While I routinely talk to professional investors about key IP and antitrust developments (such as on a highly successful conference call hosted by Susquehanna International Group last week), I haven't spoken at, much less organized, conferences in a long time. But Judge Lucy H. Koh's FTC v. Qualcomm antitrust ruling in the Northern District of California is--while this kind of clear-cut guidance was overdue in my view--a watershed moment for patent licensing practices and damages theories. By virtue of having followed FRAND licensing issues since 2010 and FTC v. Qualcomm from the get-go (including that I attended the entire January trial) it's fair to say that I'm uniquely positioned to discuss the impact, implications and ramifications of the decision as well as related matters, such as certain antitrust complaints Daimler and its suppliers lodged with the European Commission and a Continental complaint against the Avanci patent pool company in the Northern District of California.
Judge Koh's ruling is now being appealed. The notice of appeal was filed on Friday, and a motion to stay enforcement is pending as well. But even if Qualcomm obtained some kind of enforcement stay, there will be important developments in various jurisdictions, and Judge Koh, arguably the world's leading technology judge by now, has the potential for thought leadership not only in other U.S. federal districts and circuits, but even overseas.
Component-level patent licensing is a hot topic particularly (though not exclusively) for the automotive industry, which sees itself increasingly exposed to demand letters and lawsuits.
At a one-day conference in Northern California (for U.S. and Asian attendees) and another one in the Munich area (for a European audience), I am going to discuss the following aspects and implications of the chipset-level licensing and royalty-base parts of Judge Koh's opus magnum:
The FTC v. Qualcomm ruling, the underlying testimony, and the parties' arguments
Outlook: next procedural steps; prospects of affirmance, reversal, certiorari, or settlement
Comparison to other U.S. case law (Microsoft v. Motorola, GPNE Corp v. Apple, HTC v. Ericsson); Entire Market Value Rule and smallest salable patent-practicing unit (SSPPU); influence of FTC v. Qualcomm on other U.S. decisions
Patent exhaustion and its attempted circumvention (covenants not to sue, covenants to exhaust remedies)
Chipset licensing and standard-setting organizations' FRAND licensing guidelines
Automotive antitrust complaints (Continental v. Avanci, DG COMP complaints by Daimler, Bury et al.)
Potential for adoption of Judge Koh's reasoning in Europe under Art. 102 TFEU
Is legislative action warranted/desirable or can case law solve the problem?
Panel discussion (ideally, a neutral moderator and two speakers from each side of the debate)
It's no secret that I've taken pretty clear positions on the issues. However, that never prevents me from accurately summarizing what the other side claims and argues, as my Wall Street clients and listeners know.
I thought about possibly partnering with law firms on this, but frankly, I can't think of a firm that wouldn't also represent at least some clients seeking to maximize their patent licensing revenues, so I felt it would be better for me to stay independent. However, I would entertain sponsorships, provided they can be properly disclosed and don't constitute a conflict of interests affecting what I will say at the conferences, much less what I write on this blog (not an issue if an organization's views on component-level patent licensing are consistent with mine).
At this point there are no definitive conference dates, but I do plan to turn this around rather quickly. I'll be very receptive to what you have to say, and it would really help to know how many of you are interested in attending at a market-level attendance fee (and in which of the two locations). So please drop me an email at fosspatents@gmail.com if these conferences are potentially relevant to your work. Thanks in advance!
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