even tho the *content* may reside on a 3rd-party server, the "buy more" mechanism is on the app and coordinated w/ apple's servers. thats what Lodsys is suing over, not the content. the mechanism. its definitely on apple's servers.
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Apple Steps Up in Lodsys Lawsuits, Files Motion to Intervene
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even tho the *content* may reside on a 3rd-party server, the "buy more" mechanism is on the app and coordinated w/ apple's servers. thats what Lodsys is suing over, not the content. the mechanism. its definitely on apple's servers.
Sue Apple for what exactly ? He needs to sue infringers. That's the 3rd party developers. You think this guy and his lawyers didn't know Apple would react to them attacking the iOS eco-system ? You think after the letter, they didn't know Apple would step into the lawsuits ?
They filled the lawsuits as a response to the letter to force district (Eastern Texas, where patent plaintiff have better chances of winning) before Apple could bring in a declaratory judgment motion in front of a district that isn't so friendly to patent holders.
What they are doing seems pretty calculated to me. After the letter, it was sure that pushing the attack on the eco-system was going to result in Apple getting involved. The letters were just testing the water. I bet this is all in a bid to either get bought out or to get more licensing money from Apple. This is what is making this guy and his business dangerous to the eco-system. Sure he needs to be stop, the question is though, is there a way ? If the patent is legit (and seeing how old the filing date is, prior art and obviousness are going to be that much harder to prove) and Apple's license isn't as bullet proof as they think it is, Apple might be in for one big payout to save their eco-system.
And anyone saying that Lodsys is getting nothing from Apple due to getting the license from the previous owners, tell me this : Have you seen Apple's licensing agreement ?
They could sue Apple for building into there iOS APIs, functions that allow developers to violate there patent. That is the crux of there case, iOS developers are using Apples APIs designed for in App purchases to carry our (wait for it) in App purchases, which they claim is a violation of Apples rights they have already paid for with respect to the patent. Android is much more likely to be in trouble for this, because while Google has paid for the patent, many (most) aren't using Googles API to do in app purchases, so all those developers could be in violation of the patent, and they don't have the "we are using Googles API" excuse to throw out.
-Tig
The patent isn't about APIs. It's about communicating feedback from an app back to a central source. The APIs themselves don't infringe, it's what the developers are making with those APIs that does.
Go on Apple, step in the ring and bleed those patent sharks of every last drop. Make sure there's some unemployment on Lodsys's part by the time you are through.
Seems like Lodsys was looking for some easy money and brought now almost every major company against them. Some companies were already paying licenses - the result will hopefully be that the patents are getting declared invalid which will result in putting Lodsys out of business since all they have to offer are some pretty lame (soon invalid) patents. Guess they weren't anyway doing to good since most license deals were with the previous owner through some bulk licenses and they figured before shutting down its worth a try to milk it a bit more (not much too loose).
Sorry, you are basically wrong, and now arguing against your basic premise anyways. You believe that Lodsys wanted and expected Apple to get involved. If that were true, they could have filed because the APIs were written to violate the patent, Steve talked about in app purchases when it was added its not like developers did sneaky things and got it to do this, its the expected result from the APIs. They also could have sued apple because they are selling Apps that violate there patent, they also could have sued Apple for the money they are getting and transferring to developers for the In App purchases that they believe violate the patent. They didn't do that, instead they sued at least 7 developers not even waiting for the 21 days they promised the developers to negotiate once the letter from Apple is published, that doesn't sound like a plan coming together that sounds like a plan falling apart. Which anyone who knows Mark Small from his McAfee days, would say that sounds like Mark if you told them what happened. I honestly don't think Lodsys has a leg to stand on in the suit, I am just pointing out that KnightWRX's theory that this is exactly what Lodsys expected to happen and they haven't been surprised by Apples actions seem more then a little far fetched.
No knight is right. They could not file suit with Apple. It is impossible to file suit with Apple because Apple already had an agreement with the former owner of the patents that Lodsys bought out.
So they go after the smaller devs hoping that Apple would get involved and pay millions to make Lodsys go away.
