Qualcomm has had good luck so far in Ninth Circuit judicial draws in its dispute with the Federal Trade Commission. The three-judge panel that heard its motion for a stay pending appeal last summer? Two Republican appointees. The class certification appeal last fall? Three GOP appointees.

Now the panel that will hear the big kahuna—the merits appeal Thursday from U.S. District Judge Lucy Koh's bombshell antitrust ruling—has been chosen. Ninth Circuit Judges Consuelo Callahan and Johnnie Rawlinson plus visiting Judge Stephen Murphy III of the Eastern District of Michigan will decide whether Qualcomm must license its standard-essential patents to chipmaking rivals such as Intel, and stop threatening to disrupt modem chip supply when smartphone makers balk at Qualcomm's royalty rate.

Callahan and Murphy were appointed by President George W. Bush. Rawlinson was appointed by President Bill Clinton.

None has an obvious track record with high-stakes antitrust cases. It won't be Callahan's first patent case, though. She wrote Kimble v. Marvel Entertainment, which reaffirmed the rule that a patentee generally cannot contract for royalties to be paid after the expiration of a patent. The Supreme Court affirmed.

Murphy's background as an in-house litigator at General Motors before taking the bench in the early 2000s makes him an interesting wild card. Automotive industry trade groups and suppliers are among the amici curiae urging the court to affirm Koh's ruling that Qualcomm must license at the supplier level.

Arguing Thursday for Qualcomm will be Tom Goldstein of Goldstein & Russell. Qualcomm's primary argument is that it has no antitrust duty to deal with competitors such as Intel and MediaTek. Under the Supreme Court's Trinko and Aspen Skiing decisions, antitrust law trumps private competitive decisions only when a monopolist abandons profits, or if its only purpose is to damage competitors, Qualcomm argues in its appellate briefs. Neither situation applies in its dispute with the FTC, Qualcomm says.

Qualcomm did promise standard-setting organizations that it would make all of its standard-essential patents "available to all applicants" on fair, reasonable and non-discriminatory (FRAND) terms. Qualcomm argues "all applicants" means all smartphone makers that implement the technology, but Koh had pointed to Ninth Circuit case law that the FRAND commitment applies to "all comers." That encompasses chip suppliers, she ruled.

Deputy Attorney General Michael Murray of the antitrust division is expected to argue for the government that disrupting Qualcomm's licensing practices could harm the development of 5G technologies and compromise national security.

The FTC will be represented by Brian Fletcher, a former assistant to the solicitor general who is special counsel to the FTC. The agency argues that Aspen and Trinko don't apply when a monopolist "breaches its own voluntary commitments" to license patented technology used in industry-wide standards.

FTC further argues that Qualcomm doesn't present smartphone makers with patent lists, claim charts, or any other information that drives ordinary negotiations. "Instead, OEMs agree to pay Qualcomm's royalties only because Qualcomm threatens to cut off their chip supply if they do not," FTC argues.

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