Monday, 12 October 2020

Right-pricing cellular patent licensing in 4G and 5G connected vehicles

Bountiful connectivity apps in vehicles

While litigation is bogging down the licensing of cellular standard essential patents (SEPs) in vehicles with disputes about where in the production supply chain licensing may or must occur—from chip, to module, to telematic control unit (TCU), to entire vehicle—this is also delaying payment of Fair, Reasonable and Non-Discriminatory (FRAND) royalty charges in these cases and causing confusion about licensing value. This is a pity because clarity is in everyone’s urgent interest.

Well-established mobile phone licensing benchmarks conservatively imply a total value of at least around $30 per vehicle for patents essential to the 2G, 3G and 4G standards.

Great expectations for IoT hinge on cellular technology

There is strong consensus and enthusiasm in government, business and among commentators about the Internet of Things, with its multi-trillion dollar market potential. While financial and other benefits will be reaped by many vendors and users in various different industries, as well as by consumers, several generations of patented technologies developed largely by companies within the telecommunications industry over many years—up to and including newly introduced 5G—are enabling this major opportunity.

Despite cellular technologies being developed by and hitherto implemented largely among a relatively limited group of telecommunications industry OEMs producing cellular products—most significantly mobile phones as well as mobile network equipment—the variety and numbers of prospective technology implementers in IoT are far greater. While SEP licensing is well established for mobile phones and base stations—with thousands of agreements since the 1990s worth many billions of dollars every year—the industry is still in the throes of establishing the basis and pricing for use of these technologies in various different IoT applications including cars, domestic appliances, industrial robots and remote meters.

This article conservatively estimates total FRAND charges for licensing all cellular SEPs in vehicles, based on value derived therefrom and reflecting some recent court judgements on FRAND charges in other devices including smartphones. 

How to charge?

Since the early days of the 2G mobile phone industry, SEP owners most often licensed their cellular patents at royalty rates calculated as a percentage of phones’ average wholesale (i.e. unsubsidized) selling prices. One reason for this is that OEMs anticipated the subsequent downward trend in mobile phone prices, which fell dramatically following the introduction of digital cellular with 2G in the early 1990s. OEMs did not want to be locked into fixed dollar-per-unit (“DPU”) royalty charges that would increase in percentage terms as manufacturing costs were rapidly declining.

While royalties for 2G/3G/4G cellular connectivity in a mobile phone have usually continued to be charged as a percentage of the end-product selling price, the value established there—when stated as an equivalent DPU figure—is a key consideration. As average mobile phone prices increased with the widespread adoption of 3G smartphones from the late 2000s and 4G smartphones several years later, SEP licensors have, in many cases, at the behest of OEMs, “capped” percentage-based royalties to maximum DPU figures to ensure royalties paid do not exceed the value of additional features deemed less dependent on cellular connectivity. 

Similarly, DPU pricing is also applicable for other cellular-enabled “devices” including, for example, PCs and connected vehicles. There are also bountiful ways in which connectivity is exploited in these with various applications. However, a vehicle OEM, for example, would quite reasonably refuse to pay royalties for cellular SEPs that are calculated as a percentage of a vehicle’s cost or value in alloy wheels or leather seats. 

I have argued for many years against the proffered valuation methodology of basing royalties on a percentage of the sales price of a component or “smallest-saleable patent practicing unit (SSPPU)” and this approach has been soundly rejected by US and European courts.  The US Ninth Circuit Court of Appeals has ruled in Federal Trade Commission v. Qualcomm that “the district court’s analysis [relying on an SSPPU approach]is still fundamentally flawed. No court has held that the SSPPU concept is a per se rule for “reasonable royalty” calculations . . . .” Similarly, in Germany in Nokia v Daimler, the Mannheim court stated that the “royalty provided in [Daimler’s] counter-offer is not reasonable, as the reference value used in the top-down approach in the form of the average purchase price of [TCUs] is unsuitable. This reference value prevents [Nokia] from participating adequately . . . in use of the technology in the saleable end product.” (Unofficial translation.)

I am not commenting here on how aggregate royalties can or should be apportioned among SEP owners. Elsewhere, I have commented on the inaccuracies and other shortcoming in apportioning royalties based on the counts of declared-essential or judged-essential patents

Where to license?

While I and many others have also long argued it is also rather simpler and more efficient to license at the entire device level—as has always been the case in mobile phones—the Court of Appeals additionally ruled in the above that it is the patent licensor’s prerogative to license where it wishes. 

As discussed below, the value of cellular functionality to a connected vehicle is at least around $30 per unit, regardless of where licensing occurs in the production supply chain, and irrespective of the different formulae that could be used to calculate that figure with licensing at different stages in that supply chain. 

Valuation benchmarks

While there has never been consensus in the telecommunications industry that aggregate royalties for SEPs should be capped—with significant dissent by various licensors including Qualcomm—maximum aggregate figures proposed by some leading companies that declare many patents essential to cellular standards—when correctly interpreted and applied—provide at least some conservative valuation benchmarks. Court determinations of FRAND royalty rates for individual licensors—also as percentages of unsubsidized wholesale handset prices—in a few different cases have been based upon or cross-checked using such aggregate figures:

However, adjustments to the above are warranted because some source figures have been misinterpreted and incorrectly applied or alternative figures could have been reasonably selected as aggregate royalties in determining FRAND rates for the parties’ portfolios. 

Prior to Judge Selna’s judgement being entirely vacated on appeal, I showed he had muddled single-mode and multi-mode licensing rates in pages 5 to 7 of my critique of his “top-down” SEP royalty rate valuation analysis. As LTE was being first standardized in 2008, patent owner announcements from April that year proposed individual and aggregate single-mode LTE royalty rates. This was for like-for-like comparisons with claims of ”less onerous” licensing for rival 4G technology WiMAX at “much lower” rates and with patent pooling at a “predictable cost”. Only a couple of companies also mentioned their proposed multi-mode rates. It is only since then that Apple’s iPhones and Android-based smartphones have been multi-mode devices needing licensing of more than one generation of technology. The first of these smartphones, including even 3G, was not introduced until the second half of 2008. The aggregate rates Judge Selna used in deriving an aggregate FRAND rate of 6% to 8% (his judgement also cites a figure “not higher than 10%”), reflected only the value in LTE and not that in 2G and 3G. The correct figure for LTE handsets (i.e. multimode devices) with his methodology should, therefore, have been 11% to 15%, including an additional 5% for 3G, and conceivably more for the inclusion of 2G. 

