Ericsson says Apple 'walk[ed] back its agreement to accept Ericsson's [5G patent licensing] offer if it is confirmed as FRAND' by Texas court

If both Ericsson and Apple are sincere in this regard, the United States District Court for the Eastern District of Texas--whose Chief Judge Rodney Gilstrap decided on the structure of the dispute and the schedule two weeks ago--may become the center of gravity of their patent dispute. While no single court anywhere in the world is going to set a license fee for non-standard-essential patents, it would put the parties much closer to an agreement if the terms on which Apple licenses Ericsson's SEPs (up to 5G) were set. It's hard to imagine they couldn't then easily agree on the rest. A complete agreement on SEPs and non-SEPs would result in the dismissal of roughly three dozen lawsuits in at least half a dozen countries.

That's a big If, though. Not with respect to Ericsson, which says that $5 per device (with Apple probably having missed out on the opportunity to get a $1 per-unit early-signing bonus) is a fair, reasonable, and non-discriminatory (FRAND) rate. The Swedish company undoubtedly wants to conclude a license agreement as soon as that one--a rate it publicized a while ago--has been blessed by the Texas court. What's unclear here is Apple's agenda.

Actually, Ericsson's lawyers are not in doubt about what Apple is up to. Here's what they told the Texas court in a filing made yesterday:

"Anxious to avoid the consequences of rejecting Ericsson’s FRAND offer and infringing Ericsson’s patents, Apple asked various courts worldwide to stay or dismiss Ericsson’s patent infringement cases by pointing to this litigation and representing that Apple’s agreement to be 'bound' effectively mooted the other cases. [...] Apple’s strategy has become apparent. Apple wants to tell courts around the world that it is 'bound' by this [Texas] case in an attempt to avoid the consequences of its infringement and rejection of Ericsson’s FRAND offer, but despite Apple’s contrary representations, Apple appears unwilling to actually be 'bound' to perform under Ericsson’s offer if Ericsson’s offer complies with FRAND—as will be determined by this case."

The current situation is similar to the one in January when Apple proposed to have everything (at least everything related to SEPs) resolved in Texas--until Ericsson asked Apple to make a legally binding commitment to that. But this time around, Apple may not be able to avoid coming clean one way or the other.

At a mid-March hearing, Apple made it sound like they would accept a global SEP portfolio rate to be set by the Texas court as the resolution of the SEP part of the dispute. In jurisdictions like the UK and Germany, the courts just enjoin an implementer unless it takes a global license. In the U.S., courts don't rule on foreign patents unless both parties really want them to. That's why Judge Gilstrap specifically asked:

"Is it either party's request of the Court that this Court set an appropriate FRAND rate for non-U.S. patents as a part of either as stand-alone patents or as a part of a portfolio?"

WilmerHale's Joseph "Joe" Mueller, one of Apple's absolutely favorite litigators, appeared to make an unequivocal commitment to making the Texas case the one to resolve them all (apart from non-SEPs, of course):

JOE MUELLER (FOR APPLE): "It is, Your Honor. And to be clear, this is an issue where consent of the parties is, we believe, necessary. And we understand that Ericsson has consented to Your Honor and this Court setting global FRAND rates; and on that basis, Your Honor, we think the efficient adjudication of the parties' global dispute would be to do exactly that.

What we're doing in our case before Your Honor is saying if Ericsson was genuine and sincere in what they said was the most efficient way to try to adjudicate these types of disputes, let's do it. Let's do it here. We're ready to go. We're ready to engage on the merits in a very expeditious fashion.

"So the short answer is yes, we're prepared to do it, and we are prepared to do it on basis that Ericsson in the past has said exactly the same thing."

Given that parties are always bound by a court ruling, but not necessarily to the effect that a license agreement falls into place, Alston & Bird's Theodore "Ted" Stevenson (who scored a major FRAND win for Ericsson as lead counsel against HTC) followed up on this. He wanted to ensure that Apple wasn't just OK with the Texas court making a determination, but that this would really have the net effect of a new license agreement on the terms Ericsson is seeking to have declared FRAND. Joe Mueller made it even clearer that Apple wants the Texas court to determine the rate, and that his client would enter into a license agreement on that basis:

JOE MUELLER (FOR APPLE): "I'll try to be as clear as I possibly can be on this point because it is crucial. Mr. Stevenson is right that we have said--and I actually was alluding to this in the remarks with which I began--that there's no legal contractual requirement on prospective licensees to take a FRAND license. If they don't do it, they proceed at their own risk with respect to infringement claims.

"But notwithstanding the fact that Apple is not legally required to engage in portfolio rate setting and can't be forced to do it, we're choosing to do it before Your Honor and to be bound by it. So as an election by Apple to resolve this dispute, we are here; we are here to do global rate setting in a binding fashion where Apple will be bound.

"So we're trying to make it as clear as we possibly can that we are not under any definition of the term 'unwilling licensee', a party that would fall in that category. We are here; we are ready to go."

But according to Ericsson, Apple sent a letter nine days later (March 25) "retraining from its position" at the scheduling conference. Ericsson says that the letter--which hasn't been made publicly accessible--"propose[d] a radically different set of terms from the terms of Ericsson’s offer—disregarding the framework that had been discussed at the hearing." Ericsson criticizes those terms as "legally defective and not capable of resolution in a breach of FRAND case," but above all, Ericsson faults Apple for "miss[ing the point that it is Ericsson’s [$5 per device] offer to Apple [as opposed to the new proposal made by Apple that Ericsson takes issue with] that is the basis of this case and will be tested for FRAND compliance." (emphasis in original)

So, what is Apple really willing to be "bound" by in the end? Ericsson made a filing yesterday to ask the court to require Apple to come clean (this post continues below the document):

22-04-06 EDTX376 Ericsson M... by Florian Mueller

The apparent disagreement may relate to whether the Texas decision should be binary.

Ericsson didn't ask the court to set a rate anywhere from 1 cent to 5 dollars per device. If Ericsson had wanted to do that, it could also have gone to the UK. Instead, Ericsson wanted to do exactly the same as in the HTC case: to have its own position blessed as FRAND.

That's a logical position to take. Ericsson doesn't just view $5 per unit as an opening offer or an extreme position for litigation purposes (I can't help but think of Apple's $40 per device damages claim--over just a handful of software patents--in the 2014 Samsung trial). Instead, Ericsson believes that the outcome of the case is going to be that it's in its right to demand $5 per device.

By contrast, Count IV of Apple's counterclaims (originally Count IV of Apple's FRAND countersuit, but the FRAND parts of that countersuit got consolidated into Ericsson's FRAND case as compulsory counterclaims) seeks a "declaration of FRAND royalties for Ericsson's global cellular SEP portfolio." In its answer to Apple's counterclaims, also filed yesterday, Ericsson denies Apple's allegations other than the fact that it has made a FRAND commitment to ETSI--and "denies that Apple is entitled to any relief in this action, as requested or otherwise."

