Judge: Qualcomm Guilty of 'Litigation Misconduct and Concealment'

Judge Brewster's finding cites the testimony of Qualcomm staff engineer Christine Irvine, who just last January testified under oath that Qualcomm wasn't even a member of JVT. When asked whether Qualcomm should have attended its meetings, Irvine responded, "Qualcomm is not aware of any attendance to any JVT meetings."

The judge showed zero mercy, writing: "The falsity of Ms. Irvine's testimony is now revealed as blatant. As detailed above at length, Qualcomm produced over one hundred e-mails post-trial related to Qualcomm's participation in the JVT and attendance of JVT meetings, the vast majority of which were received or sent by Ms. Irvine."

Later, his ruling cites the testimony of another Qualcomm engineer, James Determan, who said under oath that he did not know whether he was personally a member of JVT. E-mails uncovered during discovery showed that not only was he a member, he was a paying member ($800). Though he did not personally attend JVT meetings, he did receive e-mails from representatives who did, briefing him on their minutes and subject matter.

Then Judge Brewster lays into Qualcomm's counsel, formally accusing its legal team of misconduct. One example of the "stonewalling" he found on Qualcomm's part comes from its attorney's response to a request for evidence from Broadcom, objecting in several parts to its phraseology. One such objection would attempt to postpone the entire discovery process in order to address Qualcomm's wish that its brand name be referred to in all-caps ("QUALCOMM"), the way it appears in its PR brochures.

"QUALCOMM objects to the term 'Qualcomm Patent' as vague and ambiguous," read one of its objections, "and instead will refer to the 'QUALCOMM Patents-in-Suit."'

Four other objections individually called into question Broadcom's use of the terms "person," "identify," "relevance," and "related" in its requests as being "vague, ambiguous, unduly burdensome, overly broad, and requiring information not within [Qualcomm's] possession, custody, or control."

"Qualcomm counsel's discovery responses demonstrate that they were able to locate with alacrity company records from December 2003 forward and find four or more Qualcomm employees participating in proceedings of the JVT," Judge Brewster wrote. "Yet inexplicably, they were unable to find over 200,000 pages of relevant emails, memoranda, and other company documents, hundreds of pages of which explicitly document massive participation in JVT proceedings since at least January 2002. These examples of Qualcomm counsel's indefensible discovery conduct belie counsel's later implied protestation of having been 'kept in the dark' by their client."

BetaNews asked AR Communications' new senior vice president - and our long-time friend and analyst - Carmi Levy to comment on the implications of these last few days for Qualcomm.

"Qualcomm's long-term strategy has been to milk as much as possible out of the CDMA standard," Levy told us this afternoon. "It owned it, it licensed it to everyone else, and Qualcomm has ridden that cash cow for as long as it has possibly been able to.

"The flip side of that," he continued, "the longer you hold onto a standard and the more you resist the evolution of successive standards, then the more likely it is that you actually apply the brakes to the overriding market. So in many respects, the overall American wireless market has not moved as rapidly towards 3G, largely as a consequence of actions like near-monopolies like Qualcomm, because it's been in Qualcomm's long-term best interests to keep CDMA handsets and infrastructure flowing to the American public for longer, and not invest in follow-on technologies that might put that monopoly at risk."

"The world is rapidly moving to 3G and beyond, and virtually every other market outside of North America pretty much has us beat in terms of bringing next-generation infrastructure and services that run on top of them, to market. And that's not going to change as long as we have companies like Qualcomm holding on for dear life to intellectual property that they've essentially used to strangle the market for the life of the cell phone industry."