Justice Birss also uses the “total royalty burden” in his FRAND rate determinations. He indicates, for a 4G multimode handset, “the aggregate implied by either party’s case (Huawei’s 13.3% and Unwired Planet’s 10.4%).” The average of these two figures is 11.9%. 

According to Strategy Analytics, the global wholesale average selling prices for LTE handsets (i.e. overwhelmingly multi-mode including 2G, 3G and 4G standards) were $270 in both 2018 and 2019. That equates to $29.70 to $40.50 per handset at multi-mode royalty rates of 11% and 15%, respectively.

While cellular SEP licensing revenues for Ericsson, InterDigital, Nokia and Qualcomm alone amount to many billions of dollars per year, that is overwhelmingly from mobile phone licensing with revenues understating value in cross licensing among these and other companies. For example, as Ericsson and Nokia used to have large handset device operations and still have major cellular network equipment businesses, licensing fees paid in cash among those and many other cellular industry companies significantly reflect netting off rather higher nominal charges. Major implementers—including Apple, Huawei, LG and Samsung with substantial market shares of device sales in recent years—tend to generate little or nothing in cash royalties for SEP licensing while they seek to minimize license fee outpayments through cross licensing. 

Licensing fees paid also understate value because many OEMs have remained unlicensed due to free-riding with patent “hold-out” and because some OEMs do not have licensing programs but own patents for defensive purposes. 

SEP value in vehicles versus smartphones

The value of SEP technology to vehicles is provided in various ways and applications to manufacturers, consumers and vehicle fleet operators. In some respects, this value exceeds the value that the same technology confers on a smartphones. As well as enabling in-vehicle information and entertainment systems, cellular technology:

  • Connects all of a car’s occupants concurrently, while smartphones tend to be used by only one person;
  • Enables remote vehicle diagnostics for maintenance, asset management tracking and route management in trucks; 
  • Improves vehicle safety with C-V2X, for example, with collision avoidance alerts introduced in 4G: thus saving lives by reducing the numbers of millions dying and many more suffering from serious accidents on the roads worldwide each year; and
  • Can continuously connect various third parties, including the vehicle OEM, insurance providers and fleet management service providers.

The value derived from the one-off licensing charges is also elevated in connected vehicles because these have longer working lives than smartphones.  Cars, for example, typically have 14-year lifespans before scrappageversus seven years for mobile phones, while users in developed countries replace their phones about every 18 months.

The DPU value of cellular SEPs in vehicles is, therefore, at least comparable to that in smartphones.

Even more than a big smartphone on wheels
While there will continue to be a large proportion of costs and value in vehicles that has nothing to do with cellular capabilities, the proportion of that in information and communications technologies—significantly including cellular connectivity—is large and growing rapidly. As defined by industry analyst Markets and Markets, the global connected car market is expected to be worth $54 billion in 2020 and is projected to reach $166 billion by 2025—a compound annual growth rate of 25%. With sales of around 70 million light vehicles per yearthat amounts to $600 per vehicle in 2020 rising to $2,400 per vehicle in 2025. It believes the connected truck market is also worth tens of billions of dollars per year. In addition, Markets and Markets circumscribes a separate global in-vehicle infotainment market which it projects to grow from $24.3 billion in 2019 to $54.8 billion by 2027—a compound annual growth rate of 10.7%.  Research shows that car manufacturers charge consumers from several hundred dollars to many thousands of dollars for connected car application “packages.”


In consideration of all the above and the “maximum aggregate rates” relied upon by the judges, as discussed above, an aggregate SEP value of $30 to $40 per smartphones is also reasonably applicable per connected vehicle for multimode 2G/3G/4G licensing. While DPU royalties are explicitly not derived as a percentage of a vehicle’s cost or price, it is notably that the above figures correspond to less than 0.1 % of 
average selling prices for cars—at $37,800 in the US and $27,400 globally— two orders of magnitude higher than for LTE smartphones at $270 over the last couple of years. 

The future in 5G

As indicated above, the connected car market is expected to quadruple in size over the next five years, with additional growth in adjacent markets that are also dependent on cellular connectivity. As well as buoying average prices and stimulating new vehicle sales volumes, connected vehicle capabilities in cars and trucks—with Markets and Markets’ market definition, or with my broader market definition—will inevitably provide among the best opportunities for vehicle OEMs to differentiate their products and bolster profit margins. For example, capabilities including C-V2X are being enhanced in 5G over what is possible in 4G, with improvements such as enhanced positioning to enable increasingly autonomous and even self-driving vehicles. While market definitions include the cost or price of tech hardware and software, utility and value to consumers will grow as autonomous capabilities—provided by C-V2X, sensors and AI—save lives while relieving occupants from driving and enabling them to work, relax or sleep. 

While cost and value to manufacturers and consumers in connected vehicles is almost entirely still in 2G, 3G and 4G today, this will increasingly be in 5G with it expecting to dominate the flow of gross additional cellular connections (a leading indicator) and account for 31 percent of all established connections worldwide by 2025. That justifies significant additional royalties for 5G in vehicles, as some cellular SEP owners are already obtaining through the licensing of 5G smartphones and other devices.

One-stop-shopping is best in IoT

While bilateral licensing is possible in IoT including connected vehicles—as it is in mobile phones—the reduced transaction costs and other benefits inherent in platform-based licensing or patent pooling is highly attractive to both licensors and licensees in IoT, as I wrote in my previous article here very recently. While all the major cellular SEP owners have preferred to license bilaterally to the relatively small number of handset OEMs, most prefer now to license these SEPs into the numerous different vertical sectors in IoT through a platform or pool. For example, while there are differences in analysis and opinion about exactly what proportion of cellular SEPs Avanci represents, there is broad agreement that it, with its 39 licensors, has most of them. Avanci licenses all its 3G and 4G SEPs for $15 per connected vehicle—the price of a car wash—regardless of how many TCUs, modules or modem chips the vehicle contains.

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A similar article to this was originally published in RCR Wireless.

Keith Mallinson is a leading industry analyst, commercial consultant and testifying expert witness. Solving business problems in wireless and mobile communications, he founded consulting firm WiseHarbor in 2007.


Friday, 2 October 2020

One-stop-shopping with segmented offerings is most appealing for SEP licensing in IoT including 5G

In various industries including pharmaceuticals, where a product is typically protected by only a few patents, if intellectual property is licensed at all, licensing tends to be atomized: company-by company for individual patents or small portfolios, and nation-by-nation rather than globally in many cases.

