In the latest FOSS Patent report covering the Qualcomm-Apple legal war, owner Florian Mueller delivers a powerful opening statement: "There's a lesson for life that Qualcomm may have learned in recent weeks as an unintended side effect of its dispute with Apple: if smart judges figure out whom they can trust, the facts are not for sale."

Mueller recaps some of the recent legal battle cases with Qualcomm by noting that "Qualcomm's patent litigation campaign against Apple (and, by extension, chipset maker Intel) has suffered a few setbacks already. The first two judicial decisions against infringement complaints brought by Qualcomm came down in Washington, D.C. (United States International Trade Commission) in September and in Munich (Munich I Regional Court) in October. In both cases, Qualcomm's attempts to outspend Apple and Intel on expert testimony backfired."

Getting to the heart of the matter of today's report, Mueller notes that "Retired ITC ALJ (Administrative Law Judge) found "Qualcomm's non-fact witnesses, especially its economic witnesses, to be far less credible, for a myriad of reasons, including the likelihood of bias, the speculative and conclusory nature of their testimony, and the number of unsupported assumptions [the ALJ] found to be inherent with the testimony they offered."

The one Qualcomm expert ALJ Pender criticized most harshly is J. Gregory Sidak, who is running his own consulting firm named Criterion Economics:

"The amount of money paid to Mr. Sidak, before the current investigation, was approximately $1 million over several years and the company he owns has invoiced between $3 million and $4 million just for this [ITC] investigation [of Qualcomm's first complaint against Apple] alone. [...] In my almost 39 years of practicing law, I have never seen or heard of anything even approaching this level of financial commitment by a witness to a party.

Moreover, even absent this financial commitment, I was troubled by his testimony, for example his testimony about there being enough iPhones without the introduction of any new models in 2018 [...] ignored reality.

From his financial relationship with Qualcomm bias may be presumed, and I find it would be an abuse of my discretion to give any material credibility to this witness or his findings.

I also note the [ITC] Staff questioned his credibility twice during their discussion of the Public Interest, and that I noted it above." (Emphasis added)

Florian Mueller adds that he heard at the most recent Munich trial that Judge Dr. Schoen made an even more scathing remark about one of Qualcomm's expert witnesses in the German case.

Based on hearsay, the judge ultimately resisted the urge to call up the expert's university to complain because someone who submits, to a court of civil jurisdiction, an expert report that doesn't contain a single scientific statement "shouldn't be educating our young people." The related passage of the redacted Munich ruling doesn't contain such rhetoric, but in their purely factual it's no less dismissive.

At some point in time Qualcomm has to realize that they're quickly losing credibility with the court and the public reading about paid witnesses being chastised by the court in the strongest language. 

There's a lot more to Florian Mueller's report that you can check out here including two full Scribd documents that legal minded readers will certainly appreciate reviewing.

Between a Munich Court tossing out one of Qualcomm's patent infringement cases against Apple, an ITC judge slamming Qualcomm over a paid witness and Qualcomm desperately trying to stop the FTC ruling that could easily put a bullet in Qualcomm's legal case, Apple legal has to be happy with how their battle with Qualcomm is going.

What is more disturbing for some is how Qualcomm is now trying to re-frame their case before the court. We noted in our Saturday legal news report that "Now Qualcomm is changing their tune in fear of having to prove their patents remain valid. Qualcomm's attorney insisted on Friday that "the central issue of the case involves licensing agreements between the technology giants and not necessarily the patents individually."

That was said after the Munich Court threw out their Patent Infringement case against Apple. While it's still far too early to forecast a final winner is in the Qualcomm-Apple legal war, changing their legal strategy at this point is looking like they're on the ropes.

In the end, stay tuned, there's likely a lot more to cover in this case and we know that Florian Mueller of FOSS Patents will keep us all up to date as meaningful developments unfold in this battle.