Today's decision by the Mannheim Regional Court to stay a German Qualcomm v. Apple case because of the patent-in-suit being most likely being invalid is just the latest examples of Qualcomm's failing patent infringement lawsuits against Apple. But Qualcomm won't call it quits. Instead, it doubled down yesterday in a way that I struggled to believe when I saw it this morning: for a patent infringement case in San Diego (Southern District of California) in which Qualcomm stands very little to gain after the judge determined that any damage claims would be limited to a period starting in the spring of 2017, the United States' #1 female lawyer, former Stanford Law School dean and Quinn Emanuel Urquhart & Sullivan name partner Kathleen M. Sullivan, has just joined Qualcomm's team (click on the screenshot to enlarge; this post continues below the image):
In a high-stakes case over tens of billions of dollars, where the late "processing" charge alone accounts for more than $1.3 billion, you obviously would want to bring in the best--and only the best--in order to maximize your chances to win. But case no. 3-17-cv1375 in the Southern District of California never was a high-profile case, and by now it is, at first sight, just a nuisance lawsuit. There was the aforementioned ruling that limits the potential for damages, and there was a summary judgment that Apple doesn't infringe a patent from the same Qualcomm patent family as the one that gave rise to an agnostic injunction in Munich. Also, the way things have gone in the ITC case to which Qualcomm's 17cv1375 lawsuit was just a companion complaint for the purpose of seeking damages (which the ITC can't award) doesn't suggest there's much that can come out of it. The only patent that an ITC judge held infringed (only a preliminary finding that may or may not be overturned) has been worked around already by means of an iOS update.
Tiny damages in play; one patent thrown out; five (including the one I just mentioned) already failed in the ITC; and the only one that's still in play at the ITC has been worked around. The combination of those circumstances would normally make it highly counterintuitive that a litigant--Qualcomm in this case--would throw a huge amount of good money after bad. So why is Qualcomm doing this?
There are three potential explanations that I can come up with, and they aren't mutually exclusive:
Qualcomm will presumably appeal some or all unfavorable parts of the ITC decision to the Federal Circuit. Technically Qualcomm could already have done so with respect to the two patents that the Commission (the six-member decision-making body at the top of the U.S. trade agency) threw out by denying Qualcomm's petition for a review.
Mrs. Sullivan has been lead counsel of major companies in various other appeals of ITC decisions. Here, with the district court looking at some of the same issues, she may want to ensure that Qualcomm's arguments in one forum don't weaken its position in the other.
Should Mrs. Sullivan's job in the small-damages case in San Diego be about more than just ensuring consistency with the upcoming ITC appeal, then it could be that Qualcomm feels so much pressure to prevail over Apple that it affords such a high-profile attorney even if the potential short-term gains (damages) fall far short of making this a rational choice.
Qualcomm's offensive case will go to trial next Monday (March 4), and on July 15, Apple's offensive counterclaims (over various patents that Apple claims are infringed by Qualcomm) will go to trial. To be honest, I haven't analyzed the strength of Apple's offensive claims; too early for that. Therefore, I can't rule out that Qualcomm's apparently strong interest in the 17cv1375 case is, to whatever degree, due to fears of Apple possibly being more successful with its counterclaims than Qualcomm with its own claims.
Over the years I've heard a number of oral recordings of appellate arguments by Mrs. Sullivan. The most notable achievement in those cases was the Supreme Court ruling on design patent damages (while the ultimate outcome in Apple v. Samsung wasn't a whole lot better on remand, future defendants against design patents will be in a significantly stronger position, provided that they learn from that case). On Google's (technically, Motorola Mobility's) behalf she lost the FRAND appeal against Microsoft, but Google changed its stance on standard-essential patents (SEPs), so from today's perspective Google is probably happy how that case worked out.
I did, however, also notice two things that suggest to me she may just be taking on too many cases at times, with many QE clients presumably asking her to represent them. In one case (I believe it was an Apple v. Motorola ITC appeal), Orrick's Joshua Rosenkranz appeared to know the specifics of the case better. And in some Apple-Samsung appeal unrelated to design patents, another QE lawyer made her aware of having gotten carried away: she was talking about a somewhat similar issue in an unrelated case she was working on at the same time.
The further proceedings in the San Diego case, as well as the future ITC appeal, may shed some light on why Qualcomm would bring in a legal superstar for a case that appeared to be just a nuisance lawsuit.
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