The flaw in your reasoning (and it's a small one) is that these cases are not going to turn on issues of patent law, and hence choice of venue is probably not in Lodsys' favor. E.D.Tex. has all sorts of patent local rules (and perhaps juries) that give some advantages to patent holders suing for patent infringement. But the issue in this case is going to be whether or not Apple is licensed and whether the license is exhausted or passes through to the app developers. While I'm sure Apple would rather be in N.D.Cal., I doubt they are too concerned at being in E.D.Tex. given the strategy they are likely to take.
Of course not. But given Quanta and TransCore it would likely be pretty difficult to draft a license that doesn't pass through to the developers (not impossible, of course). I also know enough about this type of situation to suspect that Apple's attorneys wouldn't have paid for a license in the first place unless they were pretty confident the license would pass through - this is standard procedure anytime an infrastructure provider is contemplating a license deal.
I haven't seen anyone else mention it, but IBM is apparently attempting to patent the concept of using a computer to enforce a patent portfolio. If granted and upheld, this patent would do a lot to alleviate patent trolling. I am attracted by the meta-nature of this approach (trolling the trolls). Let's hope IBM's attempt to invent its own kind of APT is successful.
I never went against my basic premise. The APIs are merely tools made that can be used to infringe on this patent. They don't require a license of the patent to exist. However, a developer using those APIs to make tools would need one.
Lodsys did expect Apple to intervene, by attacking the eco-system. If Apple didn't intervene, they would have been shedding developers (the smaller ones that can't afford the stress and costs of lawsuits) like crazy, which would have been bad for them.
In the end, Lodsys is expecting Apple is give them more money for a broader license that covers 3rd party. That's the "plan", you can be sure about that. Apple believes their license already does.
Knight has been exactly right here on many counts. The lawsuit against the seven developers were not about API's. They were about what those API's allowed the developers to accomplish - in app purchasing.
I unlike lots of people here - who get their posts voted up even though they haven't the faintest clue - design for the platform so I had to read through the filings to know what I was dealing with in case one of my clients was ever sued.
Even if you do not read through the filings it's plainly obvious by going to Lodsys's own website and reading their response to Apple's letter that it was never about the API's which we use, but the lack of licensing for the result of using those API's.
It's also plainly obvious why they didn't sue Apple to begin with, but if you don't get it yet:
1.) They are already in a contractual relationship with Apple as Apple is licensed and no one knows the terms of that agreement. Apple would most likely crush them in court on what would not be a patent dispute, but a contract dispute in relation to patents.
2.) Apple has a history of saying piss off to smaller organizations that try to sue them and would simply hold the processes up before it even went to court.
It was a bold move on their part because unfortunately now Apple is backed into a corner and only has three options:
1.) Try to hold up the process as long as possible with legal maneuvers and pray Illinois moves fast enough to throw the patents out for being too broad based. That would however not stop the process in Texas as that case came first and they could only use it against the plaintif to make their case.
2.) Pay them off if the Texas court decides against the developers with Apple as codefendant with a settlement. Then turn around and countersue them if the patents are declared invalid.
3.) Enter into a private settlement before the case goes before the judge in Texas and then turn around and sue them if the patents are declared invalid in Illinois.
If you're a gambling man the patents will be more than likely be declared invalid. This isn't Joe Schmoe who initiated the declaratory judgment proceeding, but a moderately sized tech company with one of the best IP law firms in the country, and with the backing of some of the biggest companies in America that want these patents thrown out.
No one here has any idea what the original license(s) between Intellectual Ventures and Apple looked like, but a lot of people sure like to spew out BS like they do. All I keep hearing is, "No, no you're wrong Apple never paid Lodsys one cent!" assuming that patent agreement licenses are like as I said before: Buying a coffee pot from Sears.
Of course Apple originally paid Intellectual Ventures, but it is honestly very doubtful that they bought a lifetime license to the patent(s) and Lodsys may very well be receiving licensing income from it still. Let's say Lodsys never received license payments from Apple as it was a one time payment to Intellectual Ventures, it then becomes very doubtful that the IV CEO made a lifetime one time payment licensing deal with one of the biggest players in tech, and the license was soon set to expire anyway.
