Apple Steps Up in Lodsys Lawsuits, Files Motion to Intervene

[cmaier]

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.

I addressed your argument, but I'll do it again in more detail. The economics of the NPE business model rely on asking for licensing fees that are less than the cost of litigation, and making profit in volume. So you go after hundreds of small fish, and get a little bit from each, while spending $0 on lawyers. This happens all the time. Several cases like this are filed every day. A company sues 5-10 small fish in ED.Tex (often even mom-and-pop stores that sell infringing products). They get very little money in return, but it's enough to pay the lawyers a little contingency and to fund the next, bigger round of lawsuits. This continues until there are no more victims or until some big fish with an indemnity obligation decides to get involved.

This is the common case, and the default NPE business model.

It also corresponds (at least to an outside observer) to what Lodsys tried to do. From all outward appearances, they were following this exact model.

Then Apple got involved. This was probably not expected, since Apple had already taken a license, and since Apple explicitly disclaims any sort of indemnification obligation to the third party developers.

So, part one of my argument is the "if it quacks like a duck" theory. This also addresses your argument re: small fish.

Part two of my argument approaches it from the other side. You argue that Lodsys' TRUE target was apple. And I ask quite simply: if that's true, why didn't they sue Apple? I also point out at least two ways they could do that, despite the license agreement.

Your logic is akin to saying if a robber wants to mug me, he should beat up a couple of my business associates and wait for me to come after him. Despite the fact that I'm standing alone in a dark alley.

So part two of my argument is "if they wanted Apple's money, they knew where to find it." Also known as Occam's Razor.

While you could (and seem to have) argue that, despite Occam's Razor, suing the little guys could have been a Risk-like maneuver to get Apple involved, I have yet to see anyone suggest even the slightest reason for them to do it that way instead of just taking Apple to court. Heck, they could have sued Apple for indirect infringement by all the developers all at once, in one fell swoop (whether they win is another matter entirely).

 

[miografico]

Part two of my argument approaches it from the other side. You argue that Lodsys' TRUE target was apple. And I ask quite simply: if that's true, why didn't they sue Apple? I also point out at least two ways they could do that, despite the license agreement.

Your logic is akin to saying if a robber wants to mug me, he should beat up a couple of my business associates and wait for me to come after him. Despite the fact that I'm standing alone in a dark alley.

So part two of my argument is "if they wanted Apple's money, they knew where to find it." Also known as Occam's Razor.

I stand by my point from a business perspective. You rely on a legal perspective. The legal perspective is much more black and white and the business perspective is grey.

He didn't want to get into an ongoing license dispute with Apple and chose Texas to fast track a patent infringement suit to get Apple's attention. What is it you do not understand about Apple's ability to drag out a license dispute bleeding him dry if he were to go after them directly?

No matter how much you want to make this black and white your logic is inept in the sense that he would not have the ability to make profit in volume because of the Apple model.

He would not have the time nor the funds to garner the correct legal entity information for all the listed developers on the app store.

Apple would block his attempts to at every turn and hold him up in litigation for everything and anything under the sun they could come up with keeping him from that information.

Developers would flee the platform in mass.

Infringement would cease to exist because not only would the infingers leave perspective developers would not come on board to replenish lost infringers.

The Apple model would be deemed too liable and the model would cease to exist as a whole.

It would have ramifications across the entire mobile industry.

Stop trying to compare this model against other metrics. Unless you can pull up examples of the effectiveness of the NPE model in walled gardens where the majority of the supposed infringers are free to cease infringement at any time. You have zero to compare this to in terms of case law and in terms of an effective model for garnering licensing income.

You're relying on your own assumptions to try to make legal arguments that in many ways are outside the scope of reality. This is new territory.

For you as a lawyer to sit there and say this man, this client, could be that egregiously stupid as to not realize that Apple was going to attempt to come onboard as a co-defendant makes me question your own judgment. If you can then make that assumption and say on top of that he was not provided guidance that would most likely be the case, makes me cringe.

 

[cmaier]

I stand by my point from a business perspective. You rely on a legal perspective. The legal perspective is much more black and white and the business perspective is grey.

He didn't want to get into an ongoing license dispute with Apple and chose Texas to fast track a patent infringement suit to get Apple's attention. What is it you do not understand about Apple's ability to drag out a license dispute bleeding him dry if he were to go after them directly?

No matter how much you want to make this black and white your logic is inept in the sense that he would not have the ability to make profit in volume because of the Apple model.

He would not have the time nor the funds to garner the correct legal entity information for all the listed developers on the app store.

