Apple and the Fearsome five are doing it again. The same people who pushed the fallacious “troll bogeyman”; engaged in PTAB proxy warfare, seemingly immunized by the “real party in interest doctrine”; invented the compulsory “license to all” oxymoron (dissected here); engaged in a multi-year effort of regulatory and academic capture are now pushing their narrative in a new forum – a secret one. This time they are trying to insert the ACT | App Association in Lenovo’s SEP licensing litigation with InterDigital. In its motion ACT is playing a little fast and loose with the rules on filing amicus briefs (so that it can argue against InterDigital’s motion to dismiss Lenovo’s antitrust claims). Clearly, ACT’s paymasters are annoyed that the Department of Justice filed a statement of interest supporting InterDigital. The question is why does ACT feel that Lenovo is unable to defend itself.
Perhaps with the recent Avanci Busines review letter, Apple and the deep pocketed implementer lobby were worried that they are losing ground. Indeed, as the very recent shellacking the FTC received at the hands of the 9th Circuit makes clear, the time when implementers can use creative antitrust theories as a shield to excuse their efficient infringement and willful infringement is running out. However, more fundamentally, the likely reason why the ACT |Apple Association filed a brief is to cover up embarrassing positions that Lenovo is taking in other cases. The first clue that this might be the cases is that there is a major overlap between ACT’s Lenovo’s counsel in standard-essential patent cases. The firm of Sidley Austin, who represents Lenovo in its suit with InterDigital, filed an amicus brief on behalf ACT |Apple in the Federal Trade Commission antitrust case against Qualcomm that was recently overturned and vacated. The firm, that filed the motion seeking leave to file an amicus brief on behalf of ACT in the InterDigital case, is currently representing Lenovo as it battles patent infringement claims from Nokia in district court and at the International Trade Commission.
The second clue that something odd is going on here comes from engagement of Apple’s go-to firm. This firm is the same firm behind the fallacious royalty stack hack job that managed to hoodwink the European Commission and Apple’s 10+ year campaign to eviscerate SEP licensing.
The third clue is found in Wikipedia, where the ACT |Apple association proudly boasts Apple, Intel and Microsoft among its “large, independent sponsors” (although one might expect them to change it after reading my blog).
Finally, the last clue comes from the sad fact that Lenovo, like most efficient infringers and unwilling licensees will argue whatever it is convenient for them in a case – regardless of prior positions – to avoid paying royalties (e.g., ¶1(d)). Their preferred method seems to be make whatever creative antitrust argument that you can think of, regardless of consistency. Here, it turns out, Lenovo recently sued IPCom in California demanding in its complaint that the court determine a world-wide IP license under FRAND terms. However, in its Delaware suit against InterDigital, Lenovo wishes to advance the position that InterDigital’s attempt license its SEPs worldwide is somehow improper. Still possessing some sense of shame, Lenovo is using ACT’s proposed amicus brief make the arguments that arbitration is improper in a FRAND dispute and global FRAND determinations are improper in court – in direct opposition to the positions advanced by Lenovo (then Motorola) in its litigations with Apple and its litigation with IPCOM in California. (p8) Sadly, contrary facts and incoherent arguments seem to be a feature of the implementer parade of falsehoods.
One wonders how much longer Apple and their enablers will be able to keep up the “hide behind a supposed App-developers association” charade? Indeed, with Apple’s recent fights with App companies like Spotify and Epic Games, complete with kicking Fortnite off the App Store and Epic’s media attack and antitrust suit, along with the European Commission’s investigation in Apple’s anticompetitive behavior in the App Store, ACT |Apple may soon face a “a terrible conflict of interest because they won’t be able to criticize their funding sources” – it will be interesting to see what happens…