It could be that Ericsson is talking about a binary decision and Apple is talking about rate-setting that could result in any number. Here's a passage from what Ted Stevenson said at the mid-March hearing:

"And so what we believe is that if Apple is willing -- we've made an offer. We made an offer on October 2nd, a financial offer, and followed up with a fully integrated contract on November 4th. If Apple is saying in this case that if that is found by the Court or the jury to be FRAND, that they'll enter into that contract and abide by it, then yes, we will agree to be bound. And I think that's what they intended with that, and I think that would be the outcome of the case. But what's important are the terms and conditions, not just the rate."

Apple may already shed some light on this in a response to Ericsson's motion. In the meantime, I doubt that any court anywhere in the world will stay its cases because of the Texas action, in which it isn't even clear yet what the parties really accept to be bound by or to.

I also have an Apple filing to share--its answer to Ericsson's first amended complaint (this post continues below the document):

22-04-06 EDTX376 Apple answ... by Florian Mueller

That filing contains a detailed history of licensing negotiations from Apple's perspective. IT also says the following about the patent infringement cases Ericsson has brought since the expiration of the previous license agreement:

"Starting January 17, 2021, Ericsson has filed at least thirty-four additional actions against Apple in U.S. District Court, the International Trade Commission ('ITC'), and five other countries, seeking to enjoin Apple or exclude its products in order to coerce Apple into accepting non-FRAND royalties: two actions in the Western District of Texas, three investigations in the ITC, six actions in the Netherlands, five actions in Belgium, two actions in Brazil (one against Apple and one against a reseller of Apple products, Allied Tecnologia SA), fourteen actions in Germany, and at least two actions in Colombia."

Clearly, the ITC and Germany are the enforcement hotspots here. Each of the 14 German cases relates to one patent (or if more than one, then certainly from the same patent family). The three ITC complaints involve a total of a dozen patents, though it's common to drop patents during the course of ITC investigations to streamline the process, enabling the agency to keep its ambitious timelines.

The Colombian filings haven't previously been announced or disclosed. It's probably the first high-profile dispute in which a patent holder goes there, though litigants are trying out more and more venues. Nokia is a good example: its disputes with OPPO and Vivo involve filings in places like Indonesia (and Russia, but with Nokia having stopped selling any products there, it may also want to withdraw its patent cases).

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Despicably deceptive: Big Tech's Save Our Standards campaign presents small app developer as victim of standard-essential patent abuse though it NEVER had to license SEPs

I am outraged. What Save Our Standards, a "coalition" formed last fall, has recently employed is by far the most disingenuous lobbying and campaigning tactic ever in the context of standard-essential patents (SEPs). It's an utter disgrace, brutally unethical and shockingly incompetent at the same time. The companies who funded that particular effort--mostly Big Tech, but also automotive industry players--should be ashamed. Very ashamed.

In an infomercial, they presented a small contract development firm from Alabama as an example of a small business that allegedly has reasons to worry about standard-essential patent (SEP) abuse. But the facts are 100% clear. It's all a lie. A damn lie, just for political gain. Deceptive lobbying at its worst. The truth of the whole matter is that the company in question never had to license a single SEP--and not even the customer for which it developed the only existing app mentioned in the infomercial incurred the slightest risk related to SEPs. One just needs to understand the basics of U.S. patent law to understand why, and I'll explain it further below based on a transcript of that Save Our Standards infomercial. If you want to skip the other explanations and go straight to the most absurd part of that infomercial, click here.

With their small-business lie they're trying to get other small businesses to sign up for a newsletter (presumably so they can subsequently make some of them "members" and argue that their agenda is not just about Big Tech and car makers' interests' in devaluing SEPs). They even try to fool the DOJ, USPTO, and NIST into believing there's a small-business concern here.

Once policy makers around the globe figure this out (for which they just need to read this post), they'll see that Save Our Standards is, in part, an astroturfing campaign. Save Our Standards just can't be trusted. If they have to come up with a fake story like that in order to make a "small business" argument, it just shows the bankruptcy of the whole claim that small app developers are impacted by SEPs. They also conflate app development (software) and IoT products (hardware). I will always be in favor of solutions--such as fair patent pools--that truly help small IoT companies license SEPs. But I reject--and even despise--scare tactics targeting small businesses (which may not figure this out for lack of IP expertise) and attempts to disinform policy makers like the DOJ or the European Commission.

While Saved Our Standards described itself in its original announcement as "a broad-based group of 28 innovators that includes small, medium and large businesses, associations, academics, and civil society organizations," it's just ACT | The App(le) Association by any other name. The initial press release quoted only one person--ACT's president--and provided an ACT email address in its Media Contact section:

I've previously criticized ACT's astroturfing and applauded Microsoft for withdrawing from it after more than two decades. The Save Our Standards campaign is just a new label for ACT, with support from Big Tech groups like the High Tech Inventors Alliance (HTIA), Computer & Communications Industry Association, and Software & Information Industry Association (SIIA). Apple, Google, and Amazon are additionally direct members (not just through the aforementioned Big Tech groups). And there are some automotive companies like Continental and Honda, as we ll as their Alliance for Automotive Innovation (AAI).

That's obviously not a "a broad-based group of 28 innovators that includes small, medium and large businesses" (emphasis added). If you wonder where all those small businesses are, they have a fig leaf, though, and it's named MotionMobs. I venture to guess they either pay that one directly for its services or there are some indirect incentives in place.

MotionMobs is a contract software developer, especially contract app developer. It's not a lie that MotionMobs is small. The untruth here is that MotionMobs allegedly has a problem with SEPs. MotionMobs doesn't need to license SEPs or fend off SEP infringement lawsuits any more than you or I need to license patents on nuclear reactor technology.

Here's what Save Our Standards tweeted just about a week ago (on March 29). Being the drama kings and queens they are, their Twitter profile picture says "SOS." If they're drowning in anything, it's the disingenuity of the following:

Let that sink in:

"Our member @motionmobs joins @gigastacey 'The Internet of Things Podcast' to discuss the impact of #sepabuse on #smallbusiness"

@gigastacey is Stacey Higginbotham, an IoT blogger and podcaster. She got paid by Save Our Standards to spread patent policy propaganda. I don't blame her: she probably doesn't understand patent law, thus couldn't know what she was being used for.

Episode 364 of Stacey's Internet of Things Podcast podcast (dated March 24, 2022) was sponsored by Save Our Standards. The relevant part begins at 36m06s, and it's so obvious that MotionMobs just parroted talking points prepared by ACT and most likely recorded those messages as opposed to answering in real time. Here's my transcript, with comments:

STACEY HIGGINBOTHAM: "But first a message from our sponsor [...] This week's sponsor is Save Our Standards. Save Our Standards brings together a cross-section of industries to advocate for a fair and transparent standard-essential patent licensing system. And I have Emily Hart, who is the COO of MotionMobs, which is a software consulting and development firm based in Birmingham, Alabama, here to talk to us about Save Our Standards."

