With respect to its App Store terms and policies, Apple is now arguably the most prominent antitrust defendant in the tech universe. Simultaneously, Apple is pressing antitrust charges--through private litigation--particularly in connection with abusive patent-leveraging practices. While the issues are very distinct, having the shoe on one foot today and on another foot tomorrow requires Apple, which is represented by different law firms (Wilmer Hale against Softbank-owned Fortress Investment, Gibson Dunn and Orrick against Epic Games and various class action plaintiffs), to espouse a more flexible approach to antitrust enforcement in one context than in the other. Case in point, a Ninth Circuit panel's wholesale acquittal of Qualcomm took a more restrictive and limiting perspective on how to apply the antitrust laws (particularly--but not only--in connection with patents), and the panel opinion contained legal statements that Apple can and does cite to as it defends itself against Epic, but complicate matters in its joint case with Intel against Softbank's Fortress.
In the summer, San Francisco-based Judge Edward M. Chen of the United States District Court for the Northern District of California granted Fortress's first motion to dismiss Apple and Intel's complaint, but also allowed the plaintiffs to amend the complaint. The absolute low of the Trump Administration's involvement with patent policy was when the Department of Justice intervened on behalf of that foreign-owned patent troll group that has been bringing many dozens of vexatious lawsuits against not only Apple, but also others, notably Google. That was the very opposite of "Make America Great Again." It was anti-American, and unfortunately the matter doesn't have the prerequisite high profile that lawmakers would have raised questions (plus, there are some Democrats on Capitol Hill who are beholden to the world's patent trolls, such as "Looney Coons").
Apple and Intel amended their complaint, and Fortress--not unexpectedly--brought a renewed motion to dismiss, on which the court will probably decide in December. Fortress alleged that Apple and Intel had failed to cure the deficiencies identified by the court in its order to dismiss without prejudice.
Last night, Apple and Intel filed their opposition to Fortress's second motion to dismiss (this post continues below the document):
The #1 question here is market definition--which is just as essential to antitrust law as claim construction is to patent law. Fortress claims Apple and Intel's amended complaint still lacks the prequisite specificity, and the DOJ had also focused very much on that one earlier this year. But Apple and Intel point to how much more detailed their amended complaint is (it's 77 pages longer than the original complaint), and that it's now not just about an "Electronics Patents Market" but about 13 patent markets. And what will likely benefit Apple and Intel in this regard is that Judge Chen's order on the first motion to dismiss had states that the law doesn't require an absolutely clear-cut market definition in cases where there are very specific allegations of anticompetitive effects. "Rough countours" of a market have been deemed sufficient in such cases.
If the amended complaint survives, Apple and Intel wish to amend it as one Fortress subsidiary, VoiceAge EVS, sued Apple just after the filing of the amended complaint (no coincidence if you ask me) over five LTE patents. Apple and Intel say that the related patent transfer was made in an effort to circumvent FRAND licensing obligations.
Apple & Intel v. Fortress is not only about standard-essential patents (SEPs). Most of Fortress's lawsuits are about non-SEPs. But when Apple joined Intel (which had previously brought a complaint, but withdrew it in order to refile together with Apple), SEP-related allegations became part of the case. In that context, the Ninth Circuit's FTC v. Qualcomm panel opinion is particularly unhelpful, but the issues in the Fortress case aren't exactly the same. For instance, never did the FTC (or Apple) allege that Qualcomm sought to evade FRAND obligations by means of patent transfers.
Two organizations have filed amicus curiae briefs in support of Apple and Intel's opposition to the motion to dismiss: the Fair Standards Alliance (FSA) and ACT | The App Association. Apple and Intel are members of the FSA, and corporate sponsors of ACT. ACT claims to have thousands of smaller companies as members, though it's another question how strongly involved and committed those "members" really are, given that many years ago a professor and former White House technology policy adviser (under Clinton) told me he just filled out a web form and was accepted--no payment or anything. Also, for a long time ACT used to promote the interests of patent holders, not those of implementers. By contrast, the FSA has several dozen corporate members, of different sizes but all of them significant and some of them among the world's largest tech companies (such as Microsoft and Google). The FSA has been very consistent about SEP policy. Fortress didn't want the FSA to file an amicus brief, at least not without getting to review it beforehand, but the FSA has now filed a motion for leave and I guess the court will grant it (the document below contains both the motion for leave to file and the actual amicus brief):
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