Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Now that my head's stopped exploding from reading U.S. District Judge Lucy Koh's bombshell ruling in FTC v. Qualcomm, I'm trying to assess some of the implications: Will Qualcomm get a stay pending an appeal? Are licensees better off renegotiating now, or seeing how things play out at the Ninth Circuit (or Supreme Court)? There are no obvious answers, but the questions sure are interesting. As always please feel free to email me your own thoughts and follow me on Twitter.

What Qualcomm Has to Look Forward to

Lucy Koh explained everything. And as a result, we know nothing.

It's been 56 hours since Judge Koh rained down 233 pages of antitrust pain on Qualcomm, branding its executives (and lawyers especially) as fabulists and monopolists, and ordering the company to renegotiate all of its modem chip licenses without threatening to cut off chip supply, on FRAND terms, and at the chip level.

So what happens now?

“Qualcomm is tossed back into uncertainty that the Apple settlement seemed to cure,” says MarketWatch.

“It's Too Early to Gauge Qualcomm's Impact on Apple,” says TheStreet's Jim Cramer.

“Ruling challenges Qualcomm's business model,” says the Financial Times.

Yep, we are still looking for answers.

Qualcomm has vowed to appeal Koh's order, saying “we strongly disagree with the judge's conclusions, her interpretation of the facts and her application of the law.” The company has had success contesting or settling other countries' antitrust decisions. But now the irresistible force of its appellate lawyers will face the immovable object of Koh's detailed factual findings.

I asked Goodwin Procter's Monte Cooper for some insights. Cooper's been following the case as a veteran of SEP litigation and as counsel to Sequans Communications, one of numerous third parties in the case.

The first big question is whether Koh's order will be stayed pending appeal. Cooper says that in issuing a permanent injunction, Koh has already addressed two of the four factors that would factor into a stay—likelihood of success on the merits and the public interest—and resolved both against Qualcomm.

So he isn't taking it as a given that Koh, or even a Ninth Circuit motions panel, will stay the case while an appeal plays out. “I can see compelling arguments on both sides,” he said.

Cooper's also curious to see if Qualcomm will voluntarily accept parts of the injunction—for an example, agree to stop forbidding customers from communicating with government agencies about regulatory matters—or if it will dig in and challenge each aspect of Koh's order.

Will Qualcomm's licensees try to renegotiate their deals before the Ninth Circuit or the Supreme Court have their say? “The very uncertainty of the appeal I think is potential leverage for the licensees,” Cooper says. Qualcomm may be leery of doing anything now to add to the antitrust narrative. But licensees may be reluctant to jeopardize their business relationships with the company before the dust completely settles. “I think, in a lot of ways, it's more of a business decision than a legal one,” Cooper says.

Finally, what about the multibillion-dollar deal Apple struck with Qualcomm last month to settle nearly identical antitrust claims? Josh Landau of the Computer & Communications Industry Association notes on the Patent Progress blog that the deal was structured as separate chip supply and licensing agreements, and speculates that Apple could now hold Qualcomm to the former while renegotiating the latter.

Cooper and Doug Wilson of Armond Wilson (more on him below) said that while anything is possible, it seems almost certain that Apple and Qualcomm would have bargained for the possibility of Koh's injunction, given the way the FTC trial unfolded.

“I can't for the life of me imagine that that isn't a contingency in the agreement,” Cooper said.

Cooper wonders if Intel will now reconsider its decision last month to exit the 5G market. Intel has already made a large investment in 5G research and development, he notes. And “under this ruling, Intel can demand a FRAND license” from Qualcomm.

Samsung: Ix-Nay on the Undred Million-Hay

Judge Koh has emphatically answered one question about her ruling: Yes, Qualcommpaid Samsung $100 million in 2018 “to extinguish all of Samsung's antitrust claims and to silence Samsung.”

Apparently that dollar figure had been confidential until Tuesday. Samsung's lawyers at Sheppard, Mullin, Richter & Hampton asked Koh on Wednesday to seal the number retroactively, calling it “highly sensitive and confidential” and saying it appeared “to have been inadvertently disclosed” in Koh's order.

Koh declined on Thursday, saying such payments played a central role in her findings of fact and conclusions of law. “Moreover,” she added, “courts have refused to seal wrongdoing because the wrongdoing itself is a matter of public concern.”

I'm guessing this will put a lid on any further sealing requests, but we'll have to wait and see.

Doug Wilson and Michelle Armond

Former Federal Circuit Clerks Come Full Circle

Michelle Armond and Doug Wilson met 15 years ago while applying for Federal Circuit clerkships. They would spend a year and a half clerking together for Judge Richard Linn. “It was really fun to be there, to work on important cases and be at the forefront of patent law,” Armond says.

The two went on to become partners at different intellectual property firms: Armond at California's Knobbe Martens, Wilson at Texas' Heim, Payne & Chorush.

But they've stayed in touch over the years, and now they're joining forces to open Armond Wilson, an IP firm that will focus on PTAB cases and, naturally, appeals to the Federal Circuit.

Armond and Wilson say the time is right to take advantage of a market shift that puts smaller firms on stronger footing. “PTAB litigation is now the forefront of patent litigation, but these cases are much different than traditional district court litigation,” Armond says. “You have smaller cases, they're highly technical, and they're immediately appealed to the Federal Circuit.”

“It doesn't take an army of lawyers to win an IPR, it just takes talent,” says Wilson. A small firm, with more flexible billing arrangements, “is an advantage in the IPR practice.”

I've got more details on their new venture here.

Section 101 Revision Gets a Revision

Sens. Thom Tillis and Chris Coons and Reps. Doug Collins, Hank Johnson and Steve Stivers have narrowed down their framework for Section 101 legislation into a draft bill. In fact, they've narrowed it a lot.

The framework released last month was something of a grab bag of ideas for resetting patent eligibility. But a number of them—including the USPTO's recent “practical application” approach—have now been discarded.

The draft legislation instead hews more closely to the current Section 101, while adding that claimed inventions should be considered as a whole, and that no implicit or judicial exceptions such as “abstract idea” or “natural phenomenon” will be recognized.

The tech industry will not be amused. Josh Landau calls the draft bill “fundamentally flawed” and says it would “create completely new uncertainties about what is and is not patentable.”

Conversely, Gene Quinn and contributors to IPWatchdog sound much more optimistic than they were when the initial framework was issued last month.

It still seems like early innings in this ballgame. Hearings have been set for June 4, 5 and 11 before Senate Judiciary's IP subcommittee. The press release announcing the draft states that it's “intended to solicit feedback and is subject to revision after additional stakeholder feedback and Senate hearings.”

Michael Best Adds to Japan IP Practice

Michael Best & Friedrich has added Arimi Yamada as a partner in the firm's IP practice group in Washington. Yamada was previously a founding partner at Typha IP.

Yamada's practice focuses on a variety of IP and patent matters for Japanese businesses with operations in the United States. “We are excited about this opportunity to strengthen our intellectual property capabilities for companies in Asia, specifically the Japanese market,” Glen Weitzer, chair of Michael Best's IP practice group, said in a written statement.

That's all from Skilled in the Art this week. I'll see you all again on Tuesday.