COMMENT: If they want to advocate for a fair and transparent SEP licensing system, maybe they should do so in a fair and transparent way. The sponsorship notice is, of course, transparent. But it's astroturfing to claim that MotionMobs has any SEP issues.

STACEY HIGGINBOTHAM: "Hi Emily, can you talk a little bit about standard-essential patents and the way MotionMobs uses them when developing tech-driven solutions for your clients?"

COMMENT: The honest answer would be that MotionMobs uses SEPs in its app development just like anybody uses them when making a phone call or browsing the Web with a smartphone. They don't implement standards, period.

EMILY HART: "Standard-essential patents are part of wireless standards that go far beyond smartphones. They're used in everything these days from smart manufacturing to vehicles. One of the reasons that we joined SOS is really to deepen our knowledge of what's going on in the policy landscape around SEPs and to share our perspective as a small business. As app developers at MotionMobs we fairly rely on a healthy functioning ecosystem that grants us access to the hardware components that our software needs."

COMMENT: Are you kidding me? You're worried about "access to the hardware components [y]our software needs?" What's the problem then? You can't buy an iPhone at the next Apple Store? LMGTFY: the nearest one is on 217 Summit Boulevard, Birmingham, AL.

EMILY HART (cont'd): "When we developed GuideSafe, Alabama's official COVID-19 exposure notification app in 2020, that software hinged entirely on privacy-protecting Bluetooth tech and right now we have another health tech product that's in development. It's being designed for a very specific line of healthcare display units in hospital. Neither of these projects would even be possible without fair access to the standard-essential-patented components in the units that we're developing for."

COMMENT: Give me a break. There's nothing in or about your app that would expose you to any SEP-related risk (other than the risk any of us have when we use our phones).

Let's even forget about the fact that Bluetooth practically never gives rise to any litigation (or to complaints about unfair licensing terms). Even if we assumed for the sake of the argument that there were lots of abusive Bluetooth SEP holders out there preying on small businesses, MotionMobs wouldn't have to worry because its app just uses the Bluetooth functionality of an iPhone or Android phone. Your "fair access to the standard-essential-patented components" is provided by the iOS or Android APIs (application programming interfaces), and it's free apart from Apple's and Google's app store tax.

Any direct infringement of Bluetooth SEPs would have to occur by the device maker, and the device maker would then infringe with or without your app. There's no indirect--for example, compulsory--infringement either. It starts with the fact that MotionMobs doesn't even publish that app. It just sold software development services to the State of Alabama, which published the app. And, by the way, even the State of Alabama doesn't have to worry: if all else failed (and there'd be other strong defenses), U.S. states are not liable for patent infringement because patent law is federal law, which the states are immune to under the Eleventh Amendment. (The federal government waived its immunity, but the only remedy patent holders have is fair compensation in the Court of Federal Claims.)

STACEY HIGGINBOTHAM: "And as a small business in the IoT ecosystem, why is it important to educate yourselves about licensing standard-essential patents?"

EMILY HART: "Small businesses like us have limited resources and most don't have access to a general counsel for navigating malicious threats from SEP holders or hostile negotiations. Education is the key in protecting all small businesses against being forced to take a bad deal or halting production or distribution due to a licensing dispute or--even worse--a small business can be shut down entirely due to defending those threats."

COMMENT: Oh my. So after some weird references to access to patented components, she's now talking about the need to license patents (which for the reasons I explained above MotionMobs simply doesn't have to), she then makes it sound like MotionMobs' development work could be "halted" or their apps couldn't be distributed.

Now, I do agree with those astroturfers that "education is the key." That's why I'm writing this post: to debunk a total lie.

EMILY HART (cont'd): "MotionMobs also supported a recent draft statement from DOJ NIST USPTO on regulating the licensing of standard-essential patents because we believe it would lead to a more balanced system for all players. Standard-essential patent holders, of course, would receive fair compensation for their patented technologies, but we also need to make sure that small and large innovators alike would be ensured of their access to the standards needed to develop and sell their product."

You don't need to make this sure. It's already ensured. You don't infringe directly (to any greater extent than other smartphone users), nor indirectly--and the State of Alabama is even free to infringe (sovereign immunity). But if Save Our Standards (i.e., ACT | The Apple Association) or any of its backers are your customers, companies like Apple and Google indeed do have to license SEPs.

The DOJ, NIST, and USPTO should not take a submission seriously that is signed by a company that doesn't even face any SEP issues.

STACEY HIGGINBOTHAM: "Great! OK, so where can people find more about Save Our Standards?"

EMILY HART: "For details on the coalition, resources about standard-essential patent licensing and to share your email to stay in touch with our activities and news, visit us at www.saveourstandards.com."

COMMENT: What a puff piece, designed to recruit clueless small companies as members (because they struggle to underpin their small business-related SEP claims). They may even have planned to use that "interview" to disinform policy makers about the structure of their membership ("no, we're not just Big Tech, we got MotionMobs from Birmingham, Alabama") and the impact of SEPs on little app developers.

Pathetic.

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In ITC filing, Apple turns antitrust concept of 'tying' on its head (once again): Ericsson actually offers standard-essential patent license separately from non-SEP license

Maybe Apple believes that the US International Trade Commission (USITC, or just ITC)and its Administrative Law Judges (ALJs) lack antitrust expertise. Whatever the reason or motivation may be, Apple keeps telling the ITC that Ericsson engages in "tying" because it's simply seeking a U.S. import ban over some non-standard-essential patents (non-SEPs) while simultaneously enforcing SEPs (in parallel cases before the ITC and elsewhere).

This the same Apple that keeps denying the very real tying between its app distribution monopoly and the app tax it imposes on developers. The district judge sided with Apple on that one, but by now I've identified some fundamental misconceptions on her part in connection with market definition. The appeals court will probably disagree with her at least in part, and possibly (even hopefully) overrule her on tying, a context in which the DOJ is supporting Epic (starting with the part that even something that isn't sold or licensed separately can constitute a market).

So, the same Apple that would like to narrow the scope of tying in the App Store context to an extent that has the DOJ concerned--and that will certainly dispute any allegations of tying in connection with its future iPhone subscription service--is telling the ITC a tying story that turns antitrust law on its head.

Let's look at what Apple says, and let's then compare it to what tying actually means. To quote what Vice President Harris said in Munich: "I mean, listen, guys..."

By now, Apple and Ericsson have responded to each other's ITC complaints. Ericsson brought three complaints (one over SEPs, two over non-SEPs), while Apple retaliated with one non-SEP (mmWave) complaint. Apple's response to Ericsson's SEP complaint is sealed for the time being, as is Ericsson's response to Apple's countercomplaint. But Apple's responses to Ericsson's two non-SEP complaints are now publicly available. I've uploaded them to Scribd (337-TA-1300, 337-TA-1301).

