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Apple Backs Developers Against Lodsys Patent Threats, Says Devs 'Undisputedly Licensed'
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Yup, and now it is time for find the attorney at the law firm representing Lodsys here. Considering the seniority of the attorney, or worst just a paralegal, it will either be a write up in their loss column for their review, dismissal or something to laugh about during a martini lunch.
Not really. If you really believe Lodsys legal team didn't consider a scenario where Apple would respond like this, then you need to take a step into the real world. The question is what Lodsys planned to do once Apple issued this response. We'll find out soon enough. I doubt we've heard the end of this issue yet.
What a crock. The App store was created out of whole cloth by Apple. The devs were invited to come play after the foundation was laid, and provided all of the tools they needed to make money. Apple said, "You want a safe place to build your products, come on in. Just pay us for the fact that we developed the concept, and we built the infrastructure." A mobster comes in after the fact, when you have already built your business, and offers you "protection" to stay in business.
How much money would most of these devs be making if Apple hadn't started the App store? I suppose that eBay was a "mob" idea, too?
This is the mentality that has this country on the brink of ruin. The thought that companies like Apple, who build the infrastructure to make money for their shareholders are somehow less for doing so.
Grow up.
Yay Apple!
For all the criticism Apple receives, it is a company that makes money by developing new products that do enrich people's lives. The same can be said for the software developers. What does a company like Lodsys actually contribute to the world?
For all the criticism Apple receives, it is a company that makes money by developing new products that do enrich people's lives. The same can be said for the software developers. What does a company like Lodsys actually contribute to the world?
Lodsys is a one- or two- or three-man shop with some sketchy patents. Apple has a building full of enormously well paid lawyers. Now that they are involved, why would Apple settle for a dime? All that would do is encourage the next attack on iOS developers. Apple isn't going to give an inch.
Ha. Well I guess the real test of whether a company is actually contributing anything to the world is this: if it were disappear tomorrow, would anyone outside the company be worse off? I dare say the answer is no. They didn't create the technology, just bought the patent to someone else's idea so they could make money from charging a license fee. It's the same with domain name squatters they're simply taking advantage of a system in order to line their own pockets. They contribute no useful product or service to the community.
Copyright should offer more than enough protection from having your software stolen in either units or ideas.
No, Apple undisputedly owns a license. Lodsys says so on their website. i.e No dispute. The dispute is that the developers require their own license, which they don't, as long as they use Apple's APIs and servers for said service.
Though I do agree that the patent is a load of bull and should just be abandoned all together, I don't think Apple has much of a point in their counter-case. Just because Apple is licensed, doesn't mean all the apps are. Apple would be licensing their OS and their own apps, not all the apps on their OS. If that were the case, then no software company should ever get sued, it should be the OS writers for providing an OS with the ability to do said patented idea.
This is far from over...
Apple's response, at this point, is little more than PR posturing. Here's why:
First, all patent licenses are unique, and the scope of a license depends on its particular terms. The quesiton will be whether Apple's license granted it the right to provide the APIs in question to third parties, or rather was limited to Apple's own use of the IP.
If Apple's license grants Apple the right to "provide" or "sell" the APIs in question to third parties, then Apple's argument that the exhaustion/first sale doctrine bars infringement suits against its developers likely has merit. Under an alternative theory, Apple would have a strong argument in such case that its express license included an implied license for each developer utilizing Apple's APIs.
However, if Apple's license only grants Apple the right to "use" (and not sell) the software in question, then the license granted to Apple would only extend to Apple. Apple's provision of the APIs to developers would not be "authorized sales" of the IP, which would mean that the doctrine of exhaustion/first sale does not apply. This is the more likely scenario, I believe, because you will notice that Apple's response letter does not directly quote any language from the licensing agreement which states that Apple has been licensed to provide the APIs to third parties. Rather, Apple merely broadly asserts that there is no dispute as to the fact that Applie has "licensed" the IP. This seems like a deliberate obfuscation.
