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MacRumors
Jun 16, 2011, 01:56 PM
http://images.macrumors.com/im/macrumorsthreadlogo.gif (http://www.macrumors.com/2011/06/16/lodsys-patent-invalidation-efforts-apple-barred-15000-bounty-for-crowdsourced-research/)


Lodsys, the patent holding company currently taking on App Store developers over their use of in app purchasing and upgrade buttons, is under increasing attack as it continues to push forward with its own actions while its targets have begun to fight back. Last week, we noted (http://www.macrumors.com/2011/06/08/lodsys-patents-under-attack-as-legal-challenge-to-their-validity-commences/) that the first legal challenge had been brought seeking to invalidate Lodsys' patents, and three other companies, including the parent company of The New York Times, have since filed similar suits against Lodsys.

But while Apple has stepped forward (http://www.macrumors.com/2011/06/10/apple-steps-up-in-lodsys-lawsuits-files-motion-to-intervene/) and asked to intervene in Lodsys' case against the App Store developers, arguing that Apple's own license extends to developers using its tools, the company has not joined the effort to have the patents themselves invalidated. FOSS Patents now reports (http://fosspatents.blogspot.com/2011/06/apple-and-google-may-be-contractually.html) that Apple (and Google, whose developer ecosystem is also being targeted by Lodsys) may actually be barred from challenging the patents by virtue of their licensing agreements already in place with Lodsys.None of the attorneys I talked to knows the language of the license agreement Apple and Google signed with Intellectual Ventures while the four patents later acquired by Lodsys belonged to that entity. But they and I concur that it's highly likely that Apple and Google are contractually precluded from challenging Lodsys's patents because such license agreements often come with clauses under which a licensee will lose a license once he participates in an effort to invalidate any of the related patents (in addition to possibly having to pay contractual penalties).

So even if Apple and Google had wanted to attack Lodsys's patents proactively, they would have lost their license -- at least to any patent they attack; more likely to all four Lodsys patents; and possibly even to any or all of the more than 30,000 patents they licensed from Intellectual Ventures, a patent aggregator in which those companies (alongside many other industry players) invested.Consequently, Apple may be limited to simply defending App Store developers with respect to the terms of Apple's licensing, and not able to directly attack the patents themselves.

http://images.macrumors.com/article-new/2011/06/lodsys_invalidation_bounties.jpg


But that does not mean that Lodsys' patents are safe by any means. In addition to the four invalidation lawsuits already filed against Lodsys, CNET reports (http://news.cnet.com/8301-27076_3-20071343-248/scoop-bounty-set-for-invalidating-lodsys-patents/) that crowdsourcing intellectual property research firm Article One Partners (http://www.articleonepartners.com/) has launched a series of bounties for information on prior art or other issues that could help in the effort to invalidate Lodsys' patents.Article One Partners, a business that crowdsources intellectual property (IP) research, has launched three new studies into patents held by Lodsys. Each offers a reward to the party that finds prior art, or examples of pre-existing technologies or other IP that could be used as evidence to invalidate one or more of Lodsys' patents.Each of the three studies carries a $5,000 bounty guaranteed to be paid out to the researchers who submit what is judged to be the "highest quality prior art" to be used in attacking Lodsys' patents.

It is unknown who is funding the bounties on Lodsys' patents, as that information is not disclosed by Article One Partners. Article One is, however, an established company with a community of around one million people participating in crowdsourced intellectual property research on a variety of topics.

Article Link: Lodsys Patent Invalidation Efforts: Apple Barred? $15,000 Bounty for Crowdsourced Research (http://www.macrumors.com/2011/06/16/lodsys-patent-invalidation-efforts-apple-barred-15000-bounty-for-crowdsourced-research/)



BLACKFRIDAY
Jun 16, 2011, 02:01 PM
That's a bad turnout for App Store Developers and Apple.

I am just wishing myself to be safe and Lodsys to get bankrupt.

jav6454
Jun 16, 2011, 02:01 PM
Actions against Lodsys went to Apocalyptic means. However, these actions should give patent trolls second thoughts before trying to extort money from companies.

BenRoethig
Jun 16, 2011, 02:05 PM
Live by the patent lawsuit, die by the patent lawsuit. Lodsys, don't start a war unless you're ready to for your opponent(s) to fire back.

Consultant
Jun 16, 2011, 02:06 PM
This would be an interesting case to see how well crowd sourcing to deal with prior art works. Hopefully patent trolls would take notice.

alent1234
Jun 16, 2011, 02:06 PM
who owns or invests in lodsys? intellectual ventures has a long investor list that includes apple, google, cisco, microsoft and dozens of other tech companies. it's almost like a clearing house of patents so that no one sues each other.

Popeye206
Jun 16, 2011, 02:07 PM
Love it!!!!!!!!

Patent trolls must die!

THEENDUSER
Jun 16, 2011, 02:13 PM
Hope things will in the end turn in favor of the developers. I really hope this will serve as an example to all patent trolls. It's been ridiculous and out of hand. A developer can't just create anymore without also worrying about dummies like Lodsys. Just Dumb.

JTToft
Jun 16, 2011, 02:16 PM
This is getting serious...

0815
Jun 16, 2011, 02:18 PM
Apple not being allowed to challenge the patent ... that stinks. Didn't know that license agreements can have a stupid clause like that - that should be illegal and every company should always have the right to challenge a patent, no matter if they pay a license fee or not.

Could Apple 'pay' some other company to challenge? Are they allowed to support "Article One Partners"?

At least they are allowed to help their indie developers with the stupid law suit.

Good luck to every company challenging this patent troll - I hope this will be the end of Lodsys.

Lodsys shouldn't have tried to charge a license fee for a license that is already payed for (that is the outrage in my opinion) - as a result of this they turned now every major company against them trying to invalidate their patents leaving them hopefully with nothing (instead of a small something).

Even so mostly small indie developers were targeted (presumable 'easy' targets that can't defend themselves) it is fantastic to see how even big companies are now targeting Lodsys as enemy.

Mattie Num Nums
Jun 16, 2011, 02:24 PM
This is such a sensitive topic.

On one hand I can see Lodsys protecting their IP but, on the other hand its stupid! Its the system and they are using it to the fullest. The only thing that will stop this is reinventing the broken patent/trademark system.

I hope for the sake of the future Apple and Google kick the crap out of them.

paradox00
Jun 16, 2011, 02:27 PM
The thing is, Apple isn't challenging the validity of the patents, they are arguing that developers are licensed for the patents. I don't see the issue right now.

0815
Jun 16, 2011, 02:28 PM
This is such a sensitive topic.

On one hand I can see Lodsys protecting their IP but, on the other hand its stupid! Its the system and they are using it to the fullest. The only thing that will stop this is reinventing the broken patent/trademark system.

I hope for the sake of the future Apple and Google kick the crap out of them.

The problem is they tried to double dip.

Don't think anybody here on the forum can verify the validity of their patents - I'm willing to accept they are valid (or better, leave the check to people with better knowledge about that stuff), but I am not willing to accept the both producer and consumer are getting charged, that is what is not legal.

But the patents seems to be week and many companies seem to see it as a good preventive measure to target the validity, now that Lodsys has out itself as patent troll.

The thing is, Apple isn't challenging the validity of the patents, they are arguing that developers are licensed for the patents. I don't see the issue right now.

from the article it looks like that apple is not allowed to challenge the validity due to the stupid license contract they have ...

Ivan0310
Jun 16, 2011, 02:33 PM
This seems to me that when a patent troll goes after one of the heavy hitters, e.g. Apple, Google, Microsoft, etc.; no one cares--business as usual. It is when the troll goes after the little guys, i.e. the developers that people come out of the woodwork in attack formation.

Mattie Num Nums
Jun 16, 2011, 02:34 PM
The problem is they tried to double dip.

Don't think anybody here on the forum can verify the validity of their patents - I'm willing to accept they are valid (or better, leave the check to people with better knowledge about that stuff), but I am not willing to accept the both producer and consumer are getting charged, that is what is not legal.




from the article it looks like that apple is not allowed to challenge the validity due to the stupid license contract they have ...

That raises another question though. Are developers consumers?

NebulaClash
Jun 16, 2011, 02:37 PM
This is a distortion of the purpose of patents. We're not talking about poor Lodsys inventing something and then striving to compete with the big, bad corporations who are stealing their intellectual property. They are merely a tiny holding company that owns four patents they bought from Intellectual Ventures (http://en.wikipedia.org/wiki/Intellectual_Ventures), that company founded by Microsoft employees whose business model is to collect as many patents and intellectual property they can get and make money from it all.

Now Lodsys got ahold of these patents and is trying the old Slashdot humor on the world:

1. Buy patents
2. ?????
3. PROFIT!

Of course in this case their "?????" step is to sue the little developer, get them to pay up instead of taking it to court, use that precedent to go after bigger prey, etc. It's simply a business that has nothing to do with protecting ideas and everything to do with getting rich off someone else's ideas.

0815
Jun 16, 2011, 02:38 PM
That raises another question though. Are developers consumers?

In this case yes: technically they are 'consuming' the licensed API.

Basically they are 'buying' a component (where Apple uses licensed parts) from Apple to build into their product. If the component at the root in a production chain is licensed, you can't charge everyone down the road in the production chain for the same thing over and over again (those are just using/consuming that component).

paradox00
Jun 16, 2011, 02:39 PM
from the article it looks like that apple is not allowed to challenge the validity due to the stupid license contract they have ...

Yes, perhaps that's why they are arguing licencing and aren't trying to invalidate them. The headline almost makes it seem like Apple's barred from intervening on the developer lawsuits though. That's what I was concerned with.

On the flip side, if they can invalidate the patent, who cares if they lose the license to the patent in the process ;) Although, it would be a risky move if the assumptions in the article and that clause does exist.

0815
Jun 16, 2011, 02:43 PM
This is a distortion of the purpose of patents. We're not talking about poor Lodsys inventing something and then striving to compete with the big, bad corporations who are stealing their intellectual property. They are merely a tiny holding company that owns four patents they bought from Intellectual Ventures (http://en.wikipedia.org/wiki/Intellectual_Ventures), that company founded by Microsoft employees whose business model is to collect as many patents and intellectual property they can get and make money from it all.

Now Lodsys got ahold of these patents and is trying the old Slashdot humor on the world:

1. Buy patents
2. ?????
3. PROFIT!

Of course in this case their "?????" step is to sue the little developer, get them to pay up instead of taking it to court, use that precedent to go after bigger prey, etc. It's simply a business that has nothing to do with protecting ideas and everything to do with getting rich off someone else's ideas.

Yes - that is the definition of a "Patent Troll"

Everybody hates Patent Trolls - even more when they try to re-charge for an existing license.

Zweben
Jun 16, 2011, 02:45 PM
I'd really like to see Apple put a chunk of their $30 billion cash on hand into pushing for patent and copyright reform in this country. If they could get actual changes made, any amount of money they spent would probably save them money in the long run. This country's IP laws are absurd.

It seems strange to me that big companies don't seem to want to push for new laws. I can't imagine Apple, Microsoft, Sony, Nokia, etc actually like funding big legal teams and constantly being entangled in lawsuits with other companies over issues that only exist due to a broken patent and copyright system. Maybe it's just because the ones with the money to get the status-quo changed are also the ones with the expensive legal teams that tend to win the most lawsuits.

cmaier
Jun 16, 2011, 02:47 PM
First, not every license agreement has such a clause. Second, even if Apple would be in breach if they challenged validity, so what? They lose the license. If they can successfully invalidate the patent they don't need the license.

It seems to me that assuming their deal was with IPV, IPV wouldn't be likely to assert that they lose the license to the entire portfolio, given that they no longer own the patent anyway.

vartanarsen
Jun 16, 2011, 02:48 PM
As "Iron-Clad" as we have all thought Apple Legal to be, how could they have signed their license agreement without redlining that clause and having it redrafted?

Mattie Num Nums
Jun 16, 2011, 02:49 PM
In this case yes: technically they are 'consuming' the licensed API.

Basically they are 'buying' a component (where Apple uses licensed parts) from Apple to build into their product. If the component at the root in a production chain is licensed, you can't charge everyone down the road in the production chain for the same thing over and over again (those are just using/consuming that component).

I think thats the issue though. Some may see developers not as clients but as developers. I think the difference is yes, they buy the API, but they are using the technology for profit vs. you and me who are buying it to consume it.


As "Iron-Clad" as we have all thought Apple Legal to be, how could they have signed their license agreement without redlining that clause and having it redrafted?

People give Apple's legal team way to much credit. I think its Apples ability to use the media and pressure people in the eyes of the public which help its legal causes.

emulator
Jun 16, 2011, 02:49 PM
Why should anyone care if someone sue them in Texas anyway? If I was a developer, I wouldn't.

cmaier
Jun 16, 2011, 02:51 PM
Why should anyone care if someone sue them in Texas anyway? If I was a developer, I wouldn't.

Why not?

ratzzo
Jun 16, 2011, 02:51 PM
This would be an interesting case to see how well crowd sourcing to deal with prior art works. Hopefully patent trolls would take notice.

There is something that irritates me, to see how giant companies (in this case, Apple) will always have advantage over subjects like these which are, in essence, proving the other side wrong. Apple has a lot of fanboys, and as evidenced by one of the first posts in this thread, people see Lodsys as the 'bad guy' when they are simply fighting for what they think is theirs.

Of course, the bigger company has no issue with this as they have the best lawyers and could very well put high bounties for prior acts. Mmm...

Mattie Num Nums
Jun 16, 2011, 02:52 PM
I'd really like to see Apple put a chunk of their $30 billion cash on hand into pushing for patent and copyright reform in this country. If they could get actual changes made, any amount of money they spent would probably save them money in the long run. This country's IP laws are absurd.

Ahhh the 30 billion cash talk again. Apple is too busy trying to get that "cash" right now. They can't spend it because they haven't paid the taxes on it. Apple is too busy lobbying to get their money (tax free) to care about starting a revolution against patents. Why would they? They are doing the same thing. Its business.

0815
Jun 16, 2011, 02:57 PM
I think thats the issue though. Some may see developers not as clients but as developers. I think the difference is yes, they buy the API, but they are using the technology for profit vs. you and me who are buying it to consume it.


But that is something that happens everyday in every big company. Lets say GM buys some electronics from some other company (and that company has licensed that component), even though GM sells the cars for profit (at least one would hope), they don't have to pay license to the company that licensed the technology to the company where they bought it from. If that goes through a chain of several companies it might be even difficult to track everything.

ThunderSkunk
Jun 16, 2011, 03:06 PM
I half expect SJ to deliver a keynote for the iPhone 5, and say "We've made the most popular phone ever for 5 years, written an entire OS platform with zillions of apps, engineered all kinds of really cool hardware for it, changed the way everyday people access and utilize data, and then, we gave away all the $ from doing it, to a bunch of do-nothing companies who couldn't make a damn product anyone wanted to use to save their life. So, new for this year, here's the iPhone 5. (black screen). That's right! There isn't one! Enjoy collecting royalties on nothing, *******s. EEEEEFF YUUUUU"

Really.

Mattie Num Nums
Jun 16, 2011, 03:10 PM
But that is something that happens everyday in every big company. Lets say GM buys some electronics from some other company (and that company has licensed that component), even though GM sells the cars for profit (at least one would hope), they don't have to pay license to the company that licensed the technology to the company where they bought it from. If that goes through a chain of several companies it might be even difficult to track everything.

Depends on the original agreement.

gnasher729
Jun 16, 2011, 03:15 PM
Guys, FOSS patents = Florian Müller = paid Microsoft mouthpiece.

See for example http://iptarget.blogspot.com/2011/06/leverage-if-you-are-threatened-with.html . Title "Leverage If You Are Threatened with Patent Infringement (and why you should ignore FOSSpatents)" At the end of the article: "On a personal note, Florian accused me of being an "anonymous smearer". While I am doing this anonymously, my response still stands: "FYI rebutting factually inaccurate statements does not make me a "smearer", it makes you uninformed"."

There is something that irritates me, to see how giant companies (in this case, Apple) will always have advantage over subjects like these which are, in essence, proving the other side wrong. Apple has a lot of fanboys, and as evidenced by one of the first posts in this thread, people see Lodsys as the 'bad guy' when they are simply fighting for what they think is theirs.

You should probably inform yourself about Lodsys and its patents. See for example http://www.applepatent.com/2011/06/lodsys-hints-from-file-history.html which shows prior art to Lodsys' patent.

Popeye206
Jun 16, 2011, 03:15 PM
There is something that irritates me, to see how giant companies (in this case, Apple) will always have advantage over subjects like these which are, in essence, proving the other side wrong. Apple has a lot of fanboys, and as evidenced by one of the first posts in this thread, people see Lodsys as the 'bad guy' when they are simply fighting for what they think is theirs.

Of course, the bigger company has no issue with this as they have the best lawyers and could very well put high bounties for prior acts. Mmm...

Wow... sorry... these guys (Lodsys) are just patent trolls.

They only look to buy old patents and exploit them for money. These guys are evil to our industry.

I'm all for protecting your Patents, but I hate... really hate... patent trolls like Lodsys.

You have it backwards my friend.

BornAgainMac
Jun 16, 2011, 03:17 PM
Lodsys is getting sued by antivirus software maker now. Probably not enough to close them down.

http://news.cnet.com/8301-1023_3-20070941-93/lodsys-sued-by-antivirus-software-maker/

dashiel
Jun 16, 2011, 03:18 PM
As "Iron-Clad" as we have all thought Apple Legal to be, how could they have signed their license agreement without redlining that clause and having it redrafted?

IANAL, but I would guess that any company that licenses their patents, Apple included, have a clause that prevents them from challenging the validity of the patent. Lodsys is introducing a curious wrinkle in stating both Apple and the developers have to license their IP.

It seems an absurd position to take - it’s a bit like Toyota demanding a Ford Dealer pay them a license fee for the Hybrid engine in addition to the license fee Ford already paid.

Popeye206
Jun 16, 2011, 03:18 PM
Depends on the original agreement.

It does... but in most cases, the OEM agreement would cover the buyer (i.e. GM in the example). It would be very rare that the license would not go with the device.

NebulaClash
Jun 16, 2011, 03:23 PM
Right, we're dealing with the lowest type of patent folks, the patent trolls. Do not feel sorry for Lodsys. They started this fight and are now squawking because people are fighting back. This tiny (one-man?) operation depends on people rolling over and paying up. If they fight, he loses.

We don't even know if the patents are valid yet, which is where all this prior art search is coming from. If the patents get invalidated, nobody owes anything. Which makes Mueller's initial comments on the subject ("devs should just pay and not fight this") so awful. He has no legal background (so it's absurd the way MacRumors keeps quoting him on this subject) and gave some terrible advice to developers.

Bottom line, let the law guys work on this, don't feel sorry for Lodsys (they started the fight), and don't take any legal advice whatsoever from FOSS Patents since his position is almost inevitably what Microsoft would want pushed. Who wants legal entanglements for FOSS (and Apple app) developers? Right, Microsoft.

charlituna
Jun 16, 2011, 03:26 PM
Apple not being allowed to challenge the patent ... that stinks. Didn't know that license agreements can have a stupid clause like that - that should be illegal and every company should always have the right to challenge a patent, no matter if they pay a license fee or not

if they thought the patent was invalid why would they license it. Doesn't make sense.

Apple has said that their original deal included the developers and thru are trying to get added to the cases so their lawyers (almost certainly at Apple's cost) will pled that issue.

Meanwhile other lawyers are pleading the 'it is a stupid patent' concern. Ones in fact that don't seem to have an invested interest in winning aside from the overall nature of the issue.

Mattie Num Nums
Jun 16, 2011, 03:26 PM
It does... but in most cases, the OEM agreement would cover the buyer (i.e. GM in the example). It would be very rare that the license would not go with the device.

Very true, though, with all these patents suits I am starting to realize companies now-a-days are looking to use patents as leverage.

zin
Jun 16, 2011, 03:30 PM
So what is it now, the whole computer industry vs Lodys?

Stok3
Jun 16, 2011, 03:44 PM
if any of this info is correct than Lodsys has already broken the licensing agreement with Apple by going after the devs covered under Apple's license. This is why they attacked the devs and not Apple.
More than likely they will reach a settlement with not only Apple but other companies, which was probably their initial intent. Or they could possibly go broke before any of that happens.

either way,
bye bye greedy patent trolls...

Hopefully our lawmakers can reflect on this case and see the necessary changes that need to happen in the industry and why we need to do away with software patents.

budselectjr
Jun 16, 2011, 03:56 PM
Reggie Dunlop: I am personally placing a hundred-dollar bounty on the head of Tim McCracken. He's the head coach and chief punk on that Syracuse team.

Jim Carr: A bounty?

Reggie Dunlop: Yeah, a hundred bucks of my own money for the first of my guys who really nails that creep.

-LikesMac-
Jun 16, 2011, 04:00 PM
I personally think software patent system needs a HUGE revamp.

I heard in some places (or all?) of Europe software patents are completely invalid.
???

gnasher729
Jun 16, 2011, 04:01 PM
from the article it looks like that apple is not allowed to challenge the validity due to the stupid license contract they have ...

No, from the article it looks like Florian Müller is at it again spreading more nonsense.


if they thought the patent was invalid why would they license it. Doesn't make sense.

Apple licensed this patent as a part of a package deal. And knowing _now_ that it is invalid is not the same as knowing it years ago. It is now known that Lodsys has hidden prior art that mostly destroys their patent: Their invention is on a device giving user feedback to a server. The patent office found prior art about a CD jukebox that let users give feedback about the CDs to a server, so the inventor then claimed that the invention is about a device giving user feedback about the device itself to a server. Well, the device giving feedback is the iPhone. So the only thing that _could_ be covered would be an app that lets the user give feedback about the phone to a server.

kwfergy
Jun 16, 2011, 04:04 PM
if any of this info is correct than Lodsys has already broken the licensing agreement with Apple by going after the devs covered under Apple's license. This is why they attacked the devs and not Apple.
More than likely they will reach a settlement with not only Apple but other companies, which was probably their initial intent. Or they could possibly go broke before any of that happens.

either way,
bye bye greedy patent trolls...

Hopefully our lawmakers can reflect on this case and see the necessary changes that need to happen in the industry and why we need to do away with software patents.

Then what would the incentive be for developing software?

harperska
Jun 16, 2011, 04:08 PM
if they thought the patent was invalid why would they license it. Doesn't make sense.

Apple (and everyone else in the industry) has probably licensed hundreds of patents that in their opinion are invalid. But it comes to a question of ROI. Invalidating a patent requires litigation, and generally litigation costs more than license fees.

Stok3
Jun 16, 2011, 04:20 PM
Then what would the incentive be for developing software?

it would require constant innovation and real competition as opposed to sitting on tech patents that are common in our modern devices (i.e. pinch to zoom, multitouch, in app purchases.) The incentive would obviously be profits for the companies and a higher standard of quality for consumers. Over all its better for everyone.

Glideslope
Jun 16, 2011, 04:37 PM
Why should anyone care if someone sue them in Texas anyway? If I was a developer, I wouldn't.

Do some research on Patent Lawsuits in Texas. Or, let's just say Texas Companies rarely loose suits filed in their home state. ;)

gnasher729
Jun 16, 2011, 04:42 PM
Then what would the incentive be for developing software?

You clearly know nothing about software development. It is what I do for a living. Patents are a curse on software development. Copyright protection means that nobody can steal the software that I create, and I cannot steal the software that others make. Patents however mean that someone can sue _me_ for the software that _I_ wrote. Patents mean that scumbags like Lodsys with patents that are written as vague as possible, with the intent to do nothing useful but to catch out software developers, companies that never, ever have produced anything useful, can extract money from hardworking software developers.

Blazer24K
Jun 16, 2011, 04:50 PM
and three other companies, including the parent company of The New York Times, have since filed similar suits against Lodsys.


ummmm... who exactly is the parent company of the New York Times? The New York Times Company?

Discoverer
Jun 16, 2011, 05:07 PM
Apple should back off. This is none of their business anyway.

Anonymous Freak
Jun 16, 2011, 05:31 PM
The thing is, Apple isn't challenging the validity of the patents, they are arguing that developers are licensed for the patents. I don't see the issue right now.

Yeah, they weren't "Barred" from anything they're already trying to do. They can't do something they haven't TRIED to do, but that's not the same as saying they are "barred" from the lawsuit.

gnasher729
Jun 16, 2011, 05:46 PM
Why should anyone care if someone sue them in Texas anyway? If I was a developer, I wouldn't.

You would when you lose (which you would if you don't appear in court, unless the plaintiff is a complete and total idiot) and bailiffs appear on your door step to collect damages.

Apple should back off. This is none of their business anyway.

Apple's lawyers are of the exact opposite opinion. They say that Lodsys is interfering with Apple's contractual right to use these patents in any way Apple wants. Lodsys claims that certain actions are infringing on its patents. Apple says, and has told Lodsys, that all these actions are done by Apple, and by nobody else than Apple, and Apple has the right to do so due to their patent license. So when Lodsys sues developers for something that Apple rightfully does, then Lodsys is interfering with Apple's rights.

A car analogy: I don't have a driving license, so I hire a taxi to drive me to work. The police tries to arrest me for driving without license. But clearly it is the taxi driver who does the driving. If the taxi driver has a license, then everything is fine. Even if the taxi driver didn't have a license, that wouldn't be my problem. That explains why these software developers are not infringing on Lodsys' patents. But now imagine the taxi driver has many clients without a driving license. And these people stop using his taxi, because there is a policeman who threatents everybody who uses the taxi without a driving license. Even though the policeman is in the wrong, people don't like being threatened, so they don't use the taxi, so the taxi driver loses business. I'd say it would be absolutely right for the taxi driver to sue the policeman. That is what Apple is doing to Lodsys right now. If developers stop writing Mac or iPhone software because they are frightened of lawsuits, that is damaging to Apple.

Dr McKay
Jun 16, 2011, 06:30 PM
Wait, so is this Lodsey barring Apple from defending the Developers? Thats bad news if this is the case.

ten-oak-druid
Jun 16, 2011, 06:42 PM
Happy Hunting

kdarling
Jun 16, 2011, 07:46 PM
The important piece of information that none of us have, of course, is the wording of the license that Apple has with Lodsys.

If it only covers apps that Apple creates, then other software developers could very well be on their own.

My guess is that it vaguely says something like "the licensee's software", which Apple is going to claim includes APIs that they let others use.

If I were a judge or jury, though, I think it'd be hard to convince me that a license for Apple's software magically covers all the software by third parties as well.

It's also really hard to claim that Lodsys is being greedy, since their royalty is only about $4 per $1,000 app sold, versus the $300 that Apple takes. If you're a developer, do you pay that tiny amount, or take a chance on a much larger damages fee if you refuse?

This is a tough one. I'm not on Lodsys' side, but they could have a good case.

0815
Jun 16, 2011, 07:47 PM
if they thought the patent was invalid why would they license it. Doesn't make sense.

Apple has said that their original deal included the developers and thru are trying to get added to the cases so their lawyers (almost certainly at Apple's cost) will pled that issue.

Meanwhile other lawyers are pleading the 'it is a stupid patent' concern. Ones in fact that don't seem to have an invested interest in winning aside from the overall nature of the issue.

Can have many reasons. First of all, they didn't license this one patent specifically but they licensed a whole bundle of licenses at once that included this one. Second, it might be a simple cost analysis that it is cheaper to pay the license fee than taking them to court over it. Brining things like that to court is extremely expensive (thats the reason why Lodsys targeted only small indie developers that don't have the cash to defend themselves - they were hoping for similar arguments, sucking the fee up is cheaper than going to court ... well didn't work out in that case)

Wait, so is this Lodsey barring Apple from defending the Developers? Thats bad news if this is the case.

No that is not the case. Apple is already intervening into the case. What Apple can't do is trying to challenge the patent itself and try to declare it invalid. But they are allowed to defend their case that the license they pay is covering the developers too.


The important piece of information that none of us have, of course, is the wording of the license that Apple has with Lodsys.

If it only covers apps that Apple creates, then other software developers could very well be on their own.

My guess is that it vaguely says something like "the licensee's software", which Apple is going to claim includes APIs that they let others use.

If I were a judge or jury, though, I think it'd be hard to convince me that a license for Apple's software magically covers all the software by third parties as well.

It's also really hard to claim that Lodsys is being greedy, since their royalty is only about $4 per $1,000 app sold, versus the $300 that Apple takes. If you're a developer, do you pay that tiny amount, or take a chance on a much larger damages fee if you refuse?

This is a tough one. I'm not on Lodsys' side, but they could have a good case.

Yap - the devil is in the fine print of the contract and probably worded in a way that no normal human being (only lawyers) can understand it - those who can 'read' it are probably still left with interpretations. I'm pretty sure Apple always read it the way that developers are covered (and I would assume the original patent holder saw it the same way) and Lodsys after purchasing the patents looked for a way to milk it more and probably found a way to interpret it so that they are not - I think it is important to remember that Lodsys did not the original license agreement.

cmaier
Jun 16, 2011, 08:49 PM
The important piece of information that none of us have, of course, is the wording of the license that Apple has with Lodsys.

If it only covers apps that Apple creates, then other software developers could very well be on their own.

My guess is that it vaguely says something like "the licensee's software", which Apple is going to claim includes APIs that they let others use.

If I were a judge or jury, though, I think it'd be hard to convince me that a license for Apple's software magically covers all the software by third parties as well.

There's a pretty decent body of law on this. It's called "exhaustion." And it could very well be that no matter what the license says, the third parties are covered. A lot depends on what, exactly, is supposedly infringing, and whether software API's are treating like physical components in physical products.

Here's the Wikipedia entry - I won't vouch for its accuracy (I note at least one important case is missing, and I didn't read the wikipedia entry to determine if it is substantively accurate): http://en.wikipedia.org/wiki/Exhaustion_doctrine

neko girl
Jun 17, 2011, 12:25 AM
Apple isn't challenging the patents. Thanks for the sensationalism anyway.

CFreymarc
Jun 17, 2011, 12:53 AM
Buy the KY at Costco in wholesale. You do not have the resources to even pay the attorney fees with the trouble you started. By the time this is done, the portfolio is going to be compromised an order of magnitude.

marksman
Jun 17, 2011, 06:00 AM
Wirelessly posted (Mozilla/5.0 (iPhone; U; CPU iPhone OS 4_3_1 like Mac OS X; en-us) AppleWebKit/533.17.9 (KHTML, like Gecko) Version/5.0.2 Mobile/8G4 Safari/6533.18.5)

It does not keep apple and google out. It makes it do apple and google then threaten to join the invalidate bandwagon that others are already on. It WAS easier for google and apple to just pay the patents. May not be so much any more. Lodsys does not have anything close to a slam dunk when it comes to the validity of these specific patents.

caspersoong
Jun 17, 2011, 06:07 AM
This is dragging on for too long... Good luck developers.

MorphingDragon
Jun 17, 2011, 06:31 AM
Damn.

Its crap like this that makes me happy that I live in New Zealand.

jonnysods
Jun 17, 2011, 07:51 AM
I'm not a legal eagle but I can't see how Apple can be removed from this process and just chase after the little guys.

CFreymarc
Jun 17, 2011, 10:13 AM
Clem: "Jethro! Look at that old dusty part of the engineering library."

Jethro: "Clem? What da hell? They are just a bunch of old Ph.D. dissertations going back to the 70's."

Clem: "That's what I mean, those dissertations are full of old artwork. We find prior art done by some Ph. D. that dropped his career for the Peace Corps, that is pay dirt to invalidate Lodsys patents."

Jethro: "Damn! Dem dar gold in those stacks!"

sporadicMotion
Jun 17, 2011, 10:58 AM
Wirelessly posted (iPhone 4: Mozilla/5.0 (iPhone; U; CPU iPhone OS 4_3_3 like Mac OS X; en-us) AppleWebKit/533.17.9 (KHTML, like Gecko) Version/5.0.2 Mobile/8J2 Safari/6533.18.5)

Was it anon? Or lulz thatsaid they were taking requests?

Let's request lodsys

Leave the developers alone.

gnasher729
Jun 17, 2011, 11:21 AM
The important piece of information that none of us have, of course, is the wording of the license that Apple has with Lodsys.

If it only covers apps that Apple creates, then other software developers could very well be on their own.

My guess is that it vaguely says something like "the licensee's software", which Apple is going to claim includes APIs that they let others use.

If I were a judge or jury, though, I think it'd be hard to convince me that a license for Apple's software magically covers all the software by third parties as well.

It's also really hard to claim that Lodsys is being greedy, since their royalty is only about $4 per $1,000 app sold, versus the $300 that Apple takes. If you're a developer, do you pay that tiny amount, or take a chance on a much larger damages fee if you refuse?

This is a tough one. I'm not on Lodsys' side, but they could have a good case.

Apple's argument is actually very different. What Apple is saying is that the developers do not actually do anything that is covered by the patent.

Let's say I write an application that takes your photos, your address, and your credit card number, and sends them to Kodak, which will then print the photos, send them to your address, and bill your credit card. And someone claims that Kodak is printing these photos in a way that infringes on their patent. Then it is clear that _I_ don't do anything that infringes, because I don't do the printing. So it doesn't matter whether the patent is valid, whether Kodak infringes on it, or whether they have a license, and whether that license would cover me: I don't infringe on the patent, so I cannot be sued.

Or lets say I write an application that takes the music that you ripped from LPs, uploads it to a third party cloud service, which removes all the noise and jitter and whatever and sends the music back in perfect quality. If that cloud service is infringing on some patent, that's not my business, because I am not the infringer.

And Apple says the same thing. The actions that are allegedly infringing are all performed by Apple, and not performed by the developer. Therefore the developer cannot possibly be infringing and doesn't need a license, and doesn't need to be covered by any license that Apple might have.

cmaier
Jun 17, 2011, 11:24 AM
Apple's argument is actually very different. What Apple is saying is that the developers do not actually do anything that is covered by the patent.

Let's say I write an application that takes your photos, your address, and your credit card number, and sends them to Kodak, which will then print the photos, send them to your address, and bill your credit card. And someone claims that Kodak is printing these photos in a way that infringes on their patent. Then it is clear that _I_ don't do anything that infringes, because I don't do the printing. So it doesn't matter whether the patent is valid, whether Kodak infringes on it, or whether they have a license, and whether that license would cover me: I don't infringe on the patent, so I cannot be sued.

Or lets say I write an application that takes the music that you ripped from LPs, uploads it to a third party cloud service, which removes all the noise and jitter and whatever and sends the music back in perfect quality. If that cloud service is infringing on some patent, that's not my business, because I am not the infringer.

And Apple says the same thing. The actions that are allegedly infringing are all performed by Apple, and not performed by the developer. Therefore the developer cannot possibly be infringing and doesn't need a license, and doesn't need to be covered by any license that Apple might have.

That's not the argument I saw them make. The argument I saw them make was that if the developers are infringing they are infringing through the use of APIs that are licensed under the patent, therefore the patentee's rights are exhausted.

kdarling
Jun 17, 2011, 12:26 PM
That's not the argument I saw them make. The argument I saw them make was that if the developers are infringing they are infringing through the use of APIs that are licensed under the patent, therefore the patentee's rights are exhausted.

You're right about the exhaustion defense. And I was right about Apple claiming their API is covered by the license, and by extension, any apps using it.

I finally got a chance to read Apple's letter to Lodsys (http://www.macworld.com/article/160031/2011/05/apple_legal_lodsys_letter_text.html), and Apple says:

"Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them."

--

Apple goes on to say that Lodsys' patent claim has three legs:

1) "a user interface that allows two-way local interaction with the user and elicits user feedback"

Apple says this app interface uses their licensed API code.

2) "a memory that stores the results of the user interaction and a communication element to carry those results to a central location"

Apple again points out that it's their API that does this.

3) "a component that manages the results from different users and collects those results at the central location"

Apple says this is their App Store.

--

Now, knowing Apple, they've conveniently left something out, so we'll have to look deeper to see what's missing in their argument.

cmaier
Jun 17, 2011, 02:04 PM
You're right about the exhaustion defense. And I was right about Apple claiming their API is covered by the license, and by extension, any apps using it.

I finally got a chance to read Apple's letter to Lodsys (http://www.macworld.com/article/160031/2011/05/apple_legal_lodsys_letter_text.html), and Apple says:

"Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them."



That bit in italics is the essence of exhaustion.

kdarling
Jun 17, 2011, 07:00 PM
That bit in italics is the essence of exhaustion.

Yes, that's why I included it.

Looking back, I see that I wasn't clear that my entire post was about your points on exhaustion and right of first sale.

I should try not to post while under the gun at work :) (I often reply while waiting for a compile to finish.)

decafjava
Jun 20, 2011, 09:53 AM
There is something that irritates me, to see how giant companies (in this case, Apple) will always have advantage over subjects like these which are, in essence, proving the other side wrong. Apple has a lot of fanboys, and as evidenced by one of the first posts in this thread, people see Lodsys as the 'bad guy' when they are simply fighting for what they think is theirs.

Of course, the bigger company has no issue with this as they have the best lawyers and could very well put high bounties for prior acts. Mmm...

Ummm the issue is the "little guy" the devs being hit - who happen to be important to Apple yes but it is by no means Lodsys who are David in this story.