Apple already made that "tying" claim in its public interest statements. In its responses to the complaints, Apple raises the issue twice: in connection with the public interest (once again), and as a "patent misuse" theory. Apple claims that "Ericsson is illegally tying the broad SEP portfolio license to the non-essential Asserted Patents." (emphasis added)

Apple says Ericsson is trying to force Apple into a SEP license by enforcing non-SEPs: "Ericsson promised to license its declared SEPs under fair and reasonable terms, and using the threat of injunctive relief in this Investigation to coerce Apple into taking an SEP license is a breach of that agreement."

As a litigation watcher I know what to think of a claim of a breach of an agreement when a party doesn't substantiate it with specific references to one or more relevant terms of that agreement. Apple doesn't do that because it can't. The FRAND pledges of standard-setting organizations like ETSI say nothing about what companies can do with other patents than the ones subject to that pledge. The declared-essential patents are FRAND-encumbered; not entire portfolios involving even non-SEPs.

The contract law claim is devoid of substance. But the antitrust claim is even worse because it's grounded in a theory that portrays tying as the very opposite of what the term really means.

The FTC provides a great explanation of tying:

"For competitive purposes, a monopolist may use forced buying, or 'tie-in' sales, to gain sales in other markets where it is not dominant [...] This may limit consumer choice for buyers wanting to purchase one ("tying") product by forcing them to also buy a second ('tied') product as well. Typically, the 'tied' product may be a less desirable one that the buyer might not purchase unless required to do so, or may prefer to get from a different seller. If the seller offering the tied products has sufficient market power in the 'tying' product, these arrangements can violate the antitrust laws."

Here, Apple claims that Ericsson's non-SEP licenses are the "tying" product and its SEP portfolio license is the "tied" product. In other words, Ericsson allegedly lacks market power in SEPs but does have it by virtue of its non-SEPs, and must use its super-valuable super-powerful non-SEPs to get Apple to take a license to its SEPs...

In reality, market power is a concern related to SEPs, which is addressed by the FRAND commitment.

If there could be any concern about tying, it would have to be the opposite: a SEP holder forcing a company to take a non-SEP license may do so just to inflate the effective royalty rate. I've never seen that happen, though. In FTC v. Qualcomm and Apple v. Qualcomm, it was undisputed that Qualcomm offered a SEP license and a totally optional non-SEP license on top. When Ericsson replied to Apple's public-interest statements, it stated clearly:

"Ericsson offers to license its SEPs without licensing its NEPs."

Theoretically, Apple is free to work around any NEP (non-SEP), whether or not it takes a license to Ericsson's SEPs. At the same time, Ericsson is free not to license its non-SEPs at all, or to offer them only as part of a portfolio license.

Apple's tying-related defenses may be thrown out at an early procedural stage because they make no sense.

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Great news for standard-essential patent holders: Munich court looking to streamline multi-patent SEP disputes through unified FRAND hearing in 'lead case' and sequencing of trials

Case management matters. While procedures may be a dry subject, they do have serious business implications. I've learned about developments in Munich that will not only save court resources but also make standard-essential patent (SEP) holders money.

The world's leading forum for patentees seeking injunctions--the Munich I Regional Court--has for more than a decade prided itself on its "Münchner Verfahren" ("Munich Procedure"), which would be called "Patent Local Rules" in U.S. federal district court (here's an example from the Northern District of California). Those rules are characterized by two hearings (the second one of which is a trial typically followed by a decision), page limits, and other rules that enable an efficient and correct adjudication of patent infringement actions.

Two years ago, the court also promulgated--just before a Nokia v. Daimler hearing, and after many months of deliberations and discussions with stakeholders (many of you had the chance to hear from Presiding Judge Dr. Matthias Zigann at conferences, even at an ETSI meeting)--its Standard-Essential Patent Local Rules on top of said Patent Local Rules. The court's emphasis on a licensee's genuine willingness to take a license was--by extension--affirmed that same year by the Federal Court of Justice in Sisvel v. Haier I. Later that year, Sisvel v. Haier II, while having the same case-specific outcome (in favor of plaintiff Sisvel), provided further clarification and, as part of that effort, promoted a certain degree of symmetry.

At a Nokia v. OPPO/OPPO v. Nokia hearing held by the Munich court's 21st Civil Chamber (Presiding Judge: Dr. Georg Werner) last month, it crystallized that the court's SEP rules were still evolving, for reasons including--but not limited too--the guidance provided by Sisvel v. Haier II. As I noted in my commentary (the post I just linked to), there's no reason for SEP holders to worry about whether Munich is a great venue for enforcing their intellectual property rights against unwilling licensees. It still is. But both parties to a litigation must act constructively through the process, all the way up to (and including) the trial.

I can see why some were shocked to find that the court had removed its SEP Local Rules (and its general Patent Local Rules) from its website. But that doesn't mean a change of direction. There was also concern over whether those development signaled divergence between the court's three patent-specialized divisions. No worries: a reasonable degree of continuity and maximum consistency between the court's divisions are ensured. The court issued a press release today with the following explanations (this is my summary, not a translation):

• The three Munich patent litigation divisions--the 7th Civil Chamber under Presiding Judge Dr. Matthias Zigann, the 21st under Presiding Judge Dr. Georg Werner, and the recently-created 44th under Presiding Judge Dr. Anne-Kristin Fricke--jointly defined an updated set of Patent Local Rules late last month. There hasn't been a major change to them. It's more of a routine update that clarifies, for example, that one has to raise any proportionality argument in the answer to the complaint. Proportionality arguments against injunctive relief are made more frequently as a result of last year's German patent "reform" bill, but in my opinion they remain very unlikely to result in a denial of injunctive relief unless a plaintiff blunders or tries to shut down the country's most essential infrastructure without making a reasonable licensing offer. If last year's legislation matters at all, it has more to do with the part protecting confidential business information. In fact, the law on confidential business information ("GeschGehG") is mentioned ten times in the new Patent Local Rules, while "PatMoG" (the acronym of the patent reform bill) doesn't come up even once (only the disproportionality defense, in the purely administrative fashion I just explained).

  All of this is just typical of a necessary update that doesn't represent a departure from the court's rules. The two-hearing structure remains in place, as are many other signature elements of Munich's Patent Local Rules, such as rigid deadlines.

• Counsel will automatically receive the rules in force at a given procedural juncture (or can request a copy). I've seen the document as well.

• The court chose email over web simply in order to be able to revise the rules more flexibly. This way the judges can update the document without the administrative hassle of requesting an update to the court's website (which is a subdomain of the website of the Bavarian (State) Ministry of Justice).

• Now, there currently is no document describing the court's SEP Local Rules. That, however, doesn't mean that the court distances itself from its past case law. The key factor here appears to be that SEP disputes are, more often than not, multi-patent litigations. The court's press release notes that SEP cases will be organized individually for the sake of judicial economy. The court is now experimenting with a new approach to certain sets of (related) SEP cases. The press release notes that the court may actually promulgate new SEP guidelines further down the road.

