With Ericsson still not having announced (by the time I'm writing this) a renewal of its patent cross-license agreement with Apple, dozens of patent infringement complaints against Apple--in multiple jurisdictions--may be imminent as the license agreement is just about to expire. And other major standard-essential patent holders like Nokia and InterDigital haven't announced a renewal with Apple in many years, so there may be even more infringement actions to come in 2022.
Meanwhile, an unconventional but interesting lawsuit against Apple in the Southern District of Florida has gone largely unnoticed: Florida-based The Coring Company (not to be confused with this one) alleges that Apple
violates antitrust law by not allowing an alternative app store named App Place, which is designed to eliminate the malware problem (through source code review) while avoiding Apple's arbitrary censorship, and
through the distribution of apps with certain reverse phone number lookup functionality infringes U.S. Patent No. RE48,847 on a "post-page caller name identification system." To be clear, the patent holder does not claim to have monopolized all reverse lookups, but it overcame significant challenges to get a particular lookup method involving both internet sources and carrier databases. Apple is accused of infringement because of its distribution of apps that allegedly implement that technique--and for failing to remove those infringing apps after the patent holder put Apple on notice of the alleged infringements.
Furthermore, the complaint levels accusations against Apple's recently reported $275B investment commitment to China, as a potential class action. I'm going to focus on the antitrust and patent infringement parts here that are directly relevant to app developers.
The plaintiff--just founded this month--avers not to have any contractual relationship with Apple and, therefore, not be bound by the forum-selection clause in Apple's app developer agreement. Of course, Apple can nevertheless (and presumably will) request transfer of venue to the Northern District of California, but faces a higher hurdle this time.
The inventor of the RE'847 patent is Jeffrey D. Isaacs, who is also involved with the Coronavirus Reporter v. Apple case that Judge Edward Chen (Northern District of California) recently dismissed. The Coronavirus Reporter makers haven't given up though: they've appealed to the Ninth Circuit and are asking the district court for reconsideration (which is highly unlikely to happen). The Coronavirus Reporter case was originally filed in New Hampshire, but got transferred to California. That app developer, however, had signed Apple's developer agreement.
With respect to alternative app stores, the Florida plaintiff's "App Place" claims to be the best (in terms of most secure) app store ever made for iOS by requiring developers to submit the source code of their apps:
"They then have the choice to either have the code professionally audited by certified computer code examiners, like a patent examiner examines a patent application, or to distribute the app in compiled open source format, like Github has done for years for programmers. For many apps, distributing in open source is preferable as it gains trust amongst users, and in some cases, is the only way to prove secure “end-to-end” encryption and other data safety chain-of-custody proofs. This would enable an entire class of apps that is currently not possible on iOS, for example,a certified smart contract front-end. Other apps may keep their source code more closely guarded, and instead pay certified auditors to review the code, and transcribe in simple English the functionality of the algorithms. In either scenario, malware and surreptitious, unethical algorithms will never be passed on to an end-user in the App Place; the open source code will plainly reveal itself in user reviews, and/or the auditor will discover that the algorithm doesn’t function as specified in the developer app submission. Community monitoring of open-source forks would attribute them to original creators, and the App Place would direct ad revenues and in-app purchases accordingly. Hence, even in the open-source method, work product is protected."
The complaint claims that censorship would be a "non-issue in the App Place," eliminating "the subjective curation review by Apple" and focusing on objective criteria, though the specifics aren't really clear at the moment. I'm sure many developers would reject an open-source approach to app distribution, but some would embrace it. It is true that source code review by developers can identify security issues Apple's app review would fail to find. By not allowing such alternative approaches, Apple deprives users of potential benefits from competition--and it was actually Judge Yvonne Gonzalez Rogers herself (the very judge who ruled against Epic Games) who noted during the spring trial that competition might be good for security.
Apple is predictably going to argue that its own approach is, on the bottom line, still superior--but it won't be able to deny that source code review is an App Place feature that the App Store lacks. Apple doesn't let the market decide. That's the problem.
The patent infringement case is basically unrelated to the App Place antitrust issues, though the complaint attempts to establish some connection.
Epic's opening brief on appeal is due in late January. I intend to share some thoughts beforehand. I've concluded that the only objective worth fighting for on Epic's part is a single-brand market definition. If Epic won that one, the case might be remanded to the district court for a new ruling in light of such a game changer. Apple's web apps argument would have to be addressed again. The district court considered the availability of alternative ways of reaching customers, among them web apps, "dispositive" of Epic's Sec. 2 claim but didn't really elaborate. While Epic can also try to get a reversal even if the district court's market definition (mobile game distribution) was upheld, I believe Apple would be very likely to defend its victory in that case, as the district court made a number of holdings and findings that make the ruling hard to overturn on appeal unless there's a new market definition. I will elaborate on these thoughts soon, but thought I'd already share my high-level observations on this occasion. Epic's appeal will have to focus on potential game changers or it will get lost in a thicket of factual findings and legal holdings by the district court.
A single-brand market definition is the key to ending the Apple (and Google) app store tyranny. The Dutch competition authority (named ACM, Authority for Consumers & Markets) is tackling Apple's app tax in the specific context of dating apps (as per a complaint by Match Group, best known for Tinder), and defined the relevant antitrust market as follows (paragraph 13 of this PDF document):
"That is why ACM establishes that Apple enjoys a dominant position on the relevant market for appstore services on the mobile operating system iOS for dating-app providers. On this market, Apple is, to a high degree, able to act independently from dating-app providers, and to dictate the conditions regarding access to the App Store. After all, dating-app providers have no realistic alternative to the App Store, and consumers do not take into consideration the conditions for dating-app providers when selecting a smart mobile device."
Apple's smartphone market share in the Netherlands (26%) is far lower than in the United States, and the Dutch ACM very appropriately explains that mobile app developers are facing an Apple-Google duopoly (without using that term--at least I couldn't find in the summary).
Finally, here's the Coring v. Apple antitrust and patent infringement complaint from Florida:
21-12-15 9-21cv82235 Coring... by Florian Mueller
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