Tuesday, September 13, 2022

In Apple-Ericsson ITC discovery dispute, Fair Standards Alliance is unfairly lumped together with ACT | The App(le) Association

On the U.S. International Trade Commission (USITC, or just ITC) docket system I've finally found a public redacted version of Apple's opposition to Ericsson's and the Office of Unfair Import Investigations' (OUII, or "ITC staff") motions to compel with respect to lobbying entities that submitted public-interest statement seeking to dissuade the ITC from instituting an investigation of Ericsson's standard-essential patent (SEP) complaint. First, the document:


As I had assumed, the ITC staff correctly summarized Apple's opposition to the request for information on its monetary and non-monetary contributions to ACT | The App Association (more appropriately dubbed "Apple Association") and the Brussels-based Fair Standards Alliance (FSA): Apple basically just argues that the ITC itself had solicited public-interest statements upon receipt of Ericsson's complaint, and that the statements that ACT and the FSA filed are no longer relevant at this procedural stage.

As Ericsson and the ITC staff note, those public-interest statements are still on the docket and could be relied upon in the further process. Apple's lawyers say they won't reference those documents. That's interesting. It seems to me that Apple just wants to avoid discovery on the nature and stature of its relationship with those organizations. And it's unavailing because even if Apple itself didn't reference those documents, the ITC would still have them in front of it.

Apple could try to moot this discovery dispute by ordering ACT and asking the FSA to formally withdraw them. But it might be too late for that, and it would look at least somewhat awkward. I guess that's why Administrative Law Judge (ALJ) Bryan F. Moore will now have to rule on the motions to compel. The staff's motion has an advantage of Ericsson's: the staff is not party to an agreement excluding discovery of third-party advocacy efforts, though this may not even be a problem for Ericsson as ACT and the FSA actively participated in this ITC investigation by way of those public-interest statements supporting Apple.

Apple argues in this wider context that those discovery requests are meant to discourage third parties from raising concerns over the public-interest impact of potential exclusion orders (i.e., U.S. import bans). But that cannot be reasonably claimed with respect to true third parties. And when there is a submission by a potentially false third party, then it's absolutely in the public interest to shed some light on its relationship with a respondent. Let's not forget that patent enforcement, too, is in the public interest, as the Federal Circuit has recognized. Anything that is undertaken to thwart patent enforcement must withstand scrutiny.

Like in this post's headline, I wish to make it clear, however, that ACT and the FSA represent two fundamentally different cases. I don't mean to say that Ericsson's and the ITC staff's discovery requests are stronger with respect to ACT than the FSA. Strictly looking at it from the angle of a discovery request, there isn't a difference. They furthermore have in common that Apple supports them both, and that they support Apple--which one may or may not agree with. But for some other reasons there's a difference like day and night between the two organizations:

  1. The Fair Standards Alliance may or may not be disproportionally funded by--and beholden to--Apple, but it does have an exhaustive membership directory, and almost every single member is clearly an implementer of SEPs. This contrasts starkly with ACT's unverifiable claim of representing thousands of small app developers, while listing only a few dozen companies, half of which are service providers and therefore won't realistically have to license SEPs anyway.

  2. The FSA focuses on SEP licensing (undoubtedly representing implementers' interests in low royalties and weak enforcement), while ACT engages in advocacy on App Store issues against the interests of the very constituency it claims to represent. The equivalent of what ACT is doing in the App Store context would be for the FSA to claim to represent SEP holders (while actually being paid by Apple and other implementers), arguing that it's actually in the interests of SEP holders to make less money (just like ACT claims app developers are better off if Apple can rip them off and tyrannize them as it pleases) because it's good for the wider ecosystem.

  3. The FSA is not among the supporters of the Save Our Standards campaign that sponsored and orchestrated an interview with a small company that claimed to be concerned about SEP licensing problems but in reality doesn't.

  4. The FSA doesn't commission phony polls according to which a vast majority of voters want the government to set rules for SEP licensing in the supply chain.

  5. The FSA holds a general assembly every year where most of the members are present. When ACT publishes pictures of its events, you see very small numbers of people--and mostly ACT staff and service providers.

  6. While I have disagreed with the FSA in some contexts (such as Continental v. Avanci) and will likely do so again, the FSA's style is far more reasonable than ACT's. Case in point, well-known licensing expert Eric Stasik who often testifies on SEP holders' behalf even suggested on LinkedIn that the SEP holder camp poach the FSA's executive director, Evelina Kurgonaite, while I haven't seen similar suggestions with respect to ACT's staff.