In marked contrast, patent pooling is increasingly attractive for licensing cellular technologies with emerging IoT including 5G because it can provide greater transparency, predictability, and various efficiencies such as lower transaction costs at scale in standard-essential patent (SEP) licensing with multiple dimensions and complexities including:
  • Scores of patent jurisdictions, but with a handful of these most significant by far;¹
  • Hundreds of patent owners, while most SEPs are owned by a very small proportion of these;²
  • Thousands of implementers, with the vast majority of these in IoT outside of the cellular industry vertical;³ and
  • Hundreds of thousands of patents declared essential to the cellular standards, while large proportions of these are not actually essential.⁴

No more than a dozen or so patent owners have significantly or profitably operated their own licensing programs to monetize SEPs in cellular,⁵ and even fewer have in other technologies such as video codecs where patent pooling has predominated for many years.⁶

While the number of jurisdictions and patent owners has not increased substantially for cellular SEPs in recent years, the number of prospective implementers is increasing enormously, as is the number of SEPs. Patent pooling enables those new implementers to be most effectively licensed by all SEP owners.

One size does not fit all implementers


Whereas cellular technologies were once all implemented by a relatively small number of OEMs and in only a few different types of device, including cellphones and PCs, in IoT there are a very wide and expanding array of applications from sensors and humble products such as meters to very complex and costly apparatus such as self-driving cars, surgical instruments and industrial equipment. Market verticals are also numerous including manufacturing, mining, agriculture, smart grids, smart cities and smart homes. Licensing across all this diversity requires wide distribution and range in licensing packages, segmented to suit different implementations, including various licensing price points reflecting the significantly different values derived from the SEPs by implementers and their customers in some applications versus others. 

Benefits for all licensors


The inherently larger scale in patent pooling than in bilateral licensing makes this all more cost effective for both licensors and licensees in IoT.

Some major cellular SEP owners— including Ericsson, InterDigital, Nokia and Qualcomm—significantly monetize their patents by licensing cellular device OEMs directly. Others who are also major device implementers—including Huawei, LG and Samsung—significantly reduce or eliminate their device licensing costs through cross-licensing, also directly, with other cellular device OEMs. Many more cellular SEP owners have too few SEPs to profitably support their own cash-royalty generating licensing programs. Instead, while some license their video-codec SEPs through patent pooling, others’ cellular SEPs have largely remained dormant, for “defensive” purposes.

For decades now, cellular patent pools—including those for 3G, administered by Via Licensing and SISVEL subsidiary 3G Licensing SA, and for 4G, administered by SISVEL and Via Licensingall failed to make any significant impact versus bilateral licensing, and, as I predicted in 2010, had no prospect of doing so.

However, the outlook for patent pooling in cellular technologies improved dramatically when Avanci entered the market in 2016 with its 2G/3G/4G licensing platform focused exclusively on IoT, with licensing and charges based on end-devices and the SEP value conferred to them. While none of the major cellular SEP owners—including all the companies named above—joined any pools that were seeking to license all types of device including mobile phones, all four of those significant SEP monetizers named above agreed to pool their cellular SEPs for IoT licensing through Avanci along with 35 other licensors. While various assessors disagreed about the relative positions of individual SEP owners, they broadly agreed that those four companies collectively accounted for most SEPs.

Patent pooling enables those companies with existing programs also to reach a far larger range of licensees than previously with their own licensing programs, and, for SEP owners without licensing programs, it enables them to be able to monetize their patents at all. The smaller licensors particularly benefit from various economies of scale and cost efficiencies, including distribution (i.e. in licensing “sales” and marketing), in operations and administration because they have lower licensing revenue potential. For example, assessing patent essentiality and relative value among SEP owners is expensive and can be contentious. Costly litigation is more likely required to ensure payment of royalties outside of pooling arrangements.

Removing roadblocks to efficient licensing


Pooling is logical, efficient, beneficial to SEP owners and implementers, and widely favored in some instances (i.e. for video codecs generally and for cellular in IoT). A recent business review letter (BRL) on the matter of Avanci’s proposed new 5G licensing platform for IoT, from the U.S. Department of Justice’s Antitrust Division, notes that the Department had ‘long recognized that patent pools can “provide procompetitive benefits by integrating complementary technologies, reducing transaction costs, clearing blocking positions, and avoiding costly infringement litigation.”’

Nevertheless, there remain impediments to SEP licensing in general that threaten to prevent patent owners reaping their just rewards and that impair potential advantages in patent pooling. While the following contentions are not all fully resolved to final appeal in all major jurisdictions, obstructions to well-established licensing and valuation methods are being removed and some trends that are hostile to SEP owners are reversing:
  • End-device licensing. While SEP technologies are significantly implemented in baseband modem chips, patented cellular capabilities reach extensively beyond these components into modules and across entire devices. By licensing at the end-device level, all patents can be included in a single agreement. Nevertheless, there is significant dispute between many licensors who insist on licensing end-devices and some implementers who want to license at the chip or module level. Challenges to well-established and extensive end-product licensing practices have been made under antitrust laws, as well as in contract and patent laws. In FTC v. Qualcomm, the US Ninth Circuit Court of Appeals has recently rejected all antitrust-based claims including exclusive dealing: “Qualcomm is under no antitrust duty to license rival chip suppliers.” The aforementioned BRL also recognizes considerable efficiencies in licensing vehicles and notes that the Department of Justice’s Antitrust Guidelines state that field-of-use restrictions, such as licensing at the end-product level, can be procompetitive.⁷
  • End-device-based royalty rate determination. Relatedly to the above, there has also been significant litigation to undermine the well-established and predominant method of basing royalty charges on the value in end products, and, instead, determine royalties based on the, so-called, smallest-saleable patent practicing unit. However, the Ninth Circuit Court of Appeals has also ruled in FTC v. Qualcomm that that there is no obligation for patent owners to calculate royalties on that alternative basis, even if a chip can be deemed to be the SSPPU in any implementation. ‘No court has held that the SSPPU concept is a per se rule for “reasonable royalty” calculations; instead, the concept is used as a tool in jury cases to minimize potential jury confusion when the jury is weighing complex expert testimony about patent damages.’ No jury was ever involved in FTC v. Qualcomm litigation, nor is one ever involved in determining royalties in normal business operations outside of court. The German Mannheim court in Nokia v Daimler has found that Nokia’s [end-product-based] automotive licensing offer was fair, but that neither Daimler nor its supplier Continental “were seriously willing or prepared to conclude a license agreement with the applicant on [fair and reasonable] terms.” The Department of Justice also notes in its BRL of Avanci’s proposed 5G IoT licensing program that there are a variety of ways to value the patented technology and stated that it believes parties should be given flexibility to license in a manner that best rewards and encourages innovation.⁸
    The value delivered by these cellular SEP technologies substantially exceeds chip implementer design and fabrication costs in many cases. Licensing at the chip level, and calculating royalties on this basis would tend to drive royalties down to values in the most basic implementations (e.g. a “connected” lightbulb) and undervalue patents in high value end-devices (e.g. connected cars with cellular V2X capabilities). The result would be economically inefficient and dysfunctional with reduced incentives for SEP owners to contribute their technologies to the standards. Chip-based licensing would result in more uniform charging which could be too costly for low-value applications or under-compensate for inclusion of SEPs in high-value applications.
  • Global licensing. While numerous technology products, including those containing cellular SEPs, are global with manufacturing and sales including many nations, and with thousands of global patent licenses agreed and underpinned by many billions of dollars of royalty payments made over many years, some implementers have held out from taking such licenses by arguing that national courts do not have extra-territorial jurisdiction. However, The UK Supreme Court’s recent appeal judgment in Unwired Planet v Huawei and Conversant v Huawei and ZTE rules that the English Court has power to grant an injunction in respect of UK national patents unless the implementer enters a global license of a multinational patent portfolio, and to determine the terms of that license. The UKSC recognizes that national courts determine validity and infringement of national patents but the ETSI IPR policy—as is applicable to cellular SEP licensing— empowers a national court to determine FRAND rates and terms. There was no UK lower-court determination of validity or infringement for foreign patents. Implementers remain free to challenge patents at the national level and seek a reduction in royalties should that be successful for significant technologies. Worldwide licensing is the norm, is supported by the ETSI IPR FRAND agreement, and is not precluded by national courts. There is no international forum for appeal, and so it is only national courts that can deal with disputes about worldwide licensing.