Apple would block his attempts to at every turn and hold him up in litigation for everything and anything under the sun they could come up with keeping him from that information.

Developers would flee the platform in mass.

Infringement would cease to exist because not only would the infingers leave perspective developers would not come on board to replenish lost infringers.

The Apple model would be deemed too liable and the model would cease to exist as a whole.

It would have ramifications across the entire mobile industry.

Stop trying to compare this model against other metrics. Unless you can pull up examples of the effectiveness of the NPE model in walled gardens where the majority of the supposed infringers are free to cease infringement at any time. You have zero to compare this to in terms of case law and in terms of an effective model for garnering licensing income.

You're relying on your own assumptions to try to make legal arguments that in many ways are outside the scope of reality. This is new territory.

For you as a lawyer to sit there and say this man, this client, could be that egregiously stupid as to not realize that Apple was going to attempt to come onboard as a co-defendant makes me question your own judgment. If you can then make that assumption and say on top of that he was not provided guidance that would most likely be the case, makes me cringe.

Your argument seems to be that no one could be so stupid as to think Apple wouldn't get involved, therefore he intended for Apple to get involved.

I think it more likely that he thought Apple might get involved, but due to the license estoppel and lack of indemnity obligation figured they wouldn't, so he was willing to take the risk.

But if we accept "no one could be that stupid" as a principal of argument, why would anyone be so stupid to sue the developers instead of Apple if the goal was to get money from Apple?

I still don't see where you or anyone else has addressed that. This is not an argument:

He didn't want to get into an ongoing license dispute with Apple and chose Texas to fast track a patent infringement suit to get Apple's attention. What is it you do not understand about Apple's ability to drag out a license dispute bleeding him dry if he were to go after them directly?

It's not an argument because:

1) he IS in an ongoing license dispute with Apple. Lodsys suing third parties for patent infringement doesn't change that.
2) he could have been in Texas regardless of whether he sued for inducement of patent infringement or not. The track for inducement is identical to the track for direct infringement. An inducement case is prosecuted in exactly the same manner as the case against third party developers would be, using the same E.D.Tex Patent Local Rules.
3) he IS suing them directly, because they have intervened. They are going to have to fight Apple under EXACTLY the same conditions they would have had to fight Apple if they sued Apple directly. In other words, Lodsys is now in exactly the same position it would have been in if it had sued Apple in the first place. So why did they take the indirect route?

Businessman or lawyer (I'm both actually, thanks), the rules of logic apply.

 

[miografico]

Your argument seems to be that no one could be so stupid as to think Apple wouldn't get involved, therefore he intended for Apple to get involved.

I think it more likely that he thought Apple might get involved, but due to the license estoppel and lack of indemnity obligation figured they wouldn't, so he was willing to take the risk.

But if we accept "no one could be that stupid" as a principal of argument, why would anyone be so stupid to sue the developers instead of Apple if the goal was to get money from Apple?

I still don't see where you or anyone else has addressed that. This is not an argument:



It's not an argument because:

1) he IS in an ongoing license dispute with Apple. Lodsys suing third parties for patent infringement doesn't change that.
2) he could have been in Texas regardless of whether he sued for inducement of patent infringement or not. The track for inducement is identical to the track for direct infringement. An inducement case is prosecuted in exactly the same manner as the case against third party developers would be, using the same E.D.Tex Patent Local Rules.
3) he IS suing them directly, because they have intervened. They are going to have to fight Apple under EXACTLY the same conditions they would have had to fight Apple if they sued Apple directly. In other words, Lodsys is now in exactly the same position it would have been in if it had sued Apple in the first place. So why did they take the indirect route?

Businessman or lawyer (I'm both actually, thanks), the rules of logic apply.

I know I read your bio once again. You're also an iPhone developer. Just a jack of all trades.

I still see no reality in your arguments. You still have yet to make the case on the logical level you so ascribe to attain for exactly how he has a viable business model. So if your assumptions are correct then try and make it with numbers not phrases and maybe I'll take it seriously.

Show me a similar model as it would even somewhat relate to how the Apple model works, knowing that the majority of developers are not accruing any real income. That requires the business hat, not the lawyer hat or developer hat.

If you are correct and can show me how he thought he was going to make more than passable income. You win - he had no idea Apple was going to get involved. Until then... well you already know.

 

[cmaier]

I know I read your bio once again. You're also an iPhone developer. Just a jack of all trades.

