Judge: Qualcomm Guilty of 'Litigation Misconduct and Concealment'

In a blistering rebuke of Qualcomm during its pursuit of patent infringement claims against rival Broadcom - whose counterclaims led to an import ban on some Qualcomm chips, signed into law by President Bush yesterday - US District Judge Rudi Brewster yesterday issued a finding which contained this quote: "The Court finds by clear and convincing evidence that Qualcomm counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial [prior to] April 27, 2007."

As a result of this finding, Qualcomm is now prohibited from being able to enforce two of its patents for video compression techniques, the existence of which the company failed to disclose before a key meeting of the Joint Video Task Force (JVT).

There, a multitude of industry leaders with a stake in H.264 compression and its implementation in devices, were invited to attend in order to disclose their intellectual property claims with regard to H.264. Qualcomm did in fact attend, although company representatives had testified under oath that they did not, due either to lack of knowledge or that Qualcomm wasn't a member of JVT.

The purpose of attending JVT meetings was for each member to let colleagues and other industry players know what IP rights it intends to claim, in order that all may avoid possible infringement in the future. By not claiming its IP at that time, Broadcom argued, Qualcomm forfeited its right to claim that same IP later in court.

Last March, Judge Brewster ruled against Qualcomm, removing its right to enforce those two patents. But today, he blew away any chance Qualcomm may have had to rebuild that bridge, opening the possibility for future criminal litigation misconduct proceedings against the company.

"The Court finds by clear and convincing evidence," Judge Brewster wrote, "that Qualcomm intentionally organized a plan of action to shield the '104 and '767 patents from consideration by the JVT with the anticipation that (1) the resulting H.264 standard would infringe those patents and (2) Qualcomm would then have the opportunity to become an indispensable licensor to anyone in the world seeking to produce H.264-compliant products."

The admonishment never ceases, for 54 straight pages including excerpts of Qualcomm representatives' sworn testimony, coupled with e-mails that suggest they were lying under oath. The result is a ruling that reduces Qualcomm from a giant in the communications field to a bully whom the principal has just pulled off the playground by his ears.

"The track of this conduct following the adoption of the H.264 standard exposes aggravated litigation abuse," Brewster continued. "This abuse commenced with Qualcomm's abrupt commencement of suit, then continued (1) in discovery through Qualcomm's constant stonewalling, concealment, and repeated misrepresentations concerning existing corporate documentary evidence that would have revealed the fullness of the corporate plan; and (2) in trial through Qualcomm's presentation of numerous witnesses who steadfastly testified falsely denying even awareness, let alone participation in the JVT project and through the actions of Qualcomm's lead and co-counsel up to the time Qualcomm substituted new lead counsel, who adamantly denied the obvious and then, when the truth was discovered and exposed by the document production, sequentially contended denial of relevance, justification, mistake, and finally non-awareness."

The evidence showed, the judge found, that Qualcomm knew of its duty to disclose the existence of its two video compression patents as early as 2002. Yet they did not come to light until April 2006, when Qualcomm chose to file infringement claims on those patents.

Next: "The falsity of Ms. Irvine's testimony is now revealed as blatant..."

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