QCOM/BRCM: QCOM Gains Ground in the ITC Appeal

Implications: With the Nokia fight now resolved, QCOM's primary litigation issues all involve Broadcom.  The most pressing of those is QCOM's pending attempt to reverse its loss last year at the International Trade Commission.  On that, recent events bode well.

Analysis: Last year, Broadcom delivered a seeming knock-out blow when it convinced the ITC that a QCOM chip, when used in particular ways, violated BRCM's patent on energy conservation.  BRCM's win was significant largely because of the breadth of the remedy.  The ITC barred not only QCOM from importing the accused chipset, but also barred QCOM's downstream customers from importing it as (say) part of a manufactured handset.

Fast forward to this month, and that same breadth has become QCOM's most promising defense.  At oral arguments in early July, QCOM asked the Federal Circuit to strike down the importation ban on the ground that it was impermissibly broad.  The ITC has the power to bar QCOM from importing an infringing chip, sure; but the ITC does not, on this argument, have the power to bar firms that were not themselves explicitly accused in (and hence officially allowed to participate in) the case.

QCOM raised a number of other arguments in the hearing, but the breadth is their best.  If QCOM wins it, the case would likely be sent back to the ITC for further proceedings, but regardless the fight at that point would be toothless.  The patent is set to expire; so by the time BRCM would file a new case explicitly naming all of the relevant QCOM customers, the patent will no longer be in force.

The Federal Circuit will likely rule in roughly six months.