Two Errors in the Ninth Circuit’s Qualcomm Opinion
On August 11, 2020, the Ninth Circuit handed down its opinion in Federal Trade Commission v. Qualcomm Inc., reversing the district court’s judgment in favor of the FTC. This essay argues that the Court of Appeals made two significant errors in its analysis. The first relates to the court’s failure to understand how Qualcomm’s conduct in the market for patent licenses affects competition in the complementary market for smartphone chips. The second concerns the court’s statement, at odds with the D.C. Circuit’s landmark decision in Microsoft, that if conduct “is not anticompetitive under § 1, the court need not separately analyze conduct under § 2.”
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