EFF Urges Apple to Support Developers Against Lodsys Patent Threat

[MongoTheGeek]

LOL. You should go to law school. You can be the first lawyer to do pro-bono work that a billion-dollar company should be doing to help themselves.

I wasn't thinking Apple should be the one to do this. They might file a nice amicus brief but I don't expect them to carry the load.

If the various sued developers get together in a class action suit the costs would out to around what Lodsys wants for licenses. I am not sure you could argue for much in the way of damages so the developers would pay something.

 

[mack pro]

Apple doesn't have time to deal with this they're too busy suing everybody and their brother.

 

[HobeSoundDarryl]

My opinion is that Lodsys has a right to its patent. But then I saw that Apple is complying with that patent already. Can one application of the patent require both Apple and the developers to pay patent right costs? If Apple is already paying for the use of it, does that not cover the developers selling apps within Apple's app store and running on Apple's iOS devices?

Apple is both an app creator and keeper of the store. It is probable that Apple licensing the patent was to cover their own app creations sold in their store. Lodsys going after the other devs is probably about asking them to do the same (thing that Apple chose to do).

In other words, suppose that Apple wasn't allowed to both run the store and be an app developer too. They split the app developers off to their own company: Apple-cations. This new company would probably need this license. The old Apple (the one that governs the store (and to which devs pay 30%)) probably wouldn't need the license.

 

[bamf]

Maybe I'm completely wrong here, but I think there is no way that Lodsys is going to file suit over these small alleged infringements on their patent.

Doing some quick reading, it looks like most patent claims cost ~$1,000,000 to go through the court system, and it is very difficult to get attorney's fees/costs from the defendant unless you can prove that the infringement was willful.

I do not think that Lodsys is going to risk $1M USD on each developer potentially to get less than $5,000 per claim.

This is a scare tactic. They want to make these developers pay up, but their payout if they take them to court is nowhere near the cost to do so.

Source material

 

[iLilana]

full disclosure

Should apple be liable for the developer costs due to lack of disclosure? It sounds as though they knew about this and really didn't tell anyone.

 

[BC2009]

Software development is a mine field of patents. Software patents are not fostering innovation, they are stifling it. Drastic change is needed to fix this.

Software patents should only be considered valid during litigation when a valid software product incorporating the invention is actively marketed and sold by the patent holder that holds the patent. You can hold the patent until its normal expiration, but if you plan on going after somebody for using it, then you must be marketing and selling a real software product (and not just some bogus facade of a product) that incorporates the patent.

If you don't produce a viable product incorporating the invention within 24 months (i.e.: you are squatting on it and waiting for somebody to stumble across it on their own and thus infringe) then the patent should enter a "dormant" state. During the dormant state, any company incorporating the invention into a product automatically receives a perpetual unrestricted license to use the patent. The patent can only become active again once the patent holder releases (and makes available for sale) a software product that does incorporate the invention. However, any companies leveraging the invention during the dormant state are automatically grandfathered in because of the automatic perpetual unrestricted license.

If the patent holder releases a product, but ceases to make that product available that incorporates the patent for a 24-month period or fails to sell a minimum number of software product licenses within that 24-month period for their product (i.e.: the product is not viable), then the patent should also enter the dormant state.

Basically, this makes it far more expensive for patent trolls to operate, and it prevents folks from squatting on patents and then realizing their value once somebody else innovates and invents the same thing for themselves. You can hold your patent, but if five years down the road somebody else innovates in a way to create value for your patent you can then choose to release your own product, but all you can do about the already-released products of other companies is thank them for showing you how useful your patent might have been if you had gotten off your butt and done something with it.

 

[ten-oak-druid]

Apple is both an app creator and keeper of the store. It is probable that Apple licensing the patent was to cover their own app creations sold in their store. Lodsys going after the other devs is probably about asking them to do the same (thing that Apple chose to do).

In other words, suppose that Apple wasn't allowed to both run the store and be an app developer too. They split the app developers off to their own company: Apple-cations. This new company would probably need this license. The old Apple (the one that governs the store (and to which devs pay 30%)) probably wouldn't need the license.

