Consumers waging an antitrust class action against Qualcomm Technologies Inc. in San Jose have lost their bid to block any U.S. International Trade Commission orders that might exclude imports of Apple iPhones.

Qualcomm has asked the ITC to exclude iPhones that use Intel modem chips, saying they infringe three Qualcomm patents. The ITC hasn't ruled yet, but Administrative Law Judge Thomas Pender said at a June hearing that it's “very likely that there will be a violation found” when he issues an initial determination next month.

Consumers represented by co-lead counsel Susman Godfrey and Cotchett, Pitre & McCarthy asked U.S. District Judge Lucy Koh of the Northern District of California to enjoin Qualcomm from enforcing any ITC exclusion or cease-and-desist order. Koh is presiding over separate actions brought by consumers and the Federal Trade Commission alleging that Qualcomm's patent licensing and enforcement practices are anticompetitive.

Koh denied the injunction without prejudice Wednesday, saying the injury feared by the plaintiffs is far too speculative at this point.

“As plaintiffs appear to recognize, their purported harm depends upon a number of contingencies,” she wrote in a 22-page order. Those include a finding by Pender that an exclusion is in the public interest, affirmance by the full ITC, and sign off from the White House and the U.S. Court of Appeals for the Federal Circuit.

“This chain of inferences is too speculative to conclude that plaintiffs face an imminent risk of injury,” Koh wrote. “Given the various policy concerns at issue, courts are particularly ill-equipped to forecast how either the ITC or the president will strike the appropriate balance.”

The plaintiffs cited a report that estimated an exclusion order would ban 29.3 million Apple smartphones, causing an average $47 price increase.

While ITC staff has recommended that one patent be found infringed, staff also cautioned that future iPhones with 5G technology should be exempt from any ban, Koh noted. And Pender said at the hearing that he could not predict whether “the public interest will be sufficient to outweigh” a patent violation.

Koh's ruling hands a win to Qualcomm and its attorneys from Keker, Van Nest & Peters; Cravath, Swaine & Moore; and Morgan Lewis & Bockius. Keker Van Nest partner Robert Van Nest signed Qualcomm's opposition to the injunction.

The parties are scheduled to argue class certification before Koh next month, with trial scheduled next summer. The FTC case is scheduled to go to trial in January. Apple Inc. and its contract manufacturers are also bringing patent and antitrust claims against Qualcomm in San Diego federal court. That case is approaching a trial near the end of this year.