Antitrust laws become new front in mobile wars

A new front is opening in what’s been dubbed the smartphone wars: This one involves countries, not companies.

Korea and China are adopting antitrust policies that may require companies such as Apple and Qualcomm to license inventions to rivals more easily and cheaply, potentially giving Asian companies a leg up against foreign competitors. Brazil and India are considering similar paths.

The clampdown on patents has the potential to alter the balance of power in the global mobile phone industry, which generated $412 billion last year, according to IDC. These new rules may weaken the ability of Apple, Microsoft and Qualcomm - typically among the top 15 U.S. patent recipients each year - to compete in China, the world’s largest mobile phone market, and other countries that follow.

“We’re going back to the Cold War and the domino theory,” said Bradley Lui, an antitrust lawyer with Morrison & Foerster in Washington. “The authorities in China see the potential use of patents that might affect companies in China, including state-owned enterprises. It might be an impetus for drawing rules more broadly than we would in the U.S.”

Asian regulators were spurred by the smartphone wars, in which tech giants battled over billions of dollars on four continents for more than four years. Foreign governments including Korea and China have been looking more closely at their patent policies, emboldened by debates in Washington over whether patents hinder rather than spur innovation.

“The domestic debate that is supposed to be specific to our country is being latched on to by foreign governments,” said Sean Murphy, Qualcomm’s international government affairs counsel. “It’s giving them justification to take action.”

Korea’s restrictions on patents went into effect in December. It’s home to Samsung, which battled Apple for years over claims it copied the iPhone’s “look and feel.” China’s rules are expected by Aug. 1. Brazil and India are only beginning to develop policies, a National Academies report said.

U.S. trade officials declined to comment for this article.

The Korea Fair Trade Commission said its policy is to “improve consistency” in antitrust law enforcement and block patent-licensing firms, which are often demand high royalties for incremental features.

The agency said in a Dec. 24 statement that “domestic companies are expected to be protected from the abuse of patents, as the amendment will provide a basis for effectively regulating global companies’ abuse of monopoly with patents.”

China’s proposals, like Korea’s rules, have two main components. One involves patent values for technology included in industry standards, such as Wi-Fi. The other may require unique features - like Apple’s slide-to-unlock feature, or Microsoft software that synchronizes calendars - to be licensed by others if considered “dominant” or “essential.”

Some companies are already demanding a roll back and want a return to their ability to sue each other. They argue that there’s been no evidence that patents are being misused, so there’s no need for regulation.

“The system that is in place is a system which has been going on for many years and it is working,” said Kasim Alfalahi, Ericsson AB’s chief intellectual property officer. “It is built on contribution and global agreements to cover products sold around the world with patents that are being issued all the time to companies like Ericsson.”

Microsoft, Apple and Intel are among the companies backing rules on standard-essential patents because it would mean lower royalties they pay out for fundamental technology.

The arguments are different on patents for unique features that command higher rates or aren’t licensed at all. Companies that came up with ideas on their own, without standards-setting boards, should be able to control who can use that propriety technology, Apple has said in U.S. court filings in its dispute with Samsung.

In the United States, a judge said Apple couldn’t force Samsung to remove features from its phones but Apple may seek additional damages. In China and Korea, it would be the government making the decision that Apple must license the patented feature to any handset manufacturer.

“If somebody builds a product and that product becomes widely deployed, it’s reasonable to say ‘We build that product, we innovated and we should be able to control our intellectual property,’” Lui said. “Most people in the U.S. would view it that way.”

The Chinese and Korean officials are just formalizing what 100 years of legal precedent has done in the U.S. and Europe, and a lot will depend on how the governments implement the rules, antitrust lawyers said.

“They’re new to this area and they take it very seriously,” said Jim O’Connell, of Covington & Burling in Washington. “When you do too much, you end up ultimately hurting yourself because you diminish incentives to innovate. That’s a balance that can be tricky to strike. The Chinese agencies are wrestling with it, too.”

In the United States and Europe, regulators say “they’re not there to fine tune commercial disputes, they’re there to make sure competition is preserved,” Lui said. “The governments in Korea and China may take a different view based on their own economic interest.”

Bloomberg