I've done some further research and found out what approach to SEP cases the court is presently contemplating (all of which remains in flux). The first step is to identify a "Leitverfahren" ("lead case") among a set of related SEP actions. In the lead case, the parties exchange four pleadings (two per party) and then spar with each other at a first hearing exclusively dedicated to the compulsory-licensing defense, i.e., it's exclusively a FRAND hearing. That's what apparently took place in Nokia v. OPPO/OPPO v. Nokia last month.

If the parties can't reach an agreement and the case has to proceed to trial, there will be a second hearing--the actual trial--for that lead case. At that stage, it's not only about FRAND but also about the technical merits (infringement and the possibility of a stay pending parallel validity proceedings).

What about the other cases (than the lead case) that are part of a multi-case dispute?

They don't get two hearings (just written pleadings ahead of the trial), and the trial will be held only after the lead case has been resolved.

The objective is to explore the possibility of a settlement based on the lead case. The remaining cases will proceed to trial only if the lead case fails to bring the entire dispute to an end. I could imagine scenarios in which a defendant lets the lead case come to judgment and plaintiff loses. It's also conceivable that a plaintiff obtains an injunction, but the patent can be worked around (this may sound like illogical for a SEP, but "essential" is not "essential-essential").

Above all, I could see cases in which a plaintiff maybe asked for an excessive royalty in the lead case, but then has the chance to optimize its FRAND demand in time for a subsequently-adjudicated case. That scenario actually favors plaintiffs. They get another bite at the apple (an apple that in some SEP cases is spelled with a capital A) if they file multiple cases and prevail on more than one patent-in-suit. If a defendant makes a mistake in the lead case, it will be enjoined, which often means it's game over and it doesn't help to be wiser after the event. A SEP holder, however, can actually take its chances in the lead case and if the demand was supra-FRAND, it could still fine-tune its position next time, with guidance from the court's prior ruling involving the same parties. The court will decide each case based on the full FRAND negotiations record as of the end of the trial in a given case. If the SEP holder is granted an injunction later, it may still be better off than if it had asked for too little the first time.

Three major benefits to SEP holders

If you ask me, the envisioned strategy for managing multi-SEP disputes actually makes Munich an even more attractive SEP enforcement venue--quite the opposite of what some feared last month. I see there reasons, which are closely related and arguably even overlapping:

• One of the three aspects is what I explained above: SEP holders can take their chances in the lead case and still obtain an injunction in a subsequently-decided case.

  In principle, plaintiffs already had the opportunity to optimize their FRAND story after each trial or decision. But now they have an absolute guarantee that the court will firstly provide them with the necessary guidance in a lead case before any other case is even taken to trial. At last month's Nokia v. OPPO/OPPO v. Nokia FRAND hearing, Judge Dr. Werner placed the emphasis on the court judging each party by the entirety of its negotiation conduct from the first infringement notice to the trial. In a multi-case one-way dispute ("one-way" meaning the defendant isn't countersuing), a SEP holder that is confident of its ability to prevail sooner or later, and which is not in financial dire straits, can afford a "maximalist" strategy. Don't leave money on the tabe, as the saying goes. "You win some, you lose some" doesn't apply because the SEP holder just needs one decisive victory. It's like "win once and take all."

• While the FRAND hearing provides guidance to either party based on which it can optimize its FRAND position with a view to the trial, the practical implications aren't symmetrical. If a defendant learns at the first hearing that it has to meet a plaintiff's demands or it will be enjoined, and if it can't risk being shut out of the German market, the patentee will get what it's looking for. In the other scenario, however, where a patentee learns that it has to accept an implementer's offer or it won't win an injunction, the SEP holder can still choose: it can choose the bird in the hand over two birds in the bush, or it can simply bet on getting leverage in other jurisdictions such as the ITC, the UK, the Netherlands, maybe even in an exotic country. Put differently, the SEP holder can walk, but the implementer will remain under pressure as long as the SEP holder has cases pending that may lead to injunctions. That already benefits SEP holders within the lead case.

• Previously the Munich court focused only on claim construction and the infringement analysis at a first hearing, even in SEP cases apart from exceptions that were few and far between. Early first hearings with a purely technical focus can give patentees leverage in non-SEP cases, with defendants often realizing their fate will likely depend on their motion to stay pending a validity determination. In multi-SEP disputes, however, guidance on FRAND is more critical than on infringement. It's hard to magine that a Nokia, Ericsson, or InterDigital wouldn't at some point prevail on at least one SEP-in-suit out of several asserted patents. Whether it's the first, second, or third case where it proves a SEP to be actually essential is less important than obtaining guidance on FRAND at the earliest opportunity, for the reasons discussed before.

  I believe we'll see more settlements of multi-SEP disputes after Munich first hearings now. Previously, defendants who saw at a first hearing that they were on the losing track with respect to infringement (as a SEP appeared to be truly essential to the standard) could tell themselves that "not all is lost" because there's still FRAND. Now, the FRAND part gets addressed at an earlier stage. If a defendant is on the losing track with respect to FRAND, it's only a question of when, not if, it will have to take the license.

Note that this is all preliminary; it's just being contemplated; and it's highly case-specific, so the court may adopt different rules for different disputes.

Single-patent vs. multi-patent cases: best of both worlds

I completely understand the court's judicial-economy considerations here because I follow cases in the U.S. and Germany, so I see the difference between multi-patent cases (be it in U.S. district court or in the ITC) versus single-patent (or at least single-patent-family) cases in Germany. What the Munich court wants is to leverage synergies between related SEP cases, ideally yielding the best of both worlds:

It's simply a requirement in Germany to adjudicate each patent (family) separately. A party can bring a complaint over five patents from five different families, and can almost literally set its watch by the court severing those additional claims, resulting in five cases (which is why German courts don't want parties to file multi-patent cases in the first place: they ask them to assert each patent (family) in a separate complaint).

Either approach (single-patent vs. multi-patent) has an upside and a downside:

For the purely technical aspects of unrelated patents (if they're not from the same patent family, they cover unique inventions), there aren't any non-negligible synergy effects other than a single jury selection process and maybe having to explain an accused product only once. Then, U.S. jury trials aren't just about the technical merits. They practically always involve damages claims, and then there are overlapping elements concerning the accused products.

German patent infringement cases are very technical, making them patent-specific. Damages are practically relegated to subsequent proceedings (in almost all cases, parties just seek a determination that they're entitled to damages, but don't actually sue for damages until after they've proven an infringement of a valid patent and are entitled to an accounting that enables them to calculate their damages claim).