I still see no reality in your arguments. You still have yet to make the case on the logical level you so ascribe to attain for exactly how he has a viable business model. So if your assumptions are correct then try and make it with numbers not phrases and maybe I'll take it seriously.

Show me a similar model as it would even somewhat relate to how the Apple model works, knowing that the majority of developers are not accruing any real income. That requires the business hat, not the lawyer hat or developer hat.

If you are correct and can show me how he thought he was going to make more than passable income. You win - he had no idea Apple was going to get involved. Until then... well you already know.

Just so I'm clear - you want me to show you other NPE's whose business model is suing a multitude of small entities for "nuisance value" rather than suing large deep pocketed entities?

If so, google:

npe "nuisance value"

and

troll "nuisance value"

 

[miografico]

Just so I'm clear - you want me to show you other NPE's whose business model is suing a multitude of small entities for "nuisance value" rather than suing large deep pocketed entities?

If so, google:

npe "nuisance value"

and

troll "nuisance value"

No, my friend I asked with a similar model to the the Apple system:

1.) Non easily attainable legal entity information and numbering in the six figure range consisting of sole proprietors, corporations, llc's etc.

2.) The disappearing factor not present in a brick and mortar establishment closing the doors is as simple as removing your application from the Apple walled garden environment with a couple mouse clicks

3.) The ability to keep track of disappearing or no longer infringing entities

4.) The cost to attain any perceivable income from international developers

5.) The costs for an ongoing legal campaign with Apple that could be never ending and on many fronts

6.) The cost of a multifront war once you start pissing off actual companies with expendable legal capital who just happen to also develop for iOS

Yeah, I thought so.

 

[cmaier]

No, my friend I asked with a similar model to the the Apple system:

1.) Non easily attainable legal entity information and numbering in the six figure range consisting of sole proprietors, corporations, llc's etc.

2.) The disappearing factor not present in a brick and mortar establishment closing the doors is as simple as removing your application from the Apple walled garden environment with a couple mouse clicks

3.) The ability to keep track of disappearing or no longer infringing entities

4.) The cost to attain any perceivable income from international developers

5.) The costs for an ongoing legal campaign with Apple that could be never ending and on many fronts

6.) The cost of a multifront war once you start pissing off actual companies with expendable legal capital who just happen to also develop for iOS

Yeah, I thought so.

I am not sure I understand all your list, or how they are relevant. But if google what I showed you you'll find many examples. SLightly different, but also relevant, are the copyright suits you doubtless read so much about where someone sues thousands of john does in order to get subpoenas for ISP's to give over names so that they can demand a couple grand each from a bunch of people sitting at home.


And I also don't see how your question is relevant. Lodsys could have sued Apple directly and been in exactly the same position it now finds itself. You cannot dispute that. So why didn't they just sue Apple directly instead of following the traditional NPE business model?

Answer: Because their intention was to avoid Apple and stick to the NPE business model.

Everything else you raise is just a smokescreen.

 

[miografico]

I am not sure I understand all your list, or how they are relevant. But if google what I showed you you'll find many examples. SLightly different, but also relevant, are the copyright suits you doubtless read so much about where someone sues thousands of john does in order to get subpoenas for ISP's to give over names so that they can demand a couple grand each from a bunch of people sitting at home.


And I also don't see how your question is relevant. Lodsys could have sued Apple directly and been in exactly the same position it now finds itself. You cannot dispute that. So why didn't they just sue Apple directly instead of following the traditional NPE business model?

Answer: Because their intention was to avoid Apple and stick to the NPE business model.

Everything else you raise is just a smokescreen.

I cannot continue on any further than this. It's not me who is raising smokescreens. I gave you the opportunity to present an argument and you directed me to Google.

I answered your question half a dozen times. A licensing dispute would have drained them of their resources and by being the first to strike in a patent infringement case that Apple has to now try and wiggle into they have the upper-hand. (In their eyes not mine)

If you come up with a similar business case / real world example as it relates to mass suing in an environment such as this, with the parties being under the umbrella of one of the world's biggest corporations, and making money doing it while being sued by said corporation for something different every other day - let me know.

Yes, Apple indemnifies itself, but Apple is directly affected by the results of these meritless suits and therefore has to act to protect their ecosystem.

I will put it in simpler terms when you can present me with the profit potential of suing in mass when every target you choose as it relates to Apple developers, where each suit represents a potential legal reaction from Apple, and still make money doing so - have your secretary post that example.

I want a similar test case. It doesn't have to be spot on, but the variables and third party relationships have to be extremely similar.

Until then I consider my input in this thread closed.