Qualcomm Injunction Against Broadcom Denied

The most heated intellectual property debate perhaps in the history of telecommunications will not be fought with either side being allowed a handicap.

Today, Federal Judge Rudi Brewster denied a motion by defendant Qualcomm, in its patent infringement case brought forth in May 2005 by competitor Broadcom, which would have enjoined Broadcom from being able to sell certain 3G cellular chips in the US. The technology in those chips, Qualcomm alleged in its countersuit, infringe upon seven of its patents.

Last February, Broadcom lost a similar injunction petition against Qualcomm, which would have enjoined Qualcomm from selling chips with third-generation cellular technology in the US that allegedly infringed upon ten of Broadcom's patents.

The score is even at nothing apiece heading into the first round of Broadcom's patent infringement suit against Qualcomm, with a trial date now set for October 2007. Outside the courtroom, Broadcom claims that Qualcomm has been creatively manipulating the licenses it grants its partners, so that it can collect multiple fees from the same partners for different instantiations of the same patent innovations.

Although Broadcom uses this argument in its defense against Qualcomm's countersuit, some say it may actually be the principal argument which drove it to sue Qualcomm in the first place.

Qualcomm has also been accused by Broadcom and others of driving, if not commandeering, the standards process for cellular technologies such as W-CDMA, in order that compliance with international standards automatically results in IP licensing fees for itself. This is an argument which has carried some weight, especially among companies such as Nokia, which last November found itself the subject of a separate Qualcomm lawsuit. W-CDMA technologies form much of the technological foundation of two wireless broadband standards, HSDPA and EV-DO, and Qualcomm has significant IP stakes in both.

For its part, Qualcomm has alleged that telecom companies such as Nokia and Broadcom, faced with the challenge of remaining competitive in markets such as Asia/Pacific where speed is in high demand, are adopting improvements that incorporate Qualcomm's innovations -- and perhaps others -- without regard to their originators.

Originally, Broadcom had hoped that this battle could be fought on five fronts simultaneously: in federal court on the US patent dispute, before the International Trade Commission on the same dispute, before the European Commission on charges that Qualcomm is withholding licenses, and in antitrust courts in both the US and South Korea.

But last month, a US district judge in New Jersey dismissed Broadcom's US antitrust suit without prejudice. Broadcom is appealing that dismissal, and could conceivably refine and re-file the suit.

The EC case is peculiar in that it argues that Qualcomm isn't allowing Broadcom and others (Nokia, Ericsson, NEC, Panasonic, and TI) to acquire licenses for the very technologies that Qualcomm claims they're using without permission.

The next round of the preliminary battle comes Monday, when the ITC judge in London is scheduled to hear arguments from both sides, which are seeking summary judgments against the other. Broadcom would like Qualcomm to stop charging multiple times for the same patent portfolio ("double-dipping"), while Qualcomm wants Broadcom to be held accountable for its alleged misuse of Qualcomm's patent portfolio. A ruling is expected from the ITC next Tuesday.