Friday, May 20, 2011

Lodsys: "information about the user's perception of the commodity"

The claims, figures, and specification imply that "information about the user's perception of the commodity" is fairly detailed customer feedback information.  Is Lodsys mapping this term to in-app purchases, upgrade buttons, and links to the App Store?

Screen shot 2011 05 20 at 9 35 08 AM

Update: @gedeon implies Twitterrific may not be the accused app.  As noted, though, I've used it as a generic example of an in-app upgrade for claim analysis purposes.  Hopefully