Brief of Amicus Curiae USIJ in Support of Appellant Qualcomm Incorporated


The decision below misinterprets both antitrust law and patent law in ways that, if allowed to stand, will diminish significantly the incentives of entrepreneurs, startups, inventors and their investors to pursue risky new ventures and unproven technologies. Many new technologies invented by entrepreneurs and small companies have value only if they can be licensed to sellers of larger products or systems. The district judge’s vehement and repetitious use of the term “anticompetitive” to describe the normal give and take that occurs in contract negotiations vilifies a patent owner’s insistence that infringers take licenses to the patents they want to use. This will inhibit the ability of many patent owners to negotiate patent licenses, particularly the smaller companies that do not have a great deal of bargaining power other than the potential enforcement of their patents. By vilifying patent owners that take a firm stand against infringement of their property rights, the decision lends credibility to the false but often used argument that patents are just a nuisance and interfere with real innovation. In fact, patents allow truly inventive companies to overcome the obstacles – economic and otherwise – that large incumbent companies are able to employ to protect their markets. Smaller companies already have a difficult time trying to benefit from their inventive efforts; the instant decision will add to the difficulty.