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Again KnightWRX, you are proving my point. You believe they wanted Apple to get into this. Even if I were to agree that they can't sue Apple directly (which neither I nor several others with actual law degrees believe is true) your side still hasnt explained why you would start at least 7 cases when your goal is to get money from Apple. That is 6 more cases then they need to do that, and for Lodsys that silly since those lawyers need to get paid. Evans' First Law is don't believe its Rocket Science, when sheer stupidity is more likely, and given Mike Small's involvement really makes those who know him lean towards the stupid option.
What point of yours did I prove ? Going after 7 is simply shock tactics. If they went after 1, it can be ignored. I still firmly believe all of this is calculated by Lodsys and what they want is a settlement from Apple (go after the big pockets right ?).
And look just above your post, someone went into even more details than I ever could. I'd rather over-estimate my ennemies and be prepared than under-estimate them and get caught in their trap when it's too late.
One, there aren't seven cases get your facts straight. There is one case with seven co-defendants. Two, what are they going to sue for? No wait let me ask you some better questions: What do you do for living? Are you in development? Are you in tech in any way in general? Do you read license agreements when you install your software?
I don't think anyone who has posted in this particular thread thus far has a law degree because there is so much misinformation, and ass backward rhetoric, I wouldn't want to get involved if I was a lawyer and member of this forum.
Apple is contractually bound to LodSys and LodSys contractually bound to Apple they have a patent license between them. Apple indemnifies themselves from suits when you agree to use Xcode to develop for their platform(s) and they also indemnify themselves for all submissions to both the iOS and the Mac App Store. You agree when you click, "I accept" that they are not liable for using their software/systems in the event of a suit.
So, let me make this clear again and in a much shorter post. LodSys could not sue Apple over the patent(s) they can only sue LodSys over their licensing agreement to those patent(s) and vis-a-vis.
A licensing agreement suit pertaining to the usage of patents (which could involve LodSys claiming Apple gives broad use to developers and that wasn't agreed upon) is a patent licensing dispute - not a patent infringement case.
Apple would crush LodSys in a simple licensing case. They have the resources to drag a licensing case out ad infinitum, and because Apple indemnifies itself from recourse by all developers the case would go nowhere if that were LodSys's primary argument.
Why is it so hard to grasp that?
That would be a weird litigation strategy. It's far more common for NPE's to go after small pockets and demand far less than it would cost to litigate. They go after 5-10 at a time to spread the litigation costs, and use the earnings from the first round to fund litigation on the next. The last thing Lodsys really wanted was to have to fight Apple.
That's a ridiculous assumption. Each case has their motive Best Buy, Adidas etc, but out of the developers they chose to sue as it pertains to Apple (this is one suit not seven) they would be receiving pennies on the dollar per month in a licensing deal if they won - and if that was their real intention.
If you cannot see the strategy was to bypass a license dispute suit by hitting Apple where it hurts then you're obviously a bad Risk player.
This was a gamble for them. They are going to lose because of the other non related cases they have pending, but their intention all along was for Apple to get involved.
Lets see here do I want $50 a month from some no name developers or do I want $50 million upfront in a new patent licensing agreement with Apple!
I'm probably a bad Risk player - I'm just an ignorant patent litigator, and I was commenting on what, in my experience, is the standard strategy by NPEs. Fighting Apple costs them (or their contingency lawyers) millions and millions of dollars. Fighting small developers and fighting entities that don't have real skin in the game (because they don't really lose anything beyond the initial payout if the patents stand) is essentially free - most such cases settle before anyone's even appeared in court.
And ain't no one getting $50M upfront from Apple - Lodsys knows this.
And answer me this, smart guy - if they wanted a confrontation with Apple, why didn't they just sue them? Despite the nonsense on this thread, they presumably could have sued Apple, despite the license, for INDUCING patent infringement by the developers. In the alternative they could have sued for a declaratory judgment that the license doesn't extend to third-party developers.
I read you bio. I saw what you were.
As a lawyer why don't you then ask yourself why they chose not to go after the iOS success stories? Where is Rovio in this suit? (Angry Birds) Or do I have to go down the list of companies they could have chosen to sue.
