, 2006) (citations and internal quotation marks omitted). “An amicus brief 

should normally be allowed” when, among other considerations, “the amicus has unique 

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-3- MOTION FOR LEAVE TO FILE AMICUS BRIEF 

CASE NO. 5:17-cv-00220-LHK 

information or perspective that can help the court beyond the help that the lawyers for the parties 

are able to provide.” Cmty. Ass’n for Restoration of the Env’t (CARE) v. DeRuyter Bros. Dairy, 54 

F. Supp. 2d 974, 975 (E.D. Wash. 1999) (citation omitted). “District courts frequently welcome 

amicus briefs from non-parties concerning legal issues that have potential ramifications beyond the 

parties directly involved[.]” Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc., 272 

F. Supp. 2d 919, 925 (N.D. Cal. 2003). 

As explained below and in Amici’s brief, the obligation to license technology on fair, 

reasonable, and non-discriminatory (“FRAND”) terms implicates important industry and public 

interests that will affect Amici’s members and customers. If companies were allowed to 

discriminate against their competitors, industry and consumer interest in adapting existing 

technologies and developing new technologies would be harmed, and the businesses that rely on 

an efficient, fair, and balanced approach to licensing of communication standards will be stunted. 

II. STATEMENT OF IDENTITY AND INTEREST OF AMICI CURIAE

ACT (formerly known as the Association for Competitive Technology) is an international 

grassroots advocacy and education organization representing more than 5,000 small and mid-size 

app (i.e., application) developers and information technology firms. It is the only organization 

focused on the needs of small business innovators from around the world. ACT advocates for an 

environment that inspires and rewards innovation while providing resources to help its members 

leverage their intellectual assets to raise capital, create jobs, and continue innovating. 

Computer & Communications Industry Association (“CCIA”) is an international nonprofit 

association representing a broad cross-section of computer, communications, and Internet 

industry firms that collectively employ nearly one million workers and generate annual revenues 

in excess of $540 billion. CCIA believes that open and competitive markets foster innovation. 

CCIA’s members contribute to technical standards and create innovative products that utilize 

those standards. CCIA believes that technical standards best foster innovation when standardessential patent licensing is conducted in a fair and well-understood manner compliant with the 

terms of the patent policy selected by the standard-setting organization. Further information 

about CCIA, including a list of its members, is available at http://www.ccianet.org. 

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-4- MOTION FOR LEAVE TO FILE AMICUS BRIEF 

CASE NO. 5:17-cv-00220-LHK 

ACT and CCIA have been monitoring recent developments in this case because of the 

significant implications of the issues in this case for the interests of their members. In light of the 

critical role that technological innovation plays in enhancing competition and improving the 

welfare of consumers, Amici have a special interest in ensuring that federal law is properly applied 

to dynamic industries and innovative technologies. 

Both ACT and CCIA have participated as amicus curiae in a number of cases involving 

technological innovation. See, e.g., Ohio v. Am. Express Co., 138 S. Ct. 2274 (2018) (CCIA); TC 

Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017) (ACT and CCIA); 

Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429 (2016) (ACT and CCIA); Apple, Inc. v. United 

States, 136 S. Ct. 1376 (2016) (ACT); Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 

(2014) (ACT and CCIA); Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) 

(ACT). In addition, as mentioned above, ACT previously filed an amicus brief in this case. See 

Amicus Curiae Brief in Support of the FTC’s Opposition to Qualcomm’s Motion to Dismiss (filed 

May 25, 2017) (D.I. 112). 

III. AMICI CURIAE CAN PROVIDE A UNIQUE PERSPECTIVE 

Based on their strong interests in fostering innovation and protecting the interests of 

developers and technology firms, Amici believe that their perspective will aid this Court in 

evaluating the motion filed by the FTC. The FTC’s motion asks this Court to hold that Qualcomm’s 

promise to make licenses to standard-essential patents to applicants on FRAND terms require it to 

make licenses available to direct competitors on those terms. If an obligation to license standardessential patents on FRAND terms did not apply to direct competitors, the detrimental effects of 

these actions will be felt by technology companies who rely on communications standards—and 

especially by small businesses lacking appropriate resources with which to defend themselves. 

ACT and CCIA have substantial knowledge and a unique perspective on these implications and 

submit that their participation as amici is likely to assist the Court in assessing the “potential 

ramifications beyond the parties directly involved.” Sonoma Falls Developers, 272 F. Supp. 2d at 

925. In particular, ACT and CCIA are well positioned to highlight the potentially dramatic impact 

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-5- MOTION FOR LEAVE TO FILE AMICUS BRIEF 

CASE NO. 5:17-cv-00220-LHK 

the FRAND obligation may have for software developers and technology companies across a 

number of critical industries. 

IV. CONCLUSION 

Accordingly, ACT and CIAA respectfully request that the Court grant this motion for leave 

to file the accompanying brief in support of the FTC’s Motion for Partial Summary Judgment. 

Amici bring this motion after conferring with the parties’ counsel. Counsel for the FTC 

indicated that they have no opposition to ACT's motion for leave to file. Counsel for Qualcomm 

indicated that they oppose this motion. 

DATED: September 17, 2018 PERKINS COIE LLP 

By: /s/ Sarah E. Stahnke

Sarah E. Stahnke 

ATTORNEYS FOR AMICI CURIAE ACT | THE 

APP ASSOCIATION AND COMPUTER &

COMMUNICATIONS INDUSTRY ASSOCIATION

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