Apple filed a motion overnight to ask the judge for a partial judgement on the claim that Apple is preventing Epic and its Fortnite game access to the App Store.

The battle between Apple and Epic stems from the fact the game company purposefully broke Apple’s App Store rules with Fortnite and an in-game purchase system.

That system bypassed the App Store’s in-app purchase protocol, causing Apple to remove Fortnite from the store completely. Epic claims that the App Store is an “essential facility” and that Apple is violating Section 2 of the Sherman Act via “its unlawful denial to Epic and other app distributors of an essential facility—access to iOS.”

Apple obviously disagrees, citing the fact that Epic’s own expert witness didn’t call the App Store a facility.

Epic’s experts did not opine on whether iOS is an essential facility, or whether Epic has been denied access to iOS. Rather, Dr. Evans admitted in his written direct testimony that Epic and other developers are provided “access to the tools and permissions for writing iOS apps.”

And on the stand, Dr. Evans admitted that he was not “expressing any opinion on anything termed an essential facility or anything related to an essential facility claim in this case.”

Apple goes on to note that Epic did have full access to the App Store before it ensured its own game was removed by breaking the rules.

There is no dispute that Epic actually has access to iOS. Epic, like all other developers, may obtain “access to the tools and permissions for writing iOS apps,” and may distribute those apps through iOS, by agreeing to the DPLA. And Epic clearly did (prior to Project Liberty) distribute its apps through iOS and the ‌App Store‌. So do millions of other developers.

Now we wait to see what the judge makes of it all.

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