It seems that April Fools' Day has been moved up by two months with respect to standard-essential patent (SEP) policy and Sec. 337 Unfair Import Investigations by the United States International Trade Commission (USITC, or just ITC)...
On February 1, 2022, Apple's notorious astroturfers--dba ACT | The App(le) Association--were out of control again and issued two statements directed at D.C. institutions that no one in Washington should take seriously. However, I am seriously wondering why Apple--the world's richest and most powerful company in history--can't come up with classier and more credible ways of advocating its interests. Sure, Apple is isolated. With three dozen states, the Biden DOJ, and Microsoft supporting Epic Games in the App Store context, it's clear that Apple's ruthless abuse of market power has made the company more enemies than any other company of our times. But simply writing checks to astroturfers is not going to solve the problem.
Apple has to change its practices, and it should take better care of its credibility. Strategically speaking, Apple should ask itself from a long-term perspective whether there is a risk of its reputation as a tyrant in industry circles could erode its popularity with consumers in the long run.
Unless some filings have been made but not surfaced yet, it appears that Apple isn't getting any totally third-party support in the form of public interest statements seeking to dissuade the ITC from a limited exclusion order (colloquially referred to as "import ban") should Apple be found to infringe any valid Ericsson patent(s). The only three statements I've found on the ITC's electronic docket so far were submitted by
the Fair Standards Alliance (FSA), which took its long-standing positions on SEP injunctions and properly listed Apple among its members in a footnote; and
ACT | The App Association, more appropriately called "ACT | The Apple Association."
The ITC rejected ACT's original submission because that organization used a different font size for its footnotes, which is against ITC guidelines. That's funny, but there's a more fundamental reason for which the ITC should say "thanks, but no thanks" to ACT's grossly misleading submission:
Both ACT's proposed brief and its motion for leave to file a version with a corrected font size fail to tell the ITC the truth about Apple being a financial backer--possibly the largest one, and certainly not the smallest--of that entity.
Instead of telling the ITC the truth, ACT claims that "[t]he [small technology companies] ecosystem the App Association represents is valued at approximately $1.7 trillion and provides 5.9 million American jobs." The reality is that in this context, ACT simply represents Apple, which is valued at closer to $3 trillion.
Quotes often get taken out of context. It's unusual, however, when an organization quotes itself and then misleadingly modifies what it said. ACT's proposed statement on the public interest in connection with Ericsson's SEP-based ITCA complaint 337-TA-3595 references ACT's testimony before the Antitrust Subcommittee of the House Judiciary Committee, which--possibly for fear of the consequences of lying to Congress--doesn't claim that the organization represents a $1.7 trillion, 5.9-million-jobs ecosystem:
"The App Association is a trade group representing about 5,000 small to mid-sized software and connected device companies across the globe. In the United States, our member companies are part of a $1.3 trillion industry, supporting about 5.7 million jobs."
They simply have no mandate to speak on behalf of small companies, and even less so when considering that small companies don't appear to pay any membership dues. The organization is funded 100% by large technology companies, first and foremost Apple. ACT has been claiming to have about that number of members for many years, and at some point defined itself as an app developer organization--but in the SEP context increasingly claims to be an IoT industry voice.
ACT's letter (PDF on Scribd) asking the ITC for permission to refile its botched original submission does not mention Apple at all. And the proposed statement on the public interest itself contains the name Apple only once--not with respect to Apple's funding of ACT, but as a reference to a case (Apple v. Motorola) in which the FTC filed an important amicus brief on SEP enforcement. Here's the proposed ACT statement (this post continues below the document with ACT's other February 1 stunt):
22-02-02 ITC-3595 ACT Motio... by Florian Mueller
I believe the ITC should sanction ACT and/or Apple for this omission--and should not give any weight to a brief that also makes no sense because the small app developers ACT claims to represent simply don't implement cellular SEPs themselves (they just write software for devices that do, and then it's the device makers' problem only).
ACT's other February Fools' Day "prank" is a "nationwide poll of registered voters" designed to influence SEP policy-making.
According to the press release (PR Newswire), 71% of "American voters" say "it's extremely / very important for manufacturers to be able to license [SEPs] in a way that is fair, reasonable, and non-discriminatory, just 23 percent say it's only somewhat or not too important."
Give me a break. With Apple's money it's probably also possible to pay for a poll that will conclude 71% of "American votes" say "it's extremely / very important for public schools to offer Klingon language courses."
Depending on the degree of fluency required, the number of Klingon speakers may be at a level with the percentage of the wider population that knows what SEPs and FRAND licenses are, and what SEPs and FRAND have to do with "efforts to free up supply chains."
There may even be more support among the electorate for a Donald Duck sculpture on Mount Rushmore than for federal SEP licensing guidelines.
Or look at this insanity:
"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)."
How can 71% of voters have a position on SEP licensing in the supply chain, and 60%+ of voters demand federal guidelines on FRAND licensing of SEPs, when according to ACT | The App[le] Association's own press release "only 10 percent of voters say they know 'a lot' about intellectual property rights?" Even that 10% figure is implausible, but in any event it just doesn't square with those percentages in the high double digits.
There are polls that turn out flawed once one looks into the methodology. Leading questions, selection bias, whatever. But in this case, one doesn't have to dig deeper. The result speaks for itself, as its implausibility and blatant inconsistency should render anyone with a modicum of common sense speechless.
ACT's positions on App Store antitrust issues are even crazier, welcoming Apple's first-round victory over Apple when you can now see that three dozen U.S. states tell the Ninth Circuit that Apple is stifling innovation and harming app developers. But I wanted to focus just on patents here. ACT also makes submissions to the EU institutions all the time, such as in connection with the upcoming revision of horizontal agreement guidelines, and I may write about that topic in the coming weeks or months.
Share with other professionals via LinkedIn:
