Stereo headphone inventor Koss last month sued Apple, alleging infringement of five patents on wireless headphones. The lawsuit targets both AirPods and Beats wireless headphones.

Apple is now hitting back with a six-point countersuit. Five of the counts ask for a court to rule that Apple has not infringed each of the five patents listed in the original lawsuit, while a sixth one claims that Koss has no right to sue anyway …

Patently Apple reports that that Koss met several times with Apple, these meetings taking place under a confidentiality agreement. Under the terms of that agreement, neither party could use anything they learned in the meetings for the purposes of litigation. Apple says this is exactly what Koss has done.

The twist? It was Koss, not Apple, which insisted on the confidentiality agreement, so Koss may have sabotaged its own lawsuit.

In 2017, Koss sought out Apple in a purported attempt to engage in licensing discussions. Despite Apple’s request that all discussions be conducted without restriction, Koss insisted that the parties enter into a written Confidentiality Agreement. The parties ultimately signed such an agreement, with an effective date of August 6, 2017 (the “Confidentiality Agreement”). In the Confidentiality Agreement, Koss and Apple agreed that neither party would “use or attempt to use any Communications [between the parties], or the existence thereof, in a litigation or any other administrative or court proceeding for any purpose.”  

One possible reason for this odd decision is that Koss wanted to prevent Apple from going to court to have the infringement claims dismissed ahead of any lawsuit.

According to the terms of the Confidentiality Agreement, while the agreement was in force, Apple could not advise a Court of Koss’ threats to file baseless infringement claims or ask a Court to declare Apple’s rights and resolve the legal uncertainty it faced. The Confidentiality Agreement also restricted how Apple could disclose and use the existence and contents of the discussions. But the agreement also protected Apple—Koss was not permitted to later use the fact that Apple had agreed to a discussion with Koss, or the contents of the discussion, against Apple in litigation.

In other words, having enticed Apple to participate in discussions, reveal information, and forego some of its legal options, Koss could not use Apple’s participation against it as a “gotcha” to bring claims in a later litigation. That, however, is exactly what Koss did.

While Koss filed its lawsuit in Texas, Apple has filed the countersuit in California, and is requesting a jury trial. It seems likely that the Texas court would await the outcome of the Californian case, even though it was filed later, as that could make the original lawsuit moot.

I suggested earlier that the stereo headphone inventor appeared to be claiming ownership of fundamental technology used in all wireless headphones, and may have decided to start with the company with the deepest pockets before then going after other brands. If so, that may have been a strategic error, as Apple is not known for settling such cases, preferring instead to litigate them.

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