Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Today I'm reporting results from three jury trials—who says trials are going the way of the dodo? At least not these last few months in the IP space. But first, a quick recap of the Justice Department's decision to partly oppose the Federal Trade Commission's case against Qualcomm, and then a new development in another FRAND/antitrust case. I've even got a little lateral hiring news too. As always you can email me your own thoughts and follow me on Twitter.

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DOJ's Makan Delrahim. Photo by Diego Radzinschi.

DOJ: Don't Listen to FTC on Qualcomm Remedy

It was surprising, yet it wasn't a surprise. The DOJ's antitrust division would now appear to be adverse to the Federal Trade Commission in its FRAND licensing dispute with Qualcomm.

While formally taking no position on the question of Qualcomm's liability, DOJ asked U.S. District Judge Lucy Koh last week to allow additional briefing and hold a hearing on remedies if she finds Qualcomm violated antitrust laws. The remedies sought by the FTC—which include requiring Qualcomm to renegotiate all its modem chip licenses—have “the distinct potential to harm rather than help competition,” DOJ said Thursday in a statement of interest signed by Principal Deputy Assistant AG Andrew Finch.

I say it's surprising because it's a little unseemly—though certainly not unheard of—for DOJ to get cross-wise with another federal agency. And Antitrust Division Chief Makan Delrahim was downplaying any philosophical differences between the agencies as recently as last month. Still, it's not surprising given Delrahim's approach to the enforcement of standard-essential patents.

Delrahim did not sign DOJ's brief, probably because he reportedly did lobbying work for Qualcomm a few years ago while in private practice. “There is a plausible prospect that an overly broad remedy in this case could reduce competition and innovation in markets for 5G technology and downstream applications that rely on that technology,” the DOJ statement says.

The FTC was diplomatic in a statement to The Wall Street Journal: “We believe we presented a strong case that Qualcomm violated the antitrust laws, and if the court rules in our favor we look forward to a discussion of remedies,” an FTC spokesman said.

Josh Landau of the Computer & Communications Industry Association, has been urging FTC not to settle now that Apple has dropped its challenge to Qualcomm's “no license, no chips” policy.

Landau notes while Qualcomm is a big player in the 5G modem business, there are other aspects of 5G such as base stations and network hardware they're not involved with. “Letting Qualcomm's behavior stand would set an example to the players in those markets that they can adopt similar tactics to drive out competition,” he says.

InterDigital Formally Accuses u-blox of Infringement

Earlier this year Delrahim and DOJ weighed in on a FRAND/antritrust battle between cellular module developer u-blox and InterDigital. You will recall that InterDigital stopped u-blox's bid for a TRO preventing it from telling u-blox's customers that they're unlicensed. But U.S. District Judge Cathy Ann Bencivengorefused to dismiss u-blox's suit, which accuses InterDigital of demanding “exorbitant” royalties on its 2G, 3G and 4G standard-essential patent portfolio and asks her to declare a FRAND rate.

InterDigital has now formally answered, denying u-blox's allegations and seeking its own declaration that u-blox has acted as “an unwilling licensee, engaging in unreasonable hold-out behavior.”

InterDigital also accuses u-blox of infringing two 4G patents held by InterDigital affiliates. “More specifically, u-blox has been and is now actively inducing direct infringement by other persons, such as u-blox's unlicensed customers who use, sell or offer for sale products that embody and/or otherwise practice” the patents, InterDigital alleges.

InterDigital is represented by a Wilson Sonsini Goodrich & Rosati team led by partners David Steuer and Michael Levin. U-blox is represented by Sheppard Mullin Richter & Hampton.

Venable's Fitzpatrick Acquisition Paying Dividends

The law firm formerly known as Fitzpatrick, Cella, Harper & Scinto has scored a big win before a Delaware federal jury. A team of Fitzpatrick attorneys who now practice at Venable following the two firms' 2018 merger piloted Vectura Group Plcto an $89.7 million verdict last week for patent infringement.

Jurors found that GlaxoSmithKline's Breo, Anoro and Incruse inhalers for treating lung disease infringed claim 3 of Vectura's U.S. Patent 8,303,991, which covers a method of making composite active particles for inhalation. The jury also found that Glaxo acted willfully. U.S. District Judge Richard Andrews presided.