Second, there is very little Apple can do to Lodsys here unless Lodsys actually pulls the trigger and sues one of the developers. (In that case, Apple could only intervene and defend the developer.) Because the threats Lodsys made were against the developers and not Apple itself, Apple likely does not have legal standing to preemptively sue Lodsys for a declaratory judgment of non-infringement or patent invalidity. Lodsys would argue that Apple has no reason to itself fear legal action from Lodsys because Apple itself has licensed the IP, and Lodsys could even unilaterally grant Apple a covenant not to sue Apple. Lodsys could then continue threatening Apple's developers with impunity and Apple couldn't do a damn thing about it. The threatened developers themselves would have legal standing to bring declaratory judgment actions against Lodsys, but they will not do so for lack of resources. Apple would have to either (a) convince one of the developers to sue Lodsys, with Apple's financial and legal backing, or (b) agree to indemnify all of its developers against patent infringement suits relating to this tech, thereby giving Apple itself standing to sue Lodsys. Apple has not yet taken either of these steps.
The ball is in Lodsys's court now, but rest assured, Apple has done little to actually threaten Lodsys here. This letter was mostly a PR move to attempt to ease developers' fears, not a substantive legal counterpunch to Lodsys.
Cheers!
-X
Apple's response, at this point, is little more than PR posturing. Here's why:
First, all patent licenses are unique, and the scope of a license depends on its particular terms. The quesiton will be whether Apple's license granted it the right to provide the APIs in question to third parties, or rather was limited to Apple's own use of the IP.
If Apple's license grants Apple the right to "provide" or "sell" the APIs in question to third parties, then Apple's argument that the exhaustion/first sale doctrine bars infringement suits against its developers likely has merit. Under an alternative theory, Apple would have a strong argument in such case that its express license included an implied license for each developer utilizing Apple's APIs.
However, if Apple's license only grants Apple the right to "use" (and not sell) the software in question, then the license granted to Apple would only extend to Apple. Apple's provision of the APIs to developers would not be "authorized sales" of the IP, which would mean that the doctrine of exhaustion/first sale does not apply. This is the more likely scenario, I believe, because you will notice that Apple's response letter does not directly quote any language from the licensing agreement which states that Apple has been licensed to provide the APIs to third parties. Rather, Apple merely broadly asserts that there is no dispute as to the fact that Applie has "licensed" the IP. This seems like a deliberate obfuscation.
Second, there is very little Apple can do to Lodsys here unless Lodsys actually pulls the trigger and sues one of the developers. (In that case, Apple could only intervene and defend the developer.) Because the threats Lodsys made were against the developers and not Apple itself, Apple likely does not have legal standing to preemptively sue Lodsys for a declaratory judgment of non-infringement or patent invalidity. Lodsys would argue that Apple has no reason to itself fear legal action from Lodsys because Apple itself has licensed the IP, and Lodsys could even unilaterally grant Apple a covenant not to sue Apple. Lodsys could then continue threatening Apple's developers with impunity and Apple couldn't do a damn thing about it. The threatened developers themselves would have legal standing to bring declaratory judgment actions against Lodsys, but they will not do so for lack of resources. Apple would have to either (a) convince one of the developers to sue Lodsys, with Apple's financial and legal backing, or (b) agree to indemnify all of its developers against patent infringement suits relating to this tech, thereby giving Apple itself standing to sue Lodsys. Apple has not yet taken either of these steps.
The ball is in Lodsys's court now, but rest assured, Apple has done little to actually threaten Lodsys here. This letter was mostly a PR move to attempt to ease developers' fears, not a substantive legal counterpunch to Lodsys.
Cheers!
-X
If you had bothered to read the patents you would have seen that Apple is absolutely right. The patents are things that you can do by communicating between devices and a server. The server is Apple's server. The devices are built by Apple with the communication software built in. If you buy an iPhone, without any of the applications whose developers are being sued, the invention is already present on the iPhone, and Apple has a license. The developers don't actually include the invention in their application, they are just using it. You need a license to build the invented thing, not for using it.
An analogy would be that the freezer in your home is covered by multiple patents, and the company building the freezer has paid for licenses to all these patents. Now one of the patent holders starts suing you for using their invention.