Extending SEP licensing reach for IoT through patent pooling


The ways in which cellular SEPs are licensed are expanding as these technologies are increasingly being implemented in many more devices than mobile handsets, tablets and PCs. While bilateral licensing is not going away any time soon, and will always remain an option due to antitrust concerns that would arise if one or even several patent pools were the only means of licensing, patent pooling or similar platform-based licensing is increasingly attractive in IoT including 5G. This is because the numbers of implementers and applications is increasing dramatically outside the cellular industry vertical, and because the value that IoT can provide significantly varies from case to case, accordingly. Patent pools have the scale to be able to offer one-stop-shopping to implementers with most or all of the SEPs they need to license, and with royalty charges that are proportionate to the value they derive from the sophisticated cellular technologies they use, such as upcoming ultra-reliable and low-latency communications in 5G.

While bilateral licensing is most likely to continue to predominate among the technology developers and implementers within the cellular industry, the Avanci licensing platform —initially focusing on connected vehicles and smart meters with charges (e.g. up to $15 per vehicle for 3G & 4G) based on value in those devices and applications—is beating a new path in cellular technology licensing. This is attractive in IoT, including 5G, in a way that has already proven successful for all devices in video codec standard technology licensing.

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Endnotes

¹While it is not cost effective or necessary to patent in all jurisdictions, effective IP protection for products manufactured or sold in several or many nations also requires patenting in multiple jurisdictions including US, China, Europe and Japan.

²Net of duplicates, I estimated 265 different companies had declared patents as essential to 3GPP standards in the ETSI IPR database by May 2019. While patent counting is not an accurate or reliable of method of comparing SEPs among different patent owners, as illustrated by wide disparities in various studies’ patent essentiality assessment results, these studies far less controversially all show that most SEPs are owned by fewer than 10 companies.

³While, according to Strategy Analytics, 37 OEMs accounted for 83% of cellular handset shipments in 2018, the GSM Suppliers Association had identified, already by August 2020 (less than 18 months from 5G’s inception), 93 vendors who had announced 401 available or forthcoming 5G devices including 18 different “form factors” among these. While GSA’s figures include various end-devices, they also include intermediate products including modules and vehicle onboard units which are increasingly being incorporated in plethora of additional end-devices (e.g. cars) by many different OEMs serving their respective vertical markets. For example, licensing platform Avanci, with 39 licensors, has licensed 14 vehicle manufacturers. There are also many OEMs in other verticals, including healthcare, industrial automation and asset tracking. For example, 36,000 Bluetooth Special Interest Group members including manufacturers and others in numerous vertical sectors all cross-licence their SEPs for the Bluetooth standard under a royalty-free pooling arrangement.

⁴While 332,511 patents had been declared essential to 3GPP standards in the ETSI IPR database by September 2020, studies claim that many of these are not actually essential.

⁵A total of 56 companies, including patent pools and patent-assertion entities, were identified as prospectively generating cellular SEP royalties, with 5 “Leaders” and 16 other public companies accounting for more than 90% of these, in A New Dataset on Mobile Phone Patent License Royalties, by Haber, Galetovic and Zaretzki, 2H 2017.

⁶The vast majority of video codec SEPs are licensed to thousands of licensees through only a few patent pools including those administered by MPEG LA, HEVC Advance and Velos Media.

⁷The BRL states at page 18: ‘Here, the efficiencies from the proposed field of use appear to be considerable and are likely to outweigh the potential competitive harm caused by limiting the scope of the Standard [Patent Licensing Agreement] to connected vehicles. The Antitrust Guidelines for the Licensing of Intellectual Property make clear that field-of-use restrictions can be procompetitive because they allow the licensor “to exploit [its patents]as efficiently and effectively as possible” and that they may “increase the licensor’s incentive to license.”’ (Citations omitted.)

⁸The BRL states at page 20: ‘There are “a variety of ways” parties might value patented technology, including setting royalties based on end-product revenue. The essential cellular SEPs licensed here are subject to FRAND commitments. Avanci represents that its current rates for the 4G Platform are FRAND and reflect input from both licensors and licensees, and that Avanci intends its 5G rates also to be FRAND. There is no single correct way to calculate a reasonable royalty in the FRAND context. Each standards-essential patent holder will have to decide whether the Avanci Platform comports with its own FRAND commitments. Standards implementors can enforce the commitments in contract proceedings if there are disputes. The Department believes parties should be given flexibility to license in a manner, consistent with these commitments, that best rewards and encourages innovation.’ (Citations omitted.)

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This article was originally published in RCR Wireless.

Keith Mallinson is a leading industry analyst, commercial consultant and testifying expert witness. Solving business problems in wireless and mobile communications, he founded consulting firm WiseHarbor in 2007.