Multi-SEP cases are different. The FRAND determination is almost always about a (global) portfolio license (if not even a global pool license). The patent-specific question is whether an injunction will issue against an unwilling licensee, but the rate is unrelated to the strength or commercial value of a particular patent-in-suit. It would be inefficient and rulings could theoretically be inconsistent if different divisions of the court adjudicated parallel SEP cases involving the same portfolio. In Nokia v. Daimler, most cases were pending before the 21st Civil Chamber (then under Presiding Judge Tobias Pichlmaier), but one was assigned to the 7th Civil Chamber (Presiding Judge: Dr. Matthias Zigann), which had previously looked at that patent when Nokia was asserting it against Apple. The 21st Civil Chamber enjoined Daimler, and before the 7th Civil Chamber adjudged its case, the parties settled. Nothing went wrong. But it was a dispute involving several patents, two different panels of judges were involved, and it would indeed have made sense to identify a "lead case" for the purpose of a de facto consolidation of the FRAND part, and to firstly decide that one before taking the other cases to trial.

For SEP holders it still makes sense to assert multiple SEPS, hedging their bets not only with respect to the technical merits but also with a view to FRAND. The court, however, can use its scarce resources most efficiently to give guidance to the parties to SEP disputes enabling them to overcome their disagreements on licensing terms.

I'm pretty optimistic that what is currently just being contemplated won't disappoint when it's reduced to practice.

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Microsoft rightly withdrew support for ACT | The App(le) Association (which it once created) -- why are Verizon, Intel, AT&T, Verisign still behind advocacy against 99.9% of app developers?

It's getting lonely around Apple. No one loves the Hermit App Kingdom. Still worse, hardly anyone even wants to be associated with it anymore in industry policy contexts--because of its App Store monopoly. This also weakens Apple's advocacy efforts around standard-essential patents (SEPs), despite the fact that the positions the Hermit App Kingdom takes in the SEP context are overwhelmingly shared by the likes of Samsung, Xiaomi, and OPPO, as well as all car makers and also companies like Intel and Cisco. Whether one agrees or disagrees with Apple on SEPs, there can be no question that it's merely the most powerful exponent of certain views on fair, reasonable, and non-discriminatory (FRAND) licensing terms, but far from the only one. When it comes to mobile app distribution terms and policies, however, the only party that has mutual interests with Apple is Google, as evidenced by this week's amicus curiae briefs in Epic Games v. Apple, where virtually all of the support for Apple came from entities backed by Apple itself and by Google, though even Google has issues with Apple (game streaming and messaging, for instance).

It is high time for Verizon, Intel, AT&T, and Verisign to reconsider their status as "sponsors" of ACT | The App(le) Association unless they believe it is conducive to their business to position themselves as co-sponsors of advocacy that goes against the interests of roughly 99.9% of the digital economy, which is now very much an app economy. I understand that they may all share Apple's views on SEP enforcement and licensing. But the end doesn't justify the means, guys. If Apple wants to astroturf, let Apple astroturf, but let Apple do it alone.

I applaud Microsoft for finally (I had been waiting for this for about a year) having withdrawn its support for ACT | The App Association, which by now should more accurately be called ACT | The Apple Association.

This is extremely significant because ACT was essentially founded by Microsoft more than two decades ago. When Microsoft got into antitrust trouble (over conduct that was laughably negligible compared to what we've seen from Apple and Google in recent years), it set up ACT according to none other than The New York Times, which wrote in June 2000 (according to a Wikipedia article): "[...] Microsoft has also created new trade groups, the Association for Competitive Technology (ACT) [now called ACT | The App Association] and Americans for Technology Leadership (ATL), to generate support for the company through Web sites and a sophisticated and largely hidden grassroots lobbying campaign."

Dr. Roy Schestowitz is the #1 Microsoft hater. I sometimes agreed with him on particular industry issues but he is really obsessed with Microsoft, while other companies are now the problem and Microsoft is on the right side of history with respect to app distribution. Dr. Schestowitz has written extensively about ACT's (past) ties with Microsoft. On this page of his TechRights blog you can find a number of links going back to the late 2000s. For him it must be like hell freezing over to see Microsoft abandon ACT.

I first encountered ACT when I was campaigning against a piece of software patentability legislation in Europe. At the time, Microsoft was very much in favor of strong patent enforcement, even including SEPs--but a few years later I already noticed that Microsoft was becoming more and more balanced, especially with respect to injunctive relief and, generally speaking, the balance between patent plaintiffs and defendants. As Microsoft became a moderate in patent policy, ACT changed direction, too, and warned against SEP abuse--after many years of taking a "the stronger, the merrier" position on anything involving patents, regardless of whether they are standard-essential or not.

That about-face on SEPs must have attracted Apple to the group. Intel already had an interest in ACT's advocacy when it faced some antitrust issues itself, and Intel--like Apple, to be fair--has also been very consistent about patents on industry standards.

At some point, ACT renamed itself. ACT (Association for Competitive Technology) became ACT | The App Association--and in such contexts as Philips v. Thales they make submissions to courts that suggest it's an IoT startup group. In reality, the way all those "members" became members appears to be that they just signed up for a newsletter, never paying any dues or undergoing the slightest vetting.

Without specifically mentioning ACT, Politico.eu's Samuel Stolton discussed the problem of Big Tech Astroturfing in an excellent article in November 2021. Politico quoted German Member of the European Parliament (MEP) Alexandra Geese (Greens): " [M]any tech associations in Brussels, even those purporting to represent small- and medium-sized enterprises, are often bankrolled by Big Tech." The article discusses the problem of genuine small and medium-sized enterprise (SME) organizations being sidelined by deep-pocketed astroturfers.

I hadn't even noticed Microsoft's withdrawal from ACT until I saw a tweet by Epic CEO Tim Sweeney challenging ACT's claim that Epic Games never had small developers in mind. I replied with only a screenshot (the bottom section--because they try to hide those disclosures--of ACT's About page) to which I added an arrow):

pic.twitter.com/WXgK0dKyMk

— Florian Mueller (@FOSSpatents) April 2, 2022

As I was producing that image, I noticed that Microsoft was no longer listed. So I checked on the Internet Archive (Wayback Machine), where I found a January 24 capture of the same page. At that point, Microsoft was still listed between Apple and Verizon:

Microsoft's withdrawal from ACT is a reason to celebrate--and should really give Verizon, Intel, AT&T, and Verisign pause.

It's not a question of where one stands on SEPs. I'm pretty implementer-friendly, which is why I often agreed with Apple and even with ACT on specific SEP-related issues, but I look at it case by case, dispute by dispute. It's not that everything ACT said about SEPs is wrong--but to date I haven't seen a single statement by ACT on mobile app stores that wasn't an insult to human intelligence because no genuine representative of small app developers would ever say anything like the things they say.

What is also an insult to human intelligence is the suggestion that small app developers care about SEPs. Hardly any small app developer ever implements an industry standard: that's typically done by the platform itself. The iPhone implements 5G; an iOS app simply runs on the iPhone.

