The original version of this report was published on the biweekly IP briefing Skilled in the Art.

The Federal Trade Commission and Qualcomm brought their antitrust fight to the U.S Court of Appeals for the Ninth Circuit on Thursday. Ninth Circuit Judges Johnnie Rawlinson and Consuelo Callahan and U.S. District Judge Stephen Murphy III, visiting from Michigan, entertained an hourlong argument. Here are five takeaways on the proceedings from IP reporter Scott Graham.

1. Qualcomm is going to get at least a partial victory. This panel sounded extremely cool to the FTC's primary theory of antitrust liability, that Qualcomm abused its dominant position as a modem chip supplier to extract unreasonable royalties from smartphone makers. "Is that just maybe over-capitalistic, but not necessarily anti-competitive?" Callahan asked at one point, summarizing the tenor of the questioning.

The bottom-line question seemed to be whether the court will give U.S. District Judge Lucy Koh a second try on the FTC's alternate theory of liability, or end the case right now. Qualcomm attorney Tom Goldstein of Goldstein & Russell seemed to smell blood in the water. "I think the parties agree that everyone would benefit if the court doesn't stop with the duty-to-deal question, and does address the fundamental issue of whether there's a harm to the competitive process," he told the court.

2. Qualcomm admitted the error of its ways (at least for purposes of the argument). I've said for the last year that Koh's painstaking fact-finding would be the toughest obstacle for Qualcomm on appeal. Goldstein wisely didn't force the issue.

"Do you disagree about the assumption that you have monopoly power?" Rawlinson asked him at the outset of the hearing.

"We do not," Goldstein replied. "In this court, we're trying to be very careful and conscious of the clearly erroneous standard as it comes to factual findings."

The judges looked relieved, and Goldstein was freed up to focus the rest of his argument on what he characterized as Koh's legal error.

3. Was the Supreme Court watching? It was hard not to imagine that the advocacy on display Thursday would play well at 1 First St. Goldstein was his usual effective self, while the FTC's attorney, Stanford professor and former Assistant to the Solicitor General Brian Fletcher, admirably parried hostile questions while steering back to the FTC's strengths. "I think you're doing great," Murphy told him at one point.

4. The Justice Department got a chilly reception. DOJ is opposing the FTC as Qualcomm's amicus curiae, something Rawlinson found "really interesting." Deputy Assistant Attorney General Michael Murray of the Antitrust Division argued that Koh entered her injunction "without proper consideration of the public interest, including national security concerns."

Rawlinson asked how national security plays into antitrust law. "Is there a case that supports that proposition, or is this a policy argument?" she asked.

"You haven't offered any market analysis or any sort of financial evidence" to support a national security argument, Murphy added.

Murray reminded the court that Defense and Energy Department officials filed declarations warning of the dangers of disrupting the 5G licensing landscape. He said DOJ simply wants any injunction to be narrowly tailored.

"How could the injunction be more narrowly tailored, from your perspective?" Rawlinson asked.

Murray didn't want to go there. "That would be up to the district court after hearing additional…"

"But what would your position be?" Rawlinson pressed. "Do you have a position as you stand here today?"

"I can't enumerate all of our suggestions at this point," Murray began.

"Can you enumerate one?" Rawlinson asked.

Murray said excluding 5G licensing and standard setting, which were beyond the scope of the trial, would be one possibility.

5. Why are we here? As a district judge, Murphy has presided over a handful of patent cases. And he knows which court they get appealed to. "Why don't we let the OEMs exercise their rights in patent law to file predatory pricing, monopoly, abusive patent claims, whatever?" he asked Fletcher. "And then the Federal Circuit can deal with it, who does this stuff all the time."

Fletcher once again steered back to the factual record. "What OEM after OEM testified is that we can't do that, because when we try to invoke our ordinary patent law remedies, Qualcomm says, 'Stop it, or we'll stop selling you chips.'"