Wednesday, 23 September 2020

Guest Post: Professor Denoncourt's Event Report -- Intellectual property: meeting global business and technology challenges

IP Finance is very happy to offer our readers this guest post by Nottingham Law School professor Janice Denoncourt summarizing the high points of a Montreal Council on Foreign Relations event featuring Francis Gurry, outgoing Director General of WIPO.  

On 15 September 2020 the Montreal Council on Foreign Relations (CORIM) organised a fascinating 30 minute webinar with Francis Gurry, Director General, WIPO.  The event is part of CORIM’s Business Series Online accessible for a small fee of CAD $30.  “Who will finance Innovation?”  is the strapline of WIPO’s Global Innovation Index 2020 https://www.wipo.int/global_innovation_index/en/2020/.  Canada currently ranks 17th overall behind Japan and Ireland, retaining its position from last year, but well out of the top 10 where it aspires to be.

From Geneva, Gurry discussed emerging global business and technology challenges with moderator, Lally Rementilla.  Lally is well-known in the Canadian intellectual property (IP) backed finance world.  In July 2020 she was appointed Managing Partner, IP-Backed-Finance for BDC Capital (www.bdc.ca).      

By way of background, the Business Development Bank for Canada (BDC, French: Banque de Développement du Canada) is Canada’s bank for entrepreneurs.  It is wholly owned by the Government of Canada.    Jérôme Nycz, executive vice president at BDC Capital stated, “Our goal…is to make Canada a leader in the IP space.”  BDC Capital, the bank’s investment arm, has created a new CAD $160 million intellectual property (IP) development financing fund to support IP-rich companies who seek to commercialize their IP, increase their competitiveness and expand globally.  This BDC’s IP finance initiative is a positive reflection on Canada’s comprehensive 2018 National IP Strategy https://ic.gc.ca/eic/site/108.nsf/eng/home

The pair discussed several broad topics and set out below are the highlights.  

Rementilla asked for Gurry’s perspective on the role of IP rights in the new world order.  Gurry noted that a number of tendencies have been accelerated by Covid-19 virus and pandemic, not to mention worrisome trade wars and cyberwarfare, resulting in further complexity in the IP world.  Nevertheless, despite the gloom and doom ‘IP is a vector for collaboration’ said Gurry.  Indeed, 2.1% of the world’s global gross domestic product (GDP) is tied to research and development.  Gurry hopes that despite the decline in foreign direct investment, international collaboration in innovation will continue.  He cited the example of innovation hotspot Silicon Valley, where the majority of inventors are foreign.  

A key geopolitical change of course is the rise of Asia and in particular the People’s Republic of China (PRC) as a patent powerhouse.  Gurry noted that the PRC is buoyed by its national focus on IP leading to it overtaking the United States in filing patents overseas.  Indeed, I would add that the PRC announced earlier this year that it is preparing the outline for its second National IP strategy for the 2021-2013 period.  According to Gurry, a successful national IP strategy involves a focus ‘from the top’ on science, technology and innovation and further that ‘success comes when there is an awareness at the very top of the importance of protecting a nation’s competition advantage’. 

Turning to finance for IP-rich tech start-ups, Gurry surmised that ‘With a start-up you are basically backing an intangible asset’.  Further, as author of Intellectual Property, Finance and Corporate Governance (2018) I was delighted to hear that Gurry supports re-thinking the gaps in traditional accounting to better support valuation intangible IP rights.  In December 2019, I had the pleasure of attending a meeting with the BDC’s C-suite in Montreal alongside Lally and other IP experts.  I shared my views and IP in the boardroom research to raise awareness of the potential of IP-backed financing, which has now come to fruition.  

Gurry acknowledges that there are changing perceptions about IP rights.  However, he cautioned that the alternative, a scenario where no one uses IP rights, could lead to a lack of transparency.  The publication of patent information is ‘the most systematic record of humanity’s technology’, he said.   

In response to Professor Isolde Gendreau’s (Université de Montreal, Faculté de Droit) question regarding the potential for supra-national enforcement of IP rights, Gurry recognized that counterfeiting and piracy are now global issues.  These behaviors affect both developed and developing countries alike and require a global response.  Thus, WIPO’s focus is on ‘building respect for IP rights, rather than putting teenagers in jail’.  WIPO will look to ‘build capacity to take action internationally’. 

The CORIM webinar, ‘Intellectual property: meeting global business and technology challenges’ may have flown under the radar for many outside Canada.  However, it is a timely reminder of Gurry’s wisdom and contribution to the global IP landscape as WIPO’s Director-General since 2008.  His term will end this month. Join me in wishing him every success in the future. 

Dr Janice Denoncourt

Associate Professor

Nottingham Law School

Nottingham Trent University

Wednesday, 16 September 2020

Curing contagion and harm from previous changes in IP policy and law for SEP licensing

Following IEEE’s purported “clarification” and “update” of its Patent Policy in 2015, with a non-objecting Business Review Letter from the U.S. Department of Justice at that time, the Department has now “supplement[ed], update[d] and amend[ed]” its 2015 BRL with a new BRL.

The Department complains in its new BRL that its 2015 BRL was “frequently and incorrectly” cited as “an endorsement of the IEEE Policy.” The new BRL emphatically and with mettle renounces Standard Setting Organization patent policy changes that were proposed by the former head of the Department’s Antitrust Division, Assistant Attorney General, Renate Hesse, together with those that were detailed in IEEE’s 2015 Patent Policy.

This Patent Policy change was damaging to IP owners and their incentives to contribute to the standard setting and development process. Misinterpretation of the BRL, including by foreign authorities, has resulted in harmful policy developments and legal overreach in Standard-Essential Patent disputes.

As also requested by the Department most recently, it is about time IEEE re-reconsidered its Patent Policy given adverse developments at this SSO and with changes in US law and policy with respect to SEPs since 2015.

A low watermark for developers and contributors of SEPs

The former AAG, publicly beckoned SSOs to weaken patent owners’ rights with her disregard for considerations of patent “hold out.” In a 2012 speech entitled Six “Small” Proposals for SSOs Before Lunch she suggested that SSOs include terms in patent policies that make injunctions harder to obtain, restrict cross-licensing and “explore setting guidelines for what constitutes a F/RAND rate.” She also encouraged SSOs to overcome any concerns they might have about antitrust actions against their revised patent policies by “seek[ing] ex ante review through [the Department’s] business review procedures.” This was presumably to reassure any SSOs that might adopt her proposals would not find adverse antitrust actions being formulated against them subsequently.