Venable's team was led by partner Chris Borello and included partners Dom Conde, Brendan O'Malley and Damien Dombrowski and associates Josh Calabro, Mike Scerbo, Zack Garrett and Sean McDonagh. Also providing counsel was Richards, Layton & Finger.

Glaxo, which argued that the patent was not infringed and that it was obvious, was represented by Morris, Nichols, Arsht & Tunnell and Dechert.

Images from Gavrieli's complaint.

Italian Shoe Designer Gets Case of the Blues

Morgan Lewis & Bockius has scored a trademark win for Gavrieli Brands and its popular Tieks line of footwear against an Italian designer and its American affiliate.

Jurors awarded $2.1 million for Soto Massini's infringement of Gavrieli's trade dress—namely, the distinctive blue outsoles of the Tieks ballet flats—and for false advertising and unjust enrichment. Gavrieli had accused Soto Massini of trading on the goodwill Gavrieli invested in blue outsoles by, among other things, launching a Kickstarter campaign to promote its Terzetto Milano flats in the United States.

Morgan Lewis' team included partners John Gorman and David Marston, and associate Amy Dudash. Soto Massini was represented by Stamoulis & Weinblatt.U.S. District Judge Maryellen Noreika presided over the trial.

Trade Secret Dispute Yields $845M Judgment

As I reported Monday, semiconductor designer ASML U.S. has obtained a final judgment of $845 million from competitor XTAL Inc. in a trade secret battle over computational lithography.

Though the number is eye popping, little money will actually change hands, as XTAL has filed for Chapter 11 bankruptcy protection. But ASML negotiated with XTAL for an injunction before Santa Clara County Superior Court Judge Sunil Kulkarni that prevents XTAL and its employees from work in the same business as ASML for three years. XTAL is also assigning ASML its intellectual property.

ASLM's lead trial attorney, Bartko, Zankel, Bunzel & Miller partner Patrick Ryan, says the judgment sends a strong message about ASML's willingness to protect its IP. He says it also validates a seldom-used approach for proving damages—basing them on the defendant's avoided R&D costs. “The defendants basically stole a head start,” he said. “It seems fair to the jury that people shouldn't be able to accelerate their development by stealing. It's intuitive.”

Mayer Brown Partners Join K&S

King & Spalding has grabbed two IP partners from Mayer Brown. The firm announced Monday that Stephen Baskin, a former leader of the firm's IP practice group in D.C., and D.C. partner Dara Kurlancheek, have joined the firm, my ALM colleague Patrick Smith reports.

King & Spalding reports it has added 16 attorneys to its IP team in the last year and a half, though as Smith notes, it's also seen some departures.

Baskin, who also is an alum of Kilpatrick, Townsend & Stockton, said King & Spalding's larger focus on international clients was part of the draw. “We plan on continuing to do what we do,” he said. “But there is opportunity for strategic growth in Asia.”

Kenneth Steinthal, leader of King & Spalding's intellectual property practice, said he's known both lawyers for many years, and their “technical expertise and current list of clients overlap perfectly with the firm's strategic priorities.”

MoFo Duo Joins Squire Patton

Squire Patton Boggs has bolstered its IP practice with a pair of ex-Morrison & Foerster partners on either side of the country, my ALM colleague Xiumei Dong reports.

David Manspeizer and Greg Chopskie have joined the Cleveland-based firm's intellectual property and technology practice as partners in New York and San Francisco, respectively. The duo previously worked together for over a decade, and reunited again at MoFo in 2016.

“Couple of years ago, we decided that we wanted to, for lack of a better term, 'get the band together again' and work as closely as we did back when we were both starting out,” Manspeizer said.

Manspeizer has been collaborating closely with Chopskie on patent litigation and IP matters since he recruited Chopskie to Finnegan, Henderson, Farabow, Garrett & Dunner as an associate in 1998. The two then both moved in-house at Wyeth. They went on separate paths when Manspeizer joined Wilmer Cutler Pickering Hale and Dorr in 2010. Chopskie moved to Japanese pharmaceutical firm Shionogi Inc. in 2011 and then joined Gilead Sciences in 2013.

“David and I practice extremely well together,” said Chopskie of the reunion. “We complement each other in many respects, we personally like each other, and we know how we work.”

That's all from Skilled in the Art for today. I'll see you all again on Friday.