In February I commented on the most absurd thing ACT | The App(le) Association has ever done. It sponsored a "poll" that produced results like this:

"More than 60 percent of voters favor the federal government setting clear guidelines on what [FRAND] terms are for [SEPs] (61 percent favor / 32 percent oppose)."

You'd be lucky if even 0.61% of the general electorate (that's like 200 million people in the U.S.) knew what a SEP is.

I urge the likes of Verizon and Intel to take the following into consideration: It's one thing to lend support to organizations or academics because they take positions you like. That's par for the course in tech advocacy. It's another when an organization claims to speak for the victims of the app store tyranny but gets paid for it by the very tyrant. That's where every reputable and honorable company should draw the line. It's like setting up a pseudo-PETA, funded by the cosmetic industry, to defend animal testing, arguing that it actually benefits small animals.

Google--Apple's only ally (with limitations) in the app store context--has its own ACT called Developer Alliance. That's another story.

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Fourth Avanci licensor sues Ford Motor Company: Sol IP asserting five LTE standard-essential patents from Korean research institute ETRI in Eastern District of Texas

Pressure is mounting on the Ford Motor Company to do its standard-essential patent (SEP) licensing homework. The legendary U.S. car maker is now defending against patent infringement actions brought by (at least) four Avanci licensors:

• In Munich, Japan's IP Bridge is likely to prevail on the merits of at least one SEP. In three weeks from today, the trial will continue and it appears to be all about FRAND.

• L2 Mobile Technologies, a Longhorn IP subsidiary, is suing Ford in the District of Delaware.

• Sisvel--whose president I quoted yesterday on Xiaomi's approach to patent licensing--is enforcing 4G patents against Ford in the District of Delaware as well as in the Munich I Regional Court.

A few days ago, Ford also got sued in the Western District of Missouri by a company named Neo Wireless, which unlike the aforementioned three companies is not an Avanci licensor (thus likely to demand far higher royalties on a per-patent basis).

The latest enforcement action by an Avanci licensor--the fourth to date to assert patents against Ford--was filed yesterday in the Eastern District of Texas. Sol IP, which has an exclusive license to various patents belonging to Korean research institute ETRI, is suing Ford over five 4G SEPs (this post continues below the document):

22-03-31 Sol IP v. Ford Mot... by Florian Mueller

With a view to TC Heartland (case law on patent venue transfers), Sol IP argues that Ford as a Central Market Area Office in Plano, TX, which is in the Eastern District. In a case before a Texas state court in 2015, Ford said the Plano office was "the principal office of Ford in the State of Texas." The General Manager of that office resides in Frisco, TX, which is equally in the Eastern District. He is responsible for "750 Ford and Lincoln Dealers".

Sol IP's complaint points to the fact that Ford could take an Avanci pool license anytime (though the complaint also notes that any licensing through Avanci is "nonexclusive" and mentions a bilateral licensing offer that came with the infringement notice):

"Other automakers have taken licenses from Avanci on the same terms per connected vehicle that has been offered to Ford, including but not limited to Volkswagen, Seat, Skoda, BMW, Audi, Porsche, Volvo, Jaguar Land Rover, Mercedes Benz, Daimler Truck, Aston Martin, Scania, MAN, and Volvo Group. In all, more than thirty automotive brands are Avanci licensees."

Sol IP is not pursuing an injunction, but it is seeking damages including willfulness enhancements.

Sol has previously sued Qualcomm over 28 ETRI patents as well as carriers AT&T Mobility, Verizon, and Sprint.

These are the asserted patents, each of which was declared essential to the 4G/LTE standard and belongs to South Korea's Electronics and Telecommunications Research Institute (ETRI):

• U.S. Patent No. 10,938,534 on "carrier aggregation in wireless communication systems"

• U.S. Patent No. 10,231,211 on a "method for paging information in cellular system

• U.S. Patent No. 10,932,298 on a "method for transmitting uplink control siginal in mobile communication system"

• U.S. Patent No. 8,320,571 on a "method for generating downlink frame, and method for searching cell"

• U.S. Patent No. 10,148,477 on a "method and apparatus for transmitting ACK/NACK" (ACK = acknowledgement; NACK = negative acknowledgment)

With all that is going on, the question is now whether Ford is the next Daimler (which defended itself against SEP infringement cases by Avanci licensors for more than two years, only to take a pool license anyway) or the next Volkswagen (which settled its dispute over an upgrade of its Avanci license to 4G rather quickly). I can't give the answer to that question. Only Ford itself can.

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Apple's 'friends of the court' in Epic Games case boil down to Apple (astroturfers), Google (indirectly), Roblox: lack of broadbased support for Hermit App Kingdom

Epic Games lost the key parts of the district court's decision in its Apple App Store antitrust case, but together with its allies Epic has made an impact in the legislative arena in various countries and its Ninth Circuit appeal has enormous momentum with support from the Biden Administration, 35 U.S. states, Microsoft, and a group of law professors around "the Dean of American Antitrust Law" Herbert Hovenkamp. Compared to that outpouring of support, what Apple has to show is downright embarrassing.

I kid you not. This is not an April Fools' Day post regardless of the date you'll find below. Apple has zero governmental backing, unimpressive academic support compared to Epic, and when it comes to companies and industry bodies, we're practically talking about Apple applauding itself through astroturfing, Google indirectly backing Apple, and Roblox, which is increasingly controversial over its own treatment of creators. I've also uploaded Roblox's brief, which focuses just on Apple's privacy and security argument, to Scribd.

Even Snap(chat), which was trying to curry favor with Apple toward the end of last year's Fortnite trial, is apparently done supporting Apple after the impact of Apple's "privacy" rules (ATT) on its business--though Apple's astroturfers still point to what Snap said.

Arguably, Apple's most remarkable accomplishment in connection with those amicus briefs is that it succeeded in dissuading the Attorney General of the State of California from joining those 35 other states (the 36 combined are the same who are suing Google over its app distribution terms). Instead, the California AG focuses only on the application of his state's Unfair Competition Law (UCL). That question is relevant only to the meaningless consolation prize Epic won in the first round. I've uploaded the Golden State's filing to Scribd, but it's not worth discussing here.

If its App Store terms and policies were such a blessing for the digital economy, one would reasonably expect Apple to get some serious third-party support, especially after anybody with an interest in preserving the status quo would have been shocked into action by the gigantic support Epic received two months ago.

It's not going to be easy for Epic to get the district court's ruling overturned. U.S. antitrust law is defendant-friendly, and the district judge made a number of factual determinations to which the "clear error" standard of review applies. But it won't be hard for the United States Court of Appeals for the Ninth Circuit to see that Judge Yvonne Gonzalez Rogers ("YGR") of the United States District Court for the Northern District of California made some serious mistakes at least in connection with the single most important part: market definition.

