After two and a half weeks of litigation, Apple is seeking to target one of Epic’s key pieces of competition law. Archiving on Tuesday night, Apple asked the court to dismiss one of the 10 calculations alleged in the original complaint, arguing that Epic had failed to provide any evidence of the allegation that Apple violated the doctrine of essential facilities by not providing access to software distribution tools on iOS.
“At trial, Epic did not provide any evidence to support this claim,” Apple’s filing includes. “On the contrary, Epic’s chief expert expressly declined to comment on the necessary possibility and (in response to a direct question from the court) rejected the idea that iOS should be treated as a public utility. The Court must rule on Apple on this claim.
Apple, which is submitted for partial observations, seeks to distinguish material space charges from the other nine charges set out in Epic’s original complaint. Basically, Apple believes it can win a quick win at this particular point. It will not resolve the case entirely, as the other nine charges still require a decision, but that would be an unexpected and embarrassing loss for Epic.
Epic hasn’t talked much about essential service doctrines in court, and Apple’s lawyers responded in part to the court’s vocal suspicion. On May 12, Judge Yvonne Gonzalez Rogers confronted Epic about the weakness of the evidence specifically related to the prosecution. “I’ve heard quite a bit of evidence throughout the trial about how big Apple is and how anti-competitive it is.” Gonzalez Rogers said. “It sounds to me like what Epic is saying,‘ We want Apple to let us deal with their platform. And there are only two of these platforms, and because there are only two platforms, not all of these competitors can succeed without access to these platforms. ”
The advice of the epic figured it out it had not “abandoned this theory” – but it has not raised it substantially since that day.
Key modes of learning is a long – standing piece of competition law that prevents dominant companies from using bottleneck services to compete with competitors. In the founding example from 1912, the Railroad Association prevented competitors from providing access to St. Louis and from there by blocking access to interchanges around the city. The Supreme Court ruled that the arrangement constituted an illegal restriction on trade and ruled that companies must make reasonable use of the facilities necessary for competitors.
In its complaint, Epic argues that app distribution on iOS is a similar bottleneck and that Apple has used its control of the iOS platform to prevent Epic and other competitors from offering competing app stores.
“Apple controls iOS, which is essential for effective competition in the iOS app distribution market,” the complaint alleges. “By denying the necessary opportunity for Apple to maintain its monopoly position in the iOS application distribution market.”
But Apple is now denying that Epic has reasonable access to iOS through the App Store itself – and that iOS customers are clearly not essential to the operation of their business, as the company has been largely successful without them.
“Epic’s own experience, as pilot studies show, confirms that there’s nothing‘ essential ’in iOS,” Apple’s archive reads. “Fortnite was a success before it was released on the App Store, and FortniteiOS (before its removal) accounted for only 7 percent of its total revenue. And the original apps aren’t the only way Epic can reach iOS customers – it’s also free to distribute its products (including by selling V-Bucks) to iOS customers on the Internet. “
Apple’s motion calls for a hearing on the matter on Monday, May 24 – or “as soon as the court may hear the case.”