The KFTC’s Extraterritorial Overreach

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The KFTC’s Extraterritorial Overreach By James F. Rill & John M. Taladay*

Introduction

The Korea Fair Trade Commission’s recent decision against Qualcomm is notable as one of the most significant examples of intentional territorial overreach by an antitrust enforcer in memory.[1]  The KFTC’s remedy ignores principles of jurisdiction and comity by ordering global changes to Qualcomm’s licensing and sales practices, even where those changes affect commerce that has no cognizable effect on the welfare of Korean consumers.  The legitimate enforcement interests of every other global competition and IP agency are virtually ignored; the KFTC defines how commerce for the licensing of Qualcomm’s IP rights and sales of its chipsets will occur around the world.  This outcome is not unintentional; the decision contains an explicit provision to protect the interests of Korean corporations operating abroad.  In short, the KFTC has appointed itself as a global IP police force projecting questionable competition standards well beyond its borders to protect its own domestic Korean producers.  In so doing, the KFTC’s decision undermines the legitimate interests of other jurisdictions that it invades.

KFTC’s Remedy Sweeps Well Beyond Its Legitimate Interests

The KFTC imposes sweeping, worldwide behavioral remedies that restrict or eviscerate Qualcomm’s rights under its non-Korean patents, compel Qualcomm to amend or enter into contracts outside of Korea that it o…

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