> There is pretty much no way that Qualcomm could ever get an injunction to stop sales of iPhones... Qualcomm is planning to ask the federal government to ban imports of iPhones. This is the technology equivalent of a Hail Mary pass. It was unclear from the article why this is a Hail Mary, so I looked it up. It initially seemed to me that if Qualcomm offers Apple a licensing agreement, Apple agrees to it, and later d…
First, this Bloomberg article is somewhat misleading. IEEE and their recent policy statement on SSPUS has very little to do with what's at dispute here. ETSI regulates most wireless 3G, LTE patents and ETSI doesn't want to dictate how licensees and licensors come to FRAND rates or what they ought to be. IEEE is the first and the only one so far to have clarified their stance on SEP licensing, but most SSO, standard setting organization, don't want to meddle with licensing practices because they don't want to cross path with regulators (ie, anti-trust/competitive) or discourage potential contributing members from declaring their patents SEP.
Second, Apple has never directly licensed Qualcomm's patents. Apple's contract manufacturer Foxconn has long been a legit licensee of Qualcomm wireless patents (even before Apple iPhone was released back in 2007) and pays royalty based on their manufacturing cost, not on the retail price ($600 or more). Apple pays nowhere close to what many people believe they are paying.
Third, Apple technically breached the contract with Qualcomm by cooperating with KTC, Korean Fair Trade Commission, last year. Qualcomm essentially had a gag order on their contract forbidding their licensees from speaking out. While this is not uncommon -- Apple is notorious for doing the same to their suppliers (eg, GT Advanced?) and is much worse in many respects -- there are clearly some elements in Qualcomm's licensing practices that are quite troubling as well.
Forth, SCOTUS's recent eBay's decision doesn't too much bearing on Qualcomm's ITC case. While SCOTUS opinions' are the supreme laws of the land, USITC is a quasi judicial agency that operates on different level. Their decision doesn't set legal precedence. They are not in the business of calculating damages, or determining royalty rates or basis -- their only power is to issue ITC import ban when infringement or breach of contract is found. Companies do prefer USITC because ITC cases move a lot faster and ITC is not encumbered by the same high standards that lower courts must consider.