FTC v. Qualcomm: New Frontiers in the Antitrust-IP Interface
Forthcoming, Regulatory Review.
4 Pages Posted: 13 Jun 2019
Date Written: May 31, 2019
The Federal Trade Commission recently scored a substantial victory in its antitrust suit against Qualcomm. The case represents a novel confluence of standard-setting and IP licensing issues with bedrock antitrust subjects: tying and exclusive dealing. It also takes a surprising turn in resuscitating the long-dormant doctrine of the antitrust “duty to deal.” In this short essay, I review and evaluate the court’s decision in FTC v. Qualcomm. The analysis of Qualcomm’s exclusive dealing is sound and very likely correct. However, the court’s duty-to-deal analysis sits on shakier ground, omitting consideration of potential immunity under the Patent Act and sidestepping thorny questions on the appropriate source of law.
Keywords: Antitrust, FRAND, patent, licensing, exclusive dealing, tying, loyalty discounting
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