It starts with the fact that Judge YGR defined the relevant market as "digital mobile gaming transactions", as if there had ever been such a thing as an analog mobile gaming transaction. It's just one redundant word, which she adopted from Apple's proposed definition (where it actually did make sense), but it's symptomatic of a fundamentally flawed approach to market definition.

In its response to Epic's appeal, Apple blundered by inadvertently conceding that Epic was right when arguing that there's a smartphone operating system market in which iOS competes with Android--a fact that Apple's primary expert witness disputed. I don't think I've ever seen Apple make a mistake like that in a major dispute--even a default judgment in Mannheim more than a decado ago was just an inconsequential oversight. They have such vast resources and can afford to have many of the world's smartest people work for them. But the notion of iOS not competing with Android because iOS is always just sold or licensed along with devices (and not separately) is so counterintuitive that even Apple's own lawyers failed to stay on message. I looked at it from different sides and the more I thought about it, the clearer it was that what Apple had said was simply an admission that there is a smartphone operating system market regardless of whether iOS is always bundled. And as I analyzed that question, I identified flaws in the district court's decision that I hadn't previously noticed because I wouldn't have thought that a super smart judge would simply misunderstand Epic's market definition and the Supreme Court's Kodak decision by falsely believing that Epic considered iOS a "market"--when Epic's single-brand market argument was not that iOS was the only operating system for the iPhone, but that the App Store was the only app distribution channel for iOS, so while iOS does compete with Android, the App Store does not compete with Google Play.

It is still my hope that the Ninth Circuit and the Supreme Court (which is where I expect this case to go) will determine that this is one of those rare cases in which a single-brand market definition is warranted because Apple can get away with doing very bad things to developers without losing market share where it has to compete. But the judge thought that Epic proposed a smartphone OS market because Apple would have a higher market share than the 15% it has in smartphones--which showed to me that she apparently thought Epic's proposed foremarket (smartphones operating systems, thus a market where Apple faces competition) was already an aftermarket ("Apple's own internal operating systems"). That part of the decision will hopefully be reversed.

Apple's amici can't cure those deficiencies of the district court's judgment, nor can they convincingly claim that the sky would fall if the Ninth Circuit corrected the lower court's mistakes.

Apple and Google are competitors, but when it comes to app distribution, their interests are largely aligned. Even Google has problems with Apple's even more restrictive policies, such as with respect to its Stadia game streaming service and instant messaging, where Google calls on Apple to open up instead of cashing in on lock-in and classism. But Google has to defend itself against the same "apprising" and wouldn't want Apple to lose on a basis that would also apply to the Google Play Store.

Google is supporting Apple against Epic's appeal in two ways (besides presumably having lobbied the state of California to limit its submission to the unimportant California UCL part):

• The Computer & Communications Industry Association (CCIA) has many members, but Google is by far its most influential one. Apple joined as well in recent years. The CCIA filed a brief that addresses market definition, stressing the importance of a two-sided market (in other words, they want Apple to get the same result that American Express won in the Supreme Court). The CCIA's other members include some companies that presumably don't like Apple's App Store terms and policies (Facebook, Shopify), but the CCIA's two-sided market focus may have been a lowest common denominator that Amazon and eBay were also happy to support.

• Another organization that engages in advocacy on both Apple and Google's behalf is the Chamber of Progress. That one also filed a brief in support of Apple.

Other than getting support from Google and Roblox, both of which are heavily criticized over their own treatment of creators, Apple can basically has just one friend in this context: Apple itself.

I've previously explained that ACT |The App(le) Association does not represent app developers' interests in fair distribution terms. That organization, which is backed by Apple, alternatingly describes itself as an association of small app developers (which never seem to pay any dues nor do they seem to undergo any vetting: you sign up for a newsletter and are considered a member) or as an Internet of Things advocacy group, or as a mix of both. Let me refer you to another blog post I did on ACT two months ago: Apple's astroturfers try to fool ITC with misleading statement concerning Ericsson's complaint, and Biden Administration and Capitol Hill lawmakers with phony poll: both on the same day

Yesterday I mentioned an ACT filing in support of French industrial giant Thales in a standard-essential patent (SEP) context. I'm not aware of a single small app developer who's ever had to defend against SEP litigation--that is so because small app developers simply don't have to implement the kinds of standards around which ACT engages in advocacy.

The brief ACT filed on Thursday in support of Apple against Epic untruthfully claims that small app developers depend on Apple getting its 30% cut from the likes of Epic so Apple can invest. They say Apple competes for developers but their arguments are largely just about Apple improving its products or spending amounts on the App Store itself that even Judge YGR recognized as being small compared to the money Apple makes with the App Store. They point to Snap's statements of almost a year ago, but if Snap still believed in what it said then (it does not because meanwhile it's been impacted by Apple's advertising rules), it could file a brief in its own name and wouldn't need any Apploturfers to speak for Snap.

ACT's brief contains a couple of broken references in the footnotes:

Apple can do better than that.

Finally, I'd also like to mention that despite my criticism of Apple's App Store terms and policies, and of the incredible mistakes that led to the district court's decision against Epic on its key (Sherman Act) claims, there are contexts in which I actually do agree with Apple and would find it intellectually dishonest not to do so.

A couple of law professors support Apple's position that its conduct at issue in the Fortnite case needs to be analyzed under Section 2 of the Sherman Act, not Section 1. That is also my reading of the statute. I wouldn't mind if the question was decided the other way, but I wouldn't consider it a correct outcome.

Also, there's the ongoing enforcement dispute in the Netherlands, with Dutch competition regulator ACM (Autoriteit Consument & Markt; Authority for Consumers & Markets) having imposed €50 million in fines on Apple for alleged non-compliance with a ruling concerning dating apps. Apple's new proposal is now publicly available. They no longer require a separate SKU (shelf-keeping unit, a term from traditional retail distribution that is also applied to digital stores) for the Dutch market. In my opinion, Apple's previous position wasn't unreasonable, but that is another concession. Also, it seems Apple has modified the warning that users get to see in connection with alternative payment methods. Apple still insists on its 27% cut of any income app developers generate through alternative payment methods. Other than the 27% figure being too high for developers who may be eligible for the Small Business Program (15%), I don't think this is a compliance issue: the dating-app ruling doesn't specify what Apple may charge. In my opinion, the ACM should accept this set of rules--and if it is really concerned about Dutch consumers being overcharged when they use dating apps, an investigation of the complainant in the Apple case--Tinder operator Match Group--would actually make more sense.

Getting back to the Ninth Circuit appeal, Epic has until late May to reply to Apple's responsive brief and to respond to Apple's appeal of Epic's consolation prize under state UCL. Epic could also comment on the amicus briefs supporting Apple, just like Apple tried to discredit Epic's amici. Given that Apple opposed an amicus brief by the Epic-Spotify-Tinder Coalition for App Fairness at the stay stage, I was actually surprised to see that Epic didn't object to a filing by ACT | The App(le) Association--but it seems the parties agreed on a very permissive approach to amicus curiae submissions.

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