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Qualcomm’s “No License, No Chips” Program Violates Antitrust Laws

On May 21, 2019, following a full trial on the merits, Judge Koh of the Northern District of California issued a 233-page opinion in a closely watched case between the Federal Trade Commission (“FTC”) and Qualcomm, one of the largest chip suppliers in the world. See FTC v. Qualcomm Inc., No. 17-CV-00220-LHK, slip op. (N.D. Cal. May 21, 2019). In a decision Qualcomm has vowed swiftly to appeal, Judge Koh found violations of Sections 1 and 2 of the Sherman Act (and, therefore, a violation of Section 5 of the FTC Act) and invalidated Qualcomm’s “No License, No Chip” business model, condemned discounts characterized as de facto exclusive dealing, and entered an injunction upending Qualcomm’s business model. Depending on how the appeal fares, the decision may have significant implications for licensing practices of holders of Standard Essential Patents (“SEPs”), including for 5G and the Internet of Things (“IoT”).

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Video- IP strategies for financial technology

Time to Read: 2 minutes Practices: Intellectual Property

Leslie Spencer, an IP litigation partner, discusses the importance of developing a comprehensive and forward-looking intellectual property strategy for financial technology (FinTech) innovations.

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Until recently, discussion about the disruptive nature of financial technology—what we often call FinTech—centered on how FinTech would displace banks for providing frictionless interfaces for consumers and enterprises alike. Now, these new business models range from mobile payments, to online lending, to robo-advisors. And, rather than be displaced by the technology, incumbent banks chose to invest in FinTech—often heavily. Banks are looking to these disruptive technologies, not only to enhance user experiences, but to vastly improve their own processing efficiency and security. Faster, safer transactions are more profitable transactions. Some of the most promising technology in that regard is Blockchain.

Banks, FinTech startups and established technology companies are all working to develop Blockchain technology and its many commercial applications. This really highlights how critical it is to have a forward-looking and comprehensive intellectual property strategy to protect FinTech innovation. Now, for example, your competitors might obtain so-called “blocking patents” that can strain your ability to launch next generation products. Without patents of your own, you might have less leverage in a licensing discussion. Companies can employ a combination of IP strategies to protect FinTech, including trade secrets and copyrights, but you should always consider patent protection for core technologies like Blockchain. Other areas of focus for FinTech patent have included cybersecurity, mobile platforms, APIs, data analytics and cloud computing. Banks and technology companies are patenting in these areas.

The good news is that FinTech patent holdings are spread out over many players and none hold an overwhelming majority of the patents. Also, the patent holders are from a range of sectors, including technology and software, telecommunications, e-commerce and, of course, banks and FinTech firms are there. In considering your FinTech IP strategy, some key questions to ask are:

  • Does your IP portfolio cover your current and planned products—whether internally developed or acquired?
  • In what technology areas is patenting activity high? Are you investing in investing innovation where your competitors are?
  • Where might you direct innovation in order to obtain patents that cover your competitors’ current and planned products?

Whether you’re considering IP asset production to build a portfolio for licensing, or solely as a defensive measure, you need to carefully consider when investing innovation and how to protect it. This is particularly so for those involved in fast moving technology, such as FinTech and Blockchain.

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