Epic, the maker of the popular Fortnite video game, filed separate antitrust cases against Apple and Google on the same day in August 2020 and culminated in dramatically different outcomes. Unlike the jury in Google’s trial in San Francisco, U.S. District Judge Yvonne Gonzalez-Rogers largely sided with Apple in an 185-decision that defined the Play Store and Apple’s iPhone app store as part of a broader competitive market.
Ellsworth told the appeals court that U.S. District Judge James Donato improperly allowed Epic to turn the Google trial into a "do-over" that excluded the Apple app store as a rival in the market definition that led to the jury’s verdict in its case.
“You can’t just lose an issue that was fully litigated the first time (in the Apple case) and then pretend it didn’t happen,” Ellsworth said. She said the competition that Google and Apple engage in while making the two operating systems that power virtually all of the world’s smartphones "sufficiently disciplines" their actions in the app market.
But the appeals judges indicated they believed the market definitions could differ in the separate app store cases because Apple bundles all its software and the iPhone together - creating what has become known as a "walled garden" - while Google licenses the Android software that includes its Play Store a wide variety of smartphone makers.
"There are clearly some factual differences between the Android world and Apple world," Judge Danielle J. Forrest told Ellsworth.