A couple of years later, IEEE-SA (responsible for the 802.11 WiFi standard among many others) changed its Patent Policy in 2015, touting it as “clarification” and an ”update,” but it actually set out various wholly new terms that are restrictive and harmful to patent owners. In the face of significant resistance by IEEE members who were technology contributors, and via a highly controversial and secretive process, the new patent policy significantly restricted flexibility in the Reasonable and Non-Discriminatory commitment with the following conditions:
  • SEP holders must waive their rights to seek any injunctions until they have successfully-litigated claims against unlicensed implementers to conclusion in a court of appeals;
  • Reciprocal cross-licensing cannot be required, except for patents reading on the same standard;
  • Royalty charges “should” be calculated based on the “smallest saleable” implementation of any portion of the standard and comport with a reasonable aggregate royalty burden of the relevant standard; and
  • Only licenses for which SEP holders have relinquished the right to seek, enforce, or even threaten, an injunction can qualify as “comparable licenses” for determining RAND royalties.

The Patent Policy “update” also obliged patent holders to be bound by the IEEE RAND commitment to license their patent to any “Compliant Implementation,” meaning that a patent holder making such a commitment cannot opt to license its patents for using the IEEE standards at only certain levels of production (e.g. entire end product device, as opposed to chip or module).

The cause’s harmful effects

Following my in-depth empirical analysis on the effects of this patent policy change, published in September 2017—which showed that the standardization process was being jeopardized given the widespread unwillingness of technology developers to pledge their patents to the new Patent Policy—in a review of IP policy developments in December 2017 I also wrote:

“[Assistant Attorney General Makan Delrahim], the new head of the US DoJ antitrust division is reinforcing a trend that shifts the balance between IP rights and antitrust restrictions.[1] But significant harm has already also been done internationally with contagion from prospective or actual policy positions that were previously more hostile or equivocal on IP owners’ rights. For example, some Asian antitrust agencies have welcomed, for reasons of industrial or protectionist policy, previous attempts in the ‘West’ to weaken rights of SEP owners. Actions have included seeking to reduce royalty returns, imposing chip-based licensing and reducing the availability of injunctions. Getting the Asian authorities also to reverse their positions in IP policy, for example, on antitrust enforcement, is a daunting task.”

I, among various others, unwittingly, incorrectly, yet unsurprisingly misinterpreted the extent of what the Department had stated in its 2015 BRL. This BRL purported a patent “hold up” problem that the "Update" to IEEE’s Patent Policy “may further help to mitigate.” And it was a cunning sleight of hand by the former AAG to propose more in her aforementioned speech than could be legally defended as “endorsed” by the Department’s BRL.

The new BRL clarifies and underlines the Department’s position by stating that “[b]ased on our analysis in 2015, we indicated there was no intention at that time to challenge the proposed policy—nothing more. Any representation by IEEE—or other stakeholders, government enforcers, or commentators—that the Department has endorsed the Policy is wrong, causes confusion, and must stop.” (all BRL citations omitted here and elsewhere.) So, while I argued from the outset against such a Patent Policy change—given the adverse effects it would have on patent holders, the standard development process and how it would contaminate policy making and licensing enforcement abroad—with my perceptions prejudiced by separate public statements from the former AAG and from analysis in the 2015 BRL, I also incorrectly inferred at least an implicit “endorsement” of the Patent Policy change by the Department in its issuance of the 2015 BRL:

Curing and reversing the contagion

The detrimental effect of the patent policy change and supporting BRL is possibly even more severe outside of IEEE standards in some jurisdictions. The 2015 IEEE patent policy change, endorsed by a BRL from the previous DoJ antitrust head, is dangerously serving as a template for antitrust enforcers worldwide – not only with respect to IEEE standards, but also for other standards such as 3GPP’s mobile communications standards. This is like pushing at an open door in nations where antitrust enforcement is being used as an instrument of industrial or protectionist policy to support manufacturing-oriented companies who would like to pay less for the IP they are reliant upon that is developed in other nations, significantly including the US and Europe.

Contributing technology to standardisation efforts and making a FRAND commitment is voluntary. If antitrust agencies construe IEEE’s patent policy as only a “clarification,” and therefore impose it on holders of SEPs to various [SSO’s] standards the effects could be severe. They might bind patent holders to new conditions that they were never willing and never agreed to accept— for IEEE standards and for other standards. The latter would include standards such as 3GPP’s where some technology developers’ business models, development of standards and their success are much more dependent on payment of royalties than with IEEE standards. 3GPP standards account for much more in total royalties than IEEE standards. Delrahim rightly states that “[w]e should not transform commitments to license on FRAND terms into a compulsory licensing scheme.”

Antitrust agencies including NDRC (China), KFTC (Korea) and TFTC (Taiwan), as well as many other organisations and individuals have been swayed by or receptive to policy positions of US and European government agencies that were against or ambivalent about upholding patent rights in interoperability technology standards including those of many [SSOs] including IEEE, 3GPP (including regional partners such as ETSI).’

The new BRL also notes that:

“the misinterpretation of the 2015 Letter appears to extend around the world and may have influenced foreign enforcement activity. Over the last several years, some foreign competition authorities have misapplied the 2015 Letter in support of enforcement actions against essential patent holders that have no basis under U.S law, raising the prospect that the business review process could be subject to intentional manipulation abroad. For instance, in 2017 a major economy’s competition agency claimed the Department expressed support for IEEE’s injunctive relief provisions in connection with a liability decision penalizing an essential patent owner. And, more recently, a policy report authored for another jurisdiction incorrectly characterized the 2015 Letter and other Department letters as “soft precedent” to guide SSOs in designing IPR policies. 

IEEE’s advocacy may have informed the broad misinterpretation of the 2015 Letter and led to mistaken reliance on it as guidance for foreign enforcement activity. The potential negative impact to global enforcement policy from such a misunderstanding is extensive, commensurate with the wide proliferation of antitrust agencies around the world and the scope of remedies sometimes sought by jurisdictions.”

However, I also noted in 2017 that IEEE remained alone in unfairly manipulating its patent policy to the detriment of patent owners, with other [SSOs] resisting such harmful change:

‘Except for IEEE, [SSOs] have reaffirmed longstanding IP policies that uphold the rights of patent owners. For example, major European [SSOs] CEN and CENELEC state that [SSOs] should not provide guidance on, or impose compliance with, FRAND pricing, valuation, and rate-setting methodologies, and they “firmly believe that pricing should be determined by patent holders and implementers outside of SSOs in the context of bilateral negotiations.”’

