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Apple seeks to junk claim that iOS is an 'essential facility' in legal spat with Epic Games

Fortnite maker 'has no factual, expert, or legal support for its theory'

Apple is seeking to dismiss one of the fundamental claims in its long-running legal spat with Epic Games.

On Tuesday night, over two weeks after its bench trial commenced, the company filed a motion [PDF] to dismiss one claim that it violated the Sherman antitrust law, arguing Epic has failed to demonstrate iOS met the threshold for an "essential facility."

The term "essential facility" typically refers to physical infrastructure – such as roads, bridges, or power conduits. These are things that cannot typically be replicated easily, and are necessary for the delivery of something.

Although the App Store represents a bottleneck to software distribution on the iPhone, Apple's legal team argued that this doesn't necessarily meet the standard of an essential facility. Moreover, it argued that essential isn't synonymous with "best" or "most profitable."

It also pointed to Epic's perceived lukewarm enthusiasm for this particular charge, having "effectively abandoned" it as the trial moved forward, and accused the claim of lacking a "factual, expert, or legal" basis.

Apple's legal team pointed to Dr David Evans, expert witness for Epic Games and chairman of Global Economic Group, who declined to describe iOS and Android as utilities during testimony.

Even if iOS met the bar, they added, Epic Games has access to iOS and the App Store, with the dispute centred upon the terms of that access (namely, the 30 per cent commission charged on each in-app transaction).

"The essential facility doctrine does not require a firm to provide its competitors with unfettered, unlimited, or uncompensated access to its property," it said.

Using the example of iOS as a "bridge" between developers and users, Apple's counsel added:

What Epic is demanding is that it be permitted to use the bridge at any time of day at no cost and with no limitations on its terms of access. That is not what the essential facility doctrine requires. Epic is free to access iOS (and distribute native iOS apps) in accordance with the terms of access set forth by Apple in the [Developer Program License Agreement].

Even with this cut, Epic has reportedly made a decent chunk of change from the iOS platform, with the motion pointing to $700m in native iOS revenues alone.

If Apple succeeds in getting this charge dismissed, it will have scored an early victory in a legal battle that threatens to shake both the gaming and mobile industries. The other nine claims, however, will remain pending.

For those short of memory, the case arose when Epic tried to circumvent Apple's App Store policy by offering discounts to users that bought for in-game purchases directly from Epic. Apple took exception and lawsuits were slung by both sides. ®

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