Sunday, December 4, 2022

UK Intellectual Property Office acknowledges 'widely reported link between ACT and Apple' ahead of panel on standard-essential patent enforcement

Astroturfing is a disease, and relentlessly exposing it is the cure. I make my little contribution to the fight against astroturfing, and I'm grateful to several Members of the European Parliament for having officially complained to the European Commission about certain manifestations of the problem (with more to come).

ACT | The App Association, a group that claims to represent the interests of small app developers and IoT startups but is in reality just a lobbying front for (and overwhelmingly funded by) Apple working against app developer interests and promoting the devaluation of standard-essential patents (SEPs). On Friday I noticed that ACT | The App(le) Association will host a panel on "global licensing of SEP's [sic] and its broader impacts" on Tuesday (December 6). They announced two speakers:

I informed Professor Nazzini of what ACT is all about, so he knows about the astroturfing problem, but he may be more interested in whatever relationship he has with Apple, just like Charles River Associates recently published a paper commissioned by ACT (i.e., paid for by Apple). Obviously, Professor Nazzini's participation in that event means that one has to view him as an Apple ally (to say the least) whenever he speaks out on, or writes about, SEP policy.

However, I don't consider it appropriate for a government agency to engage in anything that could be interpreted as lending legitimacy to astroturfing. To be clear, there would be nothing wrong with the UK Intellectual Property Office (UKIPO) speaking

  • at an Apple event that is properly labeled as such (provided that it then also speaks at events hosted by various other companies, which would keep a UKIPO official busy for some time),

  • at an event hosted by a lobbying agency or other service provider (such as Charles River Associates) that takes money from Apple (again, provided that the actual backers are properly disclosed and that the other side of the debate will get equal treatment), and

  • even at an ACT event if ACT finally admits that it is not an "App Association" but simply an Apple Association.

While ACT itself is probably not going to make that admission until it is dissolved, I appreciate that that the UKIPO's press office responded to my inquiry on Friday. A spokesperson for the UKIPO said:

"We can confirm that an IPO representative will participate in a third party organised event on 6 December 2022. Neither the IPO, or its representatives, are affiliated to ACT. We are also aware of the widely reported link between ACT and Apple." (emphasis added)

That awareness was presumably lacking when two members of the busy cabinet of EU competition and digital policy chief Margrethe Vestager met with ACT shortly before Bloomberg reported on what ACT is all about.

The UKIPO spokesperson went on to explain:

"The IPO’s aim is to gather robust evidence on SEP policy through good evidence gathering principles. This means reaching a wide audience of industry and sectors across the UK. At each stage of engagement in this area, we continue make clear the need for appropriate evidence before the government proposes any policy interventions.

To date, we have heard extensively from SEP holders and major implementers. We also need to reach others including smaller businesses, researchers and key sectors such as the automotive industry." (emphasis added)

Well, if the UKIPO wants to engage with smaller businesses, ACT is certainly not the right platform. But to their credit, they have acknowledged the ACT-Apple link. Now they just shouldn't believe that Apple is paying ACT to represent small business interests. Much to the contrary, ACT is the enemy of small app developers in the App Store antitrust context.

Small businesses rarely have to deal with SEP issues anyway. ACT has been desperately trying for a while to find any example of a small business that actually received royalty demands or threats of litigation, which is why ACT--under the Save Our Standards label--presented a service provider as a potential victim of SEP abuse, but the example that the company in question gave was clearly an app that couldn't infringe SEPs.

The UK IPO statement concluded as follows:

"We are currently participating in a range of engagements including speaking opportunities from implementer representatives, standard development organisations and other relevant events.

"We continue to engage with all parties with an interest in SEP policy and the wider regulatory environment so we can achieve a balanced approach for innovation in the UK."

Laudable though the objective of engaging with all sorts of stakeholders may be, astroturfers do not deserve the participation of government officials in their events, much less as keynote speakers.