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FILE PHOTO: A Qualcomm poster was seen at the China International Imports Expo (CIIE), at the National Exhibition and Congress Center of Shanghai, China, on November 6, 2018. REUTERS / Aly Song / File Photo
February 20, 2019
By Stephen Nellis
(Reuters) – Qualcomm Inc. urges US trade regulators to overturn a judge's decision and ban the importation of certain Apple iPhones in a long patent battle between the two companies.
Qualcomm is seeking the ban in hopes of beating Apple hard before the start of a major test in San Diego in mid-April over Qualcomm's patent licensing practices. Qualcomm has sought to pressure Apple with lesser legal challenges before the lawsuit and has obtained a partial ban on iPhone sales in China and Germany against Apple, forcing the iPhone maker to not sell the iPhone. export only phones with Qualcomm chips in some markets.
Any possible ban on importing iPhone to the US could be short-lived because Apple has revealed for the first time that it has found a hotfix that avoids infringing any of the patents from Qualcomm. Apple has asked regulators to give it up to six months to prove that the fix works.
Qualcomm filed a lawsuit against Apple before the US International Trade Commission in 2017, alleging that some iPhones were violating Qualcomm's patents to help smartphones work well without draining their batteries. Qualcomm has requested an import ban on some older models of iPhone containing Intel Corp. chips.
In September, Thomas Pender, an ITC administrative law judge, had found that Apple had violated one of the patents in issue, but had refused to issue a ban. Pender said imposing a ban on iPhones with Intel chips would give Qualcomm an effective monopoly on the US modem chip market, which connects smartphones to wireless data networks.
Pender's decision stated that maintaining competition in the modem chip market was in the public interest, as faster 5G networks will come online in the coming years.
Cases in which the ITC finds patent infringements without prohibiting the importation of products are rare. In December, the full ITC announced that it would review Pender's decision and decide to maintain or overturn it by the end of March.
In documents released late last week before the commission's decision as a whole, Apple for the first time said it had developed a software patch to avoid infringing Qualcomm's patent. Apple said it had discovered the fix only after the trial and implemented the new software "last fall".
Apple has however indicated that it would take him six months to verify that the fix meets the regulators and sell its existing stocks. Apple has asked the commission as a whole to delay any import ban if it overruled the judge's decisions.
Qualcomm said on Friday that Apple's disclosure of a fix was undermining the reasoning behind Pender's decision and that phones with Intel chips should be banned during Apple's deployment of the patch.
"Pender recommended not to take action on the assumption that the patent (Qualcomm) would prevent Apple from using Intel as a supplier for many years and that no redesign was feasible," writes Qualcomm. "Apple now admits, more than seven months after the hearing, that the alleged prejudice is entirely preventable."
(Stephen Nellis report in San Francisco, edited by Lisa Shumaker)
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