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.
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Lodsys Patent Invalidation Efforts: Apple Barred? $15,000 Bounty for Crowdsourced Research
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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.
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'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.
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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.
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.
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)
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.
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.
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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
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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.
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.
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.
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!"
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!"
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Was it anon? Or lulz thatsaid they were taking requests?
Let's request lodsys
Leave the developers alone.
Was it anon? Or lulz thatsaid they were taking requests?
Let's request lodsys
Leave the developers alone.
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.
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, 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.
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Now, knowing Apple, they've conveniently left something out, so we'll have to look deeper to see what's missing in their argument.
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.)
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.