Wednesday, September 7, 2022

U.S. government officials insist on knowing how much 'monetary or nonmonetary consideration' Apple provides to ACT | The App(le) Association: public version of motion to compel

This is, for the most part, a follow-up to last Friday's post entitled Apple refuses to cooperate with U.S. government agency seeking information on its funding of, and influence over, ACT | The App(le) Association: ITC investigation of Ericsson's 5G complaint. The Office of Unfair Import Investigations (OUII, commonly referred to as "the ITC staff") has now been able to provide a public redacted version of its related motion to compel (this post continues below the document):

The interesting parts here are interrogatories no. 34 and 35. Interrogatory no. 34 is about parties that did submit a declaration or public interest statement in support of Apple's defenses against Ericsson, and no. 35 is about parties Apple approached about it but who declined. It seems that one or more independent parties declined to support Apple, which is why Apple is stonewalling, but ACT obviously did its master's bidding, so the relevant interrogatory here is no. 34.

The introductory sentence points to a footnote, the first two items of which are:

i. ACT, the App Association (ACT, The App Association’s Corrected Statement on Public Interest filed Feb. 2, 2022 by Brian Scarpelli);

ii. Brian Scarpelli;

Brian Scarpelli is ACT's Senior Global Policy Counsel and submitted ACT's public interest statement in the Ericsson 5G SEP investigation. I met him at an ACT event in Berlin three years ago, and I have no problem with him personally--just with ACT because that organization works against small app developers like me while untruthfully claiming to represent us.

So, the ITC staff--which notes in its motion what I said in my previous post, which is that quite obviously an agreement between Ericsson and Apple not to perform discovery into third-party advocacy doesn't bind government officials--wants to know the following:

a. Apple’s historic and current relationship with the organization or individual.

b. Apple’s direct or indirect monetary contributions or payments or any other nonmonetary consideration to the organization or individual over the past five years.

c. Apple’s involvement with the organization, its management, the appointment or hiring of its leadership or employees, and its decision-making over the past five years.

d. Any communications between Apple, or Apple’s attorneys, and each organization or individual related to public interest in this Investigation, the 1300 Investigation, or the 1301 Investigation [the 1300 and 1301 investigations are Ericsson's non-SEP cases], including (but not limited to) a description of the dates, times, content, and persons involved in any such communication.

e. The role of Apple, or Apple’s attorneys, in approving, preparing, reviewing, or editing the statement or declaration.

f. The three Apple employees most knowledgeable about Apple’s response to this Interrogatory.

Apple then raises a multiplicity of objections, alleging that the interrogatory is vague, overbroad, ambiguous, confusing, unduly burdensome, you name it. According to the ITC staff's motion, all that Apple has said in response to that interrogatory is that Apple is a dues-paying member of the Fair Standards Alliance and a "sponsor" of ACT. Apple says it didn't specifically send money to ACT (or the FSA, but the FSA is a "real" industry group as opposed to an astroturfing operation) in connection with that statement. But I suspect that Apple is the primary sponsor of ACT. And there isn't even the slightest indication of ACT having any dues-paying members.

The ITC staff deems Apple's objections unavailing. For instance, "to the extent any of these terms and phrases were in fact vague and ambiguous, the Staff has discussed with particularity the information it was seeking during the multiple [discovery committee meeting] and meet and confer conversations, as well as in the parties’ correspondence on these issues." Also, the ITC staff notes that it's simply most efficient to ask Apple questions about those relationships as opposed to the staff talking to all those organizations and individuals.

The best thing to do would simply be to defund ACT. I really wonder why the decision makers in Cupertino believe they're actually getting value out of ACT, unless offending app developers (by falsely speaking in our name) has value in and of itself. Policy makers in D.C. and Brussels largely know already that ACT is not the App Association, but the Apple Association. ACT's claims--such as that small app developers face SEP licensing problems--often don't withstand scrutiny.

But as long as Apple uses ACT as a tool, it must answer questions--at least the U.S. government's legitimate questions.

In other Ericsson v. Apple news, Apple won a largely favorable procedural decision in the smallest one of Ericsson's three cases: Administrative Law Judge Cameron Elliot granted in part a motion to strike some late-disclosed theories. I've uploaded the PDF to DocumentCloud. ALJ Elliot is very strict and extremely meticulous. I'm not taking a position on whether I agree with his conclusions, but I am impressed with how precisely he differentiated between the parts of the expert testimony in question that he allowed to be presented and the parts he decided to strike. Apple wanted long passages stricken, but ALJ Elliot applied a jigsaw rather than a chainsaw.

Last month, Ericsson dropped--in response to a claim construction order--one entire patent and most claims of a second patent from that investigation. At around the same time, Ericsson won two out of three pretrial decisions. And previously ALJ Elliot described Apple's tactics as "puzzling." He's tough on both parties, but mixed results generally benefit defendants as complainants have to overcome all hurdles. It's probably fair to say that investigation no. 337-TA-1301 is less likely that some other cases to decide the dispute. The ITC SEP case still looks very interesting, the Colombian injunction continues to be enforced, and next week the Munich I Regional Court will hold a first hearing in an Ericsson v. Apple case.

Tangentially related to the ITC situation is the fact that, according to the New York Times, Apple's upcoming iPhone 14 "has gone from being a product that is designed in California and made in China to one that is a creation of both countries." This is not irrelevant in the ITC context, as the ITC's purpose is to protect the U.S. domestic economy from patent-infringing imports.