I see what you are saying and you are probably right. The only thing I question though is that the button is for the use of accessing apple's store for upgrading. It is not as though they are using a feature that takes the user outside of the app store experience. It seems like that might be an important distinction. I'm sure it will be a factor in the lawsuit if Apple decides they thought their payment for use of the patent was to allow app store apps access to the app store from within the app itself. If apple feels they wrongly believed this was the case, they may argue to reduce their fees for the patent. If that is possible? I don't know. It will be interesting to see what Apple says.

It would be funny if the Amazon app was one of the affected apps by this situation and Apple were to defend developers. They would be fighting a legal battle on behalf of amazon while fighting them in court in another case.

 

[yourstation]

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I am with Apple on this. The term 'App Store' is a term which identifies a product that Apple brought to Market. Obviously Amazon and other have brought their own versions to Market too but it more of a brand name than a descriptive generic term. Just call it Android Store!

 

[chrono1081]

Should apple be liable for the developer costs due to lack of disclosure? It sounds as though they knew about this and really didn't tell anyone.

Um...no.

The part the article talking about regarding Apple eluding to not being responsible for legal matters is more with regards to a developer using a piece of copyrighted music in a game, or trademarked art or something.

The issue at hand is developers are getting sued because of a technology that is part of the API that Apple gives developers. Apparently Lodsys thinks that Apple buying a license wasn't enough and sat on this for 2 years roughly (I forget when IAP came out) and then decided to sue the little guys using Apples technology. Lodsys is in the wrong here, at least morally.

 

[yourstation]

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Don't see any mention of the RIMS, Androids and other software stores being involved or asked to take a stand. Hopefully, they will do their part and not just free load on Apple's efforts. A concerted effort by all of them would certainly have a better result.

Absolutely but as the largest they went straight for the big bucks. I see the mist straightforward way to proceed would be an updated developer agreement that will have apple collect this royalty on behalf of developers for future sales (I.e. In addition to the 30%). In exchange for Apple taking a major pro-active role all action against developers for backdated monies should be dropped.

 

[ComputersaysNo]

Here's a crazy thought coming from a non-lawyer background:

What if Apple hires all developers for a $1 contract? Doesn't the apps 'belong' to Apple then, thus following the license Apple has payed for?

 

[miografico]

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Absolutely but as the largest they went straight for the big bucks. I see the mist straightforward way to proceed would be an updated developer agreement that will have apple collect this royalty on behalf of developers for future sales (I.e. In addition to the 30%). In exchange for Apple taking a major pro-active role all action against developers for backdated monies should be dropped.

That would be them admitting guilt... So when the next patent troll comes along are they going to then add that on to their 30% fee?? How long will it be before 30% = 60% and it's not worth it to develop for iOS at all???

There is no possible way they can do what you just said.

 

[skellener]

Developers should expect something for that 30% Apple App Store tax besides just distribution.

Absolutely.

 

[DTphonehome]

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Apple should tell them they will buy the patent for $100k, or bleed them dry in court. Give them a taste of their own medicine.

 

[admanimal]

But only if they can. Apple has licensed the technology from them, so Apple admits by their own action that the patent is valid and worth licensing.

The question is whether Apple specifically found and licensed the patent in question or if they simply licensed a bunch (like thousands) of patents in bulk, which is not uncommon, and this happened to be one of them. I believe one of the FOSS articles discusses this.

Here's a crazy thought coming from a non-lawyer background:

What if Apple hires all developers for a $1 contract? Doesn't the apps 'belong' to Apple then, thus following the license Apple has payed for?

This would probably make things extremely complicated for Apple, and possibly developers, from a tax and liability standpoint.

 

[ciTiger]

I also think that Apple should step forward on this... The developers favor iOS greatly and Apple stepping in would go along way to keep the developers happy...

 

[HiRez]

Here's a crazy thought coming from a non-lawyer background:

What if Apple hires all developers for a $1 contract? Doesn't the apps 'belong' to Apple then, thus following the license Apple has payed for?

Haha, that's probably impossible for all kinds of reasons, but I like your thinking. You might be right that they'll have to get "creative" in some way to solve this. No doubt there are loopholes to be exploited somewhere. In the end that might be the better road than trying to sue them, pay them off, or have the patent invalidated.

 

[rudigern]

Isn't this the same EFF that pushes licensing that is incompatible with Apples and fights against the App store and iOS.

I do hope Apple does stands up against this patent troll and this absurdly non-inovative patent but I'm sure Apple wouldn't care about what the EFF says.

 

[miografico]

Here's a crazy thought coming from a non-lawyer background:

What if Apple hires all developers for a $1 contract? Doesn't the apps 'belong' to Apple then, thus following the license Apple has payed for?

Then Apple would effectively own the rights to all developed IP on the App Store. I understand most of you are not developers here, but please understand contract law. None of us want Apple owning our applications, art, copyrighted material in general because their own licensing for their own IP does not shield us from litigation.

This is a lot bigger of a mess than I think some of you realize and I think some do not appreciate the facts here. If you take away free applications (no IAP completely free apps) from the App Store and you take away big publishing houses the majority of applications do not make an extreme amount of money. Many, many indies are doing this as a hobby or labor of love and not making much of any money at all. Many more are releasing lite versions of their apps and squeaking by with what little income they can by the use of in app upgrades.

If you take away the one or two man shops and you take away the small independent companies the App Store for all intents and purposes is dead as you all knew it.

Please factor in that if you're a one man shop or you run a small development company you have to have an innate fear now that even if you aren't doing anything wrong, even if you have no IAP in your app whatsoever, you risk being sued just by the very nature that you're on the App Store to begin with. When your operation is run on a shoe string budget you rethink the worth of even being on the App Store to begin with.

I have said it before if Apple doesn't approach this the right way this could set the precedent to effectively kill the App Store approach for the indie crowd and that's a massive slice out of the content of the App Store as a whole.

 

[rols]

But only if they can. Apple has licensed the technology from them, so Apple admits by their own action that the patent is valid and worth licensing.

Perhaps. So far only Lodsys has said that Apple licensed this patent, Apple hasn't confirmed or denied it. I also read a long article the other day which suggested this patent may have changed hands quite a few times and Apple (amongst others) is protected from enforcement of this patent because of one of a clause in one of those prior transfers. That's not quite the same as licensing it.

Yes there's more speculation than fact right now, will be nice to see how this plays out. I feel very sorry for the developers these guys have gone after and agree with much that has been said in these forums about needed patent reform and proper protection for people.

 

[EatSleepMac]

Down with patent trolls

I'm studying to become an Apple Dev and this story is really bothering me. It's companies like Lodsys that make me glad that there's companies like Apple. I hope Apple tears this company to shreds in court for trying to step on the little guys.

 

[jrtc27]

Come On Apple

Like many others I am a developer, and I was considering including in-app purchases in my application (the official version of Tank Trouble) but now I am having second thoughts. I just hope Apple comes out and helps us developers out like it should do - they created the APIs and encouraged us to use them!

 

[gnasher729]

The question is whether Apple specifically found and licensed the patent in question or if they simply licensed a bunch (like thousands) of patents in bulk, which is not uncommon, and this happened to be one of them. I believe one of the FOSS articles discusses this.

Anyway, licensing a patent does in no way mean that you believe it is valid or worth anything. It only means that you thought licensing the patent was cheaper than a lawsuit. Even cheaper than a lawsuit that you would win.

 

[ScottishDuck]

Patents kill competition and innovation.

 

[Bonte]

My opinion is that Lodsys has a right to its patent. But then I saw that Apple is complying with that patent already. Can one application of the patent require both Apple and the developers to pay patent right costs?

I think MPEG, JPG and GIF work the same way, Apple paid for the licensing in osX and iOS but graphic applications also pay a licence on there own. There is a free licence to publish these formats on the internet but a license non the less, apparently all 3 players need licensing.

This is bad, Apple would (as a member of MPEG LA) need to fight one of its own businesses to stop this.