Court to Award Broadcom $39.3 Million in Qualcomm Dispute

The long-term effects of last week's scathing redress of Qualcomm's conduct by a federal court judge, have yet to be fathomed. In the short term, Qualcomm will probably have to pay rival Broadcom $39.3 million in damages and costs, which is not the treble damages it had been seeking, though it is double.

This tentative award comes late Friday as a result of a jury trial in US District Court in Santa Ana last May, which awarded Broadcom $19.64 million plus costs. There, the jury found Qualcomm guilty of nine counts of infringement on three Broadcom patents under dispute. The jury award entitled Judge James Selna to as much as triple that amount if he found Qualcomm acted with malice.

It wasn't exactly malice like revenge or spitefulness, the way Central California US District Judge Selna described it in his tentative ruling (which will probably meet some objections, but will soon go into effect). In fact, despite being guilty of conduct that Judge Rudi Brewster of the Southern District condemned with language like "litigation misconduct and concealment," Qualcomm was given a bit of a reprieve by Judge Selna for being forthright and honest in the courtroom - a finding which may have spared the company another $20 million.

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"There is no evidence that Qualcomm deliberately copied any Broadcom patents or products," Judge Selna wrote. "There is no evidence that Broadcom practiced any of the three patents in issue. With regard to the third factor, Broadcom makes no suggestion that Qualcomm's litigation behavior has been abusive or in bad faith. Rather, the parties have consistently behaved in a professional and admirable fashion throughout this litigation."

He went on to write that there was no actual allegation made by Broadcom that Qualcomm deliberately tried to harm it, or to conceal its conduct.

But that last point didn't exactly weigh in Qualcomm's favor in the end. When Broadcom first notified Qualcomm in writing of its then-alleged infringement claims, Qualcomm then had a duty to see whether Broadcom was correct, and either affirm a legitimate defense or do something about it. Qualcomm didn't bring up any evidence at trial to defend itself on this count, but Judge Selna believed that was within its rights.

"Other facts, such as Qualcomm's decision not to seek opinions regarding infringement, and its decision not to seek the invalidity opinion until approximately a year and a half after being placed on notice of potential infringement," Judge Selna concluded, "would lead the Court to conclude that Qualcomm did not, when it became aware of the patents in issue here, investigate the scope of those patents and form a good-faith belief that they were invalid or that Qualcomm did not infringe them."

So in summary: Waiting about 18 months to make an issue of it was a bad thing. Not covering up that fact was a good thing. Not making light of that fact in its own defense was not a bad thing. But then standing firm on the 18 months, ended up being pretty bad after all.

"There is a spectrum of improper conduct for determining the amount to award," the judge concluded. "That Qualcomm's conduct was not at the most egregious end of the spectrum does not mean that no enhanced award is due. A doubling acknowledges that this is not a polar case."

Last Tuesday, Qualcomm issued an apology to Judge Brewster's court in Southern California "for the errors made during discovery and for the inaccurate testimony of certain of its witnesses."

But then -- with respect, of course -- it stated it would appeal Judge Brewster's decision. Judge Selna's decision on this award is not yet final, though Qualcomm general counsel Lou Lupin has already said he intends to challenge the jury's finding on appeal.


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Monday afternoon, Qualcomm announced that Lou Lupin, the company's executive vice president and general counsel, had resigned from the company effective immediately. Carol Lam, a senior vice president who has also been on Qualcomm's legal team, will step in as interim general counsel while a search for Lupin's replacement is under way.

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