You're a lawyer I am a businessman we disagree on some points either way we should both agree that if you look at the offer they originally tendered and who they chose to sue - it was a calculated decision and even if they prevailed they would make nothing in terms of licensing income.
I stand firm on if they directly approached Apple it's a licensing dispute with zero leverage and if they attack the ecosystem it's a potential body-blow that Apple has to compromise in defense.
What you say makes sense if this were a different case where the defendants were all big name players, but it makes zero sense in the context you put it.
Say Apple never got involved and they did prevail in this initial suit. What's next? They use that as the go ahead to target all iOS developers? You don't think Rovio and bigger names than that wouldn't burry them in a mound of lawsuits initiated from their side(s). Even if they were that ballsy they would have to have a printout of all the legal addresses for all the developers on the App store because they wouldn't Google search over 100k developers for their legal addresses. You think Apple is going to gladly hand that over?
No one says this guy is all together in the head in terms of realistic expectations, but I can see right through the core to what he wants whether it is legally reasonable in your point of view or not. He wants a big payout not chump change every month from shoestring budget companies.
Again I ask (perhaps you missed it) - why didn't they just sue Apple seeking a declaratory judgment that the license doesn't cover the developers, or sue Apple for inducing patent infringement by the developers? If Lodsys' goal was to confront Apple, this would have made a lot more sense, and guaranteed them a choice of venue.
Spending $500 of attorney time to earn a few thousand dollars a month isn't a bad deal, and there are a LOT of little developers. Spending $5M to earn $1M isn't a good deal. And, again, if he thinks he's going to get $50M from Apple, he could have sued Apple instead of putzing around with the little developers and hoping Apple gets involved.
Ok so in your perfect world why did Apple let is go this far? Why did they let Foresee be the first to ask for a declaratory judgment invalidating the patents and a change of venue? You're asking questions like you and I have foresight.
My assumption and I am sticking to it is that he was advised he would make little to nothing trying to track down thousands upon thousands of developers and get them to pay up as opposed to striking a blow right between Apple's eyes in hopes of a payout. I am sticking to that and no matter what your credentials are I am not looking at it from the legally reasonable standpoint. I am looking at it from the if I was a crazy #### one man patent-troll business standpoint.
But, why don't you ask yourself a question since you yourself are an IP litigator. You really think he didn't expect Apple to get involved after he filed suit? Was it not ever so obvious that would happen? You wouldn't advise your client that what you are doing is goading a mammoth corporation to try to intervene to save their market?
And, don't be trite with your $50 million is an absurdity that, "ain't" going to happen. This is a multibillion dollar industry and if their back was against the wall, and that was the only option to make it go away - it would happen in a heartbeat.
This was all a game and it doesn't matter anyway because he has overplayed his hand.
We should all be thanking Foresee and not Apple. Apple dropped the ball on this with their BS strongly worded letter.
I don't think you addressed my question. If lodsys's end goal was to extract money from Apple, why didn't they sue Apple instead of the third parties?
Instead you seem to have changed the subject. Why did Apple let it get this far? What is it you wanted Apple to do? They made pretty much the only motion they could make. The one thing they could have done differently is earlier sought declaratory judgment that the license covered third parties, but there is difficulty perhaps with standing - the threats were directed not at Apple but at third parties. Personally, though, if it were me I would have suggested trying it, but the end result is essentially the same other than venue. Either way, Apple is going to argue this is a contract interpretation, not a patent infringement case. Either way Apple is involved and running the case. The only difference is location.
And as for whether he expected Apple to get involved, who knows? But given that Apple has already bought a license (thus making it difficult, but not impossible, for Apple to dispute patent validity), and given that he is asking for so little from each developer, yeah, I think he didn't expect Apple to get involved.
And you sir have not proven your points based upon the facts that 3/4 of iOS developers are making chump change that would make his grand licensing scheme a futile endeavor. Yet, you stick to that argument as I stick to mine. If you would read my posts above yours you would see I already answered your question(s) the same way in which you just answered mine. If they go after Apple it's a licensing dispute not a patent infringement suit. You will also read in my previous posts the reasons I believe they do not want to do that.
Perhaps reading my other posts would above yours would aide us along in progressing this argument further.