In an antitrust case brought by Epic Games, Inc., Apple has asked the court to dismiss a claim that its iOS is an essential facility. While Epic’s claim iOS is an essential facility is only one of ten counts alleged against Apple, a win for Apple on this issue could be impactful.
Apple’s motion for judgment on partial findings rests on its assertion that Epic did not introduce evidence supporting its essential facility claim during its case-in-chief. In its motion, Apple argues Epic’s principal expert expressly disclaimed an opinion on the theory and “rejected the notion that iOS should be treated as a public utility.”
The essential facilities doctrine, derived from United States v. Terminal Railroad Ass’n, holds that a single entity in control of a facility essential to its competitor’s business must provide reasonable access to that facility if possible. In a later Seventh Circuit case, the court set forth four elements of the doctrine:
- Control of the essential facility by a monopolist;
- A competitor’s inability practically or reasonably to duplicate the essential facility;
- The denial of the use of the facility to a competitor; and
- The feasibility of providing that facility.
Epic’s essential facilities claim thus asserts that Apple’s control over iOS denies Epic the opportunity to compete by preventing it from offering its own app store compatible with iOS.
The essential facilities doctrine has its critics. Many believe the doctrine is unusable because it does not define what constitutes a facility, what makes that facility essential, nor what constitutes denial of access.
Apple’s motion affirmatively argues that its iOS is not an essential facility by equating the definition of an essential facility with a public utility – a label Epic’s expert declined to give to Apple’s iOS. Apple asserts that a system protected by intellectual property law, like its iOS, cannot be an essential facility. Apple further argues Epic’s Fortnite was successful before it was available on Apple’s App Store and Epic is able to reach Apple’s customer base using other means, such as the internet and Epic’s own game store.
Finally, Apple points out that Epic already has access to iOS so long as it complies with its license agreements. Apple asserts that like a bridge, Epic may use iOS at any time to reach its destination (iOS customers) so long as it abides by certain limitations. The owner of a bridge, even though required to provide bridge access to its competitors, may rightfully charge a fee for its use and impose weight restrictions or prohibitions on hazardous materials. Therefore, Apple argues, Epic has not been denied access and cannot prove an essential element of its claim.
Epic has until May 23 to respond to Apple’s motion.
Apple asks court to rule iOS is not an ‘essential facility’, The Verge (May 19, 2021)
Apple, Inc.’s Motion for Judgment on Partial Findings (May 18, 2021)
Epic Games, Inc.’s Complaint for Injunctive Relief (August 13, 2020)
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