The Implications of a Possible Santa Ana Retrial in QCOM v. BRCM

Implications: A few days ago, the judge in Santa Ana invited QCOM to petition for a new trial on the question of whether QCOM's infringement of the relevant BRCM patents was willful.  QCOM might as a result get a fresh shot on willfulness, but make no mistake: the original ruling is still important as a signal of how the judge is likely to rule on the injunction.

Analysis: A few weeks ago, the judge in the Santa Ana patent dispute ruled that QCOM's infringement was willful. The result was a doubling of damages from $20M to $40M.  Last week, however, the Federal Circuit announced a new standard by which willfulness should be judged, and the Santa Ana court is as a result considering re-opening its own decision regarding QCOM.  Big win for QCOM?  Hardly.

True, the new hearing might result in the judge deciding that QCOM's behavior was not willful.  I doubt that, myself; under the old subjective standard or the new objective one, I think QCOM is equally in trouble.  Regardless, however, only $20M turns on that question.

The reason the willfulness opinion was important was not the money, but the fact that it told us that the judge was not rolling his eyes at the BRCM patents.  If the judge were rolling his eyes, he would have used his discretion to find against willfulness.  For instance, he would have excused QCOM's behavior on the ground that it was reasonable for QCOM to think that the BRCM patents were not valid.   The judge, however, found willfulness, which means he thinks the patents pass the laugh test.  That's important because a judge who respects the patents before him is more likely to grant an injunction than one who thinks the patents were a mistake.

The new hearing, then, would only be about money. As such, no matter what happens, it would not be a substantial change in BRCM and QCOM's relative negotiating positions.