Backspin

Recent developments in policy and law indicate that the undermining of fundamental patent rights and fixed, formulaic prescriptions for determining royalties outside and inside of court are out of favour

In its attempts to limit damage and effect reversal in the direction of policy change, the new BRL states that “[t]he Department urges IEEE to ensure that neither it nor its members characterize the 2015 Letter as an endorsement of IEEE’s Policy.” And it indicates “the Department’s concern about mischaracterization of the Letter is also animated in large part by recent changes to US law and policy that render aspects of the 2015 Letter inaccurate.” Therefore, “[t]he Policy limits the basket of rights available to an essential patent owner such that it may undercut current US law and policy.”

The Department highlights in its new BRL:
  • “serious harm to innovation that could arise from limiting injunctive relief.” This is because “injunctive relief is a critical enforcement mechanism and bargaining tool—subject to traditional principles of equity —that may allow a patent holder (including an essential patent holder) to obtain the appropriate value for its invention when a licensee is unwilling to negotiate reasonable terms.”
  • “key risk in relying solely on the smallest saleable unit method, to the exclusion of others, is that real-world licenses often set royalties based on end-product revenue. Parties should not be discouraged from relying on these licenses—particularly since this sort of market-based evidence is often “the most effective method of estimating [an] asserted patent’s value.”

The heart of the matter

A major policy contention over many years is the extent to which efficient FRAND licensing can be disrupted, unfairly distorted or prevented by patent “hold up” by patent owners seeking excessive royalties or by patent “hold out" by implementers seeking sub-FRAND royalties, or to delay payment or avoid it altogether. According to the new BRL, ‘The 2015 Letter focused on the risk of so-called “hold up” by patent-holders without considering the possibility of “hold out” by patent implementers or the Policy’s effect on patent holders’ innovation incentives.’ It also states that ‘The 2015 Letter has proven incorrect, however, in anticipating that “hold-up” would be a competitive problem. Rather, concerns over hold-up as a real-world competition problem have largely dissipated.’ The Department notes that “studies and analyses conducted in the intervening years about hold out have confirmed that these are serious concerns, as well.” In my analysis and opinion, while purported concerns about patent “hold up” have never been factually substantiated, patent “hold out” is a pervasive problem. Accordingly, ‘The Department since has recognized that “[c]ondemning [hold up], in isolation, as an antitrust violation, while ignoring equal incentives of implementers to ‘hold out,’ risks creating ‘false positive’ errors of over-enforcement that would discourage valuable innovation.”’

The Department now urges SSOs “to promote balanced representation in decisional bodies so that diverse interests are represented and [SSO] decisions do not shift bargaining leverage in favor of one set of economic interests, including the interests of either implementers or patent holders.”

Making amends

The new BRL seeks to limit the damage caused at home and abroad by remarks made by the previous AAG, by what was described in the 2015 BRL and by what was incorrectly inferred to be Department policy at that time. While absence of evidence in support of patent “hold up” theory would have made it indefensible for the Department to “endorse” IEEE’s 2015 patent policy with advocacy in the 2015 BRL, non-objection to that patent policy in that BRL and these other statements have had adverse effects at home and abroad. While the new BRL will help arrest and reverse harmful change beyond IEEE in the US and elsewhere, I will watch with interest to what effect this and other recent developments in law and policy might have on patent policy at IEEE.


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[1] The new trend was already being set by other actions including: (i) dissenting statements of US FTC Commissioner Maureen Ohlhausen in the matters of (a) Robert Bosch, (b) Motorola Mobility and Google and (c) Qualcomm; (ii) the CJEU’s judgement in Huawei v ZTE establishing obligations applying to both sides of an SEP-licensing agreement. The European court also stated that the FRAND commitment “cannot negate the substance of the rights guaranteed to the proprietors by Art. 17(2) of the European Charter of Fundamental Rights.”


Friday, 4 September 2020

Big Win for Qualcomm in the Ninth Circuit

 In a big win for Qualcomm, the Ninth Circuit Court of Appeals (Judge Callahan writing the opinion), in FTC v. Qualcomm, __ F.3d __ (9th Cir. August 11, 2020), found that Qualcomm had not violated competition law based on licensing practices, including refusal to deal and FRAND practices.  Notably, the Ninth Circuit overturned the District Court’s “permanent, worldwide injunction prohibiting Qualcomm’s core business practices.”  The District Court made five major findings:

1) Qualcomm's “no license, no chips” policy amounts to “anticompetitive conduct against OEMs” and an “anticompetitive practice[ ] in patent license negotiations”; (2) Qualcomm's refusal to license rival chipmakers violates both its FRAND commitments and an antitrust duty to deal under § 2 of the Sherman Act; (3) Qualcomm's “exclusive deals” with Apple “foreclosed a ‘substantial share’ of the modem chip market” in violation of both Sherman Act provisions; (4) Qualcomm's royalty rates are “unreasonably high” because they are improperly based on its market share and handset price instead of the value of its patents; and (5) Qualcomm's royalties, in conjunction with its “no license, no chips” policy, “impose an artificial and anticompetitive surcharge” on its rivals’ sales, “increas[ing] the effective price of rivals’ modem chips” and resulting in anticompetitive exclusivity.

One important problem with the District Court’s analysis, according to the Ninth Circuit, was the District Court’s failure “to distinguish between Qualcomm’s licensing practices (which primarily impacted OEMs) and its practices relating to modem chip sales (the relevant antitrust market).”  The Ninth Circuit rejected the District Court’s reliance on the Aspen exception to the general concept that refusals to deal are not antitrust violations and quoted a prior case: “’Competitors are not required to engage in a lovefest.’”  The Ninth Circuit also found that Qualcomm’s conduct in breaching its SSO agreements did not arise to an antitrust violation.  Notably, the Ninth Circuit stated:

Finally, we note the persuasive policy arguments of several academics and practitioners with significant experience in SSOs, FRAND, and antitrust enforcement, who have expressed caution about using the antitrust laws to remedy what are essentially contractual disputes between private parties engaged in the pursuit of technological innovation. The Honorable Paul R. Michel, retired Chief Judge of the Court of Appeals for the Federal Circuit, argues that it would be a mistake to use “the hammer of antitrust law ... to resolve FRAND disputes when more precise scalpels of contract and patent law are effective.” Amicus Curiae Br. of The Honorable Paul R. Michel (Ret.) at 23. Judge Michel notes that “[w]hile antitrust policy has its place as a policy lever to enhance market competition, the rules of contract and patent law are better equipped to handle commercial disputes between the world's most sophisticated companies about FRAND agreements.” Id. at 24. Echoing this sentiment, a former FTC Commissioner, Joshua Wright, argues that “the antitrust laws are not well suited to govern contract disputes between private parties in light of remedies available under contract or patent law,” and that “imposing antitrust remedies in pure contract disputes can have harmful effects in terms of dampening incentives to participate in standard-setting bodies and to commercialize innovation.” Wright, supra note 1, at 808–09.

The Ninth Circuit rejected the District Court’s determination that Qualcomm engaged in anticompetitive conduct by charging “unreasonably high royalty rates” among other things.  The Ninth Circuit stated:

We hold that the district court's “anticompetitive surcharge” theory fails to state a cogent theory of anticompetitive harm. Instead, it is premised on a misunderstanding of Federal Circuit law pertaining to the calculation of patent damages, it incorrectly conflates antitrust liability and patent law liability, and it improperly considers “anticompetitive harms to OEMs” that fall outside the relevant antitrust markets. Furthermore, even if we were to accept the district court's conclusion that Qualcomm's royalty rates are unreasonable, we conclude that the district court's surcharging theory still fails as a matter of law and logic.

On the Federal Circuit’s damages law, the Ninth Circuit states:

Even if we accept that the modem chip in a cellphone is the cellphone's SSPPU, the district court's analysis is still fundamentally flawed. No court has held that the SSPPU concept is a per se rule for “reasonable royalty” calculations; instead, the concept is used as a tool in jury cases to minimize potential jury confusion when the jury is weighing complex expert testimony about patent damages. See Ericsson, 773 F.3d at 1226(explaining that the SSPPU concept is a flexible evidentiary tool, not an unyielding substantive element of patent damages law); VirnetX, Inc. v. Cisco Sys., Inc., 767 F.3d 1308, 1327–28 (Fed. Cir. 2014) (same); LaserDynamics, 694 F.3d at 68 (same). As this case involved a bench trial, the potential for jury confusion was absent.

Moreover, the Federal Circuit rejected the premise of the district court's determination: that the SSPPU concept is required when calculating patent damages. See Commonwealth Sci. & Indus. Research Org. v. Cisco Sys., Inc., 809 F.3d 1295, 1303 (Fed. Cir. 2015) (“The rule Cisco advances—which would require all damages models to begin with the [SSPPU]—is untenable [and] conflicts with our prior approvals of a methodology that values the asserted patent based on comparable licenses.”) (citations omitted). The Federal Circuit has also observed that “ ‘[s]ophisticated parties routinely enter into license agreements that base the value of the patented inventions as a percentage of the commercial products’ sales price,’ and thus ‘[t]here is nothing inherently wrong with using the market value of the entire product.’ ” Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prods. Grp., LLC, 879 F.3d 1332, 1349 (Fed. Cir. 2018) (some alterations in original) (quoting Lucent Techs., Inc. v. Gateway, Inc., 580 F.3d 1301, 1339 (Fed. Cir. 2009)). These statements of law and current practice run counter to the district court's conclusion that patent royalties cannot be based on total handset price and that doing so exposes a firm to potential antitrust liability.

On Qualcomm’s “no license, no chips” policy, the Ninth Circuit stated:

This is not to say that Qualcomm's “no license, no chips” policy is not “unique in the industry” (it is), or that the policy is not designed to maximize Qualcomm's profits (Qualcomm has admitted as much). But profit-seeking behavior alone is insufficient to establish antitrust liability. As the Supreme Court stated in Trinko, the opportunity to charge monopoly prices “is an important element of the free-market system” and “is what attracts ‘business acumen’ in the first place; it induces risk taking that produces innovation and economic growth.” Trinko, 540 U.S. at 407, 124 S.Ct. 872. The record suggests that this case is more like Am. Express, where a company's novel business practice at first appeared to be anticompetitive, but in fact was disruptive in a manner that was beneficial to consumers in the long run because it forced rival credit card companies to adapt and innovate. 138 S. Ct. at 2290. Similarly here, companies like Nokia and Ericsson are now “[f]ollowing Qualcomm's lead” with respect to OEM-level licensing, and beginning in 2015 rival chipmakers began to successfully compete against Qualcomm in the modem chip markets. We decline to ascribe antitrust liability in these dynamic and rapidly changing technology markets without clearer proof of anticompetitive effect.

On the alleged anticompetitive nature of Qualcomm’s dealings with Apple, the Ninth Circuit stated:

Even if we were to agree with the district court that the Apple agreements were exclusive dealing contracts that substantially foreclosed competition in the relevant antitrust markets, it is undisputed that these agreements do not pose any current or future threat of anticompetitive harm. Despite the “clawback provisions,” Apple itself terminated the agreements in 2015—two years before the FTC filed its action. Thus, while we agree with the district court that these were structured more like exclusive dealing contracts than volume discount contracts, they do not warrant the issuance of an injunction.

Finally, the Ninth Circuit nicely sums up its reasoning and approach:

Anticompetitive behavior is illegal under federal antitrust law. Hypercompetitive behavior is not. Qualcomm has exercised market dominance in the 3G and 4G cellular modem chip markets for many years, and its business practices have played a powerful and disruptive role in those markets, as well as in the broader cellular services and technology markets. The company has asserted its economic muscle “with vigor, imagination, devotion, and ingenuity.” Topco Assocs., 405 U.S. at 610, 92 S.Ct. 1126. It has also “acted with sharp elbows—as businesses often do.” Tension Envelope Corp. v. JBM Envelope Co., 876 F.3d 1112, 1122 (8th Cir. 2017). Our job is not to condone or punish Qualcomm for its success, but rather to assess whether the FTC has met its burden under the rule of reason to show that Qualcomm's practices have crossed the line to “conduct which unfairly tends to destroy competition itself.” Spectrum Sports, 506 U.S. at 458, 113 S.Ct. 884. We conclude that the FTC has not met its burden.

First, Qualcomm's practice of licensing its SEPs exclusively at the OEM level does not amount to anticompetitive conduct in violation of § 2, as Qualcomm is under no antitrust duty to license rival chip suppliers. To the extent Qualcomm has breached any of its FRAND commitments, a conclusion we need not and do not reach, the remedy for such a breach lies in contract and patent law. Second, Qualcomm's patent-licensing royalties and “no license, no chips” policy do not impose an anticompetitive surcharge on rivals’ modem chip sales. Instead, these aspects of Qualcomm's business model are “chip-supplier neutral” and do not undermine competition in the relevant antitrust markets. Third, Qualcomm's 2011 and 2013 agreements with Apple have not had the actual or practical effect of substantially foreclosing competition in the CDMA modem chip market. Furthermore, because these agreements were terminated years ago by Apple itself, there is nothing to be enjoined.