Apple chided by appeals judge as it heads to US Supreme Court in antitrust case

July 18 (Reuters) - A U.S. appeals court judge criticized Apple (AAPL.O), opens new tab on Monday over legal arguments it made as it prepares to ask the U.S. Supreme Court to strike down a ruling that could require the iPhone maker to change payment practices in its App Store.

In an order, opens new tab, Judge Milan Smith of the San Francisco-based 9th U.S. Circuit Court of Appeals said Apple had made statements in its bid for time to appeal to the Supreme Court that "may not be technically frivolous" but that ignore the factual record and rulings in the case.

Still, despite the criticism of Apple's legal arguments, Smith and two other judges gave Apple 90 days to file a petition with the justices and paused its ruling on payment through apps.

Apple plans to fight an injunction — which the 9th Circuit upheld in April — that says it can't ban links within apps available through Apple's App store that direct consumers to payment options outside of the App Store.

Such links and buttons would give developers a chance to bypass paying 30% sales commissions to Apple. "Fortnite" maker Epic Games in 2020 sued Apple over its commissions, accusing Apple of violating U.S. antitrust law.

Smith wrote the majority decision in April in the 9th Circuit that kept in place most of the order issued in 2021 by U.S. District Judge Yvonne Gonzalez Rogers. Smith defended the panel opinion in Monday's ruling.

"When our reasoning and the district court's findings are considered, Apple's arguments cannot withstand even the slightest scrutiny," Smith wrote.

An Apple spokesperson and lawyers for the company involved in the case did not immediately respond to requests for comment.

Apple's lawyers had asked the 9th Circuit to pause issuing the court's formal "mandate." The court's mandate would have imposed the injunction that Apple wants the Supreme Court to scrap. Epic Games opposed Apple's bid to delay the court's mandate.

In its filing, opens new tab, Apple questioned Epic's legal "standing" to bring the antitrust suit in the first place. Apple also challenged the scope of the 9th Circuit's injunction, saying it should apply only to Epic and its subsidiaries and not nationally to all developers.

But Apple's argument "overlooks aspects of the panel opinion's analysis that are inconvenient to its position," Smith wrote. Epic's role as a games distributor, Smith said, justified a broad-reaching injunction.

Smith said competition-law injunctions often have "incidental benefits to non-parties." That's because "antitrust law protects competition, not individual market participants," the judge wrote.

Apple seemed to make arguments that "challenge an imagined panel opinion on an imagined record," Smith wrote.

Epic chief executive Tim Sweeney in a tweet on Monday expressed disappointment that the injunction against Apple would remain paused for now. He said the 9th Circuit's order was "justice delayed, again."

The case is Epic Games Inc v. Apple Inc, 9th U.S. Circuit Court of Appeals, No. 21-16506.