Things would be different if a developer wrote their own implementation of this invention which would contact their own servers. For example if Microsoft ported Word to the iPad, and Word contacted Microsoft's servers using code written by Microsoft, not Apple's code in the OS, and downloaded updates from Microsoft's servers instead of Apple's, then they would have to worry. Although it seems that Apple also has the right to sublicense the patent, which would then cover that case as well, but isn't required for the typical developer.
If Lodsys makes threats against developers writing software for iOS devices then this is quite obviously interfering with Apple's business and damaging to Apple - as is clearly evidenced by the fact that we are discussing this at all on MacRumors.com, and not on www.littledeveloperrumors.com. And anyway, Apple _can_ sue Lodsys for a declaratory judgement, or for illegal interference with Apple's business, because anyone can sue anyone, and they might just do that in order to cost Lodsys money.
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We do not know the scope of Apple's license yet--i.e., whether it was a license to "provide" or "sell" the IP to third parties, or merely a license for Apple to "use" the IP. See my post above...
Incorrect. While the issue of a manufacturer's standing to bring a declaratory judgment based on threats made against its customers is not entirely settled after the Supreme Court's decision in MedImmune, it is at least clear that pure economic harm to Apple caused by the threats to its customers would not be enough to create an Article III case or controversy. See here and here.
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Not sure I understand why can't Apple make the first move?
Apple as stated are under the impression that they negotiated rights that cover the API's for the use of 3rd party developers to access Apples Implementation of the patents to create the App store. Apples keeping it's side (we assume and paying as required) of the deal but is calling in to question if other party is keeps theirs.
I'm confused as to why Apple being one party to a contract can't initiate action if they belief the contract to be in dispute and not being acted on in 'Good Faith' by the other party?
*disclaimer: Most of direct dealing with contract is as an Architect not a Lawyer. These contracts are for building works in Australia not USA.
If, in Apple's licensing agreement, Lodsys agreed not to sue or threaten any of Apple's customers based on their use of the IP, then Apple would have standing to bring a breach of contract action against Lodsys. However, it is very very unlikely that the licensing agreement includes any such agreement not to sue Apple's customers. Even if it did, Apple's lawsuit against Lodsys would be a pure breach of contract action that, while it might entitle Apple to contract damages, would have no effect on Lodsys's patent rights in relation to the third party developers. That is, Apple could not assert non-infringement or invalidity arguments as a basis for any breach of contract claim, because those issues are irrelevant to the question of whether the (hypothetical) contract between Apple and Lodsys has been breached by Lodsys's threats.
These developers are not just "customers". Their work adds value to Apple's products. The number of apps for iOS is a major selling point, and Lodsys interferes with that selling point.
I hope Apple knocks Lodsys back to the stone age...
I believe that patent lawsuits should be allowed if the plaintiff can actually show (1) they are commercially exploiting the patent for its intended use and (2) they can demonstrate loss of earnings. The damages should be limited to the lost earnings.
But that's just me talking...
I believe that patent lawsuits should be allowed if the plaintiff can actually show (1) they are commercially exploiting the patent for its intended use and (2) they can demonstrate loss of earnings. The damages should be limited to the lost earnings.
But that's just me talking...
They are at once customers and independent contractors. From a Constitutional (Art. III) perspective, it does not matter how valuable their work is to Apple's business. Even if the Lodsys actions against developers were threatening to put Apple out of business, there would still be no legal standing for Apple to bring a declaratory judgment action. This is because the harm to Apple remains purely economic--i.e., Lodsys has not yet done anything to threaten Apple's LEGAL (not ecomic) interests. There is thus no Art. III "case or controversy" as required by the US Constitution and the Declaratory Judgment Act, and the federal courts lack jurisdiction over any declaratory judgment action brought by Apple.
Well, the delay from Apple would have been due to them running this by their multitude of lawyers to make sure that they are in the right (or if not, make sure they will kick Lodsys backside should it come to it)
I think that Lodsys will review the situation and find that they are ****ed.
I think that Lodsys will review the situation and find that they are ****ed.