Apple today filed its reply brief to Lodsys’ motion arguing that Apple should not be allowed to intervene in Lodsys’ ongoing litigation against an ever growing number of iOS developers who allegedly infringe a Lodsys owned patent.
Florian Mueller generously posted Apple’s brief up on Scribd if you wanna take a look at it in its entirety. If not, we’ll break down the thrust of Apple’s arguments.
If you recall, one of Lodsys’ arguments rested on the theory that Apple filed its motion to intervene prematurely, pointing out that Apple filed a motion before a number of defendants even answered the complaint.
Addressing this issue, Apple writes that Lodsys’ position here is completely baseless and lacks any foundation in case law and that a motion to intervene can only be made too late, not too early.
Next, Lodsys argued that Apple should be disallowed from intervening because Apple’s interests in the case must be “direct, substantial, and legally protectable.” As such, Apple’s economic interest in the outcome of the case is not sufficient to warrant Apple’s involvement.
To this end, Apple cites case law articulating that a license is “itself a sufficient property interest” and that the case law Lodsys cites to back up this particular argument are completely unrelated to licensing matters and consequently unpersuasive.
In an attempt to cover all of its bases, Lodsys not only argued that Apple lacked a sufficient interest in the litigation but that Apple’s interest was more speculative than anything.
Apple rejects this out of hand stating that Apple’s license lies at the heart of this case and that “Lodsys has already sued numerous significant Apple customers and threatened dozens of others, and a boycott of some of Apple’s core products by App developers has been proposed.
Now if you recall, Apple in its original motion seeking to intervene raised the point that Lodsys had targeted small and sometimes independent iOS developers who lacked the resources to adequately defend themselves. Somewhat shadily, Lodsys subsequently amended their original complaint to include large companies such as EA and Rovio.
Was Apple impressed with this legal tomfoolery?
Not at all.
“Although some of the new defendants may have greater resources than the original defendants,” Apple writes, “Lodsys does not contest the fact that none of the defendants have the technical information, expertise, and knowledge regarding how Apple’s technology works or the negotiation of the License itself to fully articulate and develop Apple’s exhaustion defense.”
Apple concludes, “Lodsys offers no legal factual or logical explanation for why it would be more efficient to resolve the complex issues surrounding Apple’s license without Apple in this case.”
Apple’s reply brief will be the last motion on the issue seen by the court. Now we wait patiently for the court to make a decision. Being as objective as possible, I would wager that Apple’s motion will be granted. Lodsys failed to come up with one solid reason as to why Apple’s involvement in the case should be precluded. While the court may ask Lodsys and Apple to address some of the aforementioned issues in more detail, an official ruling on the matter may be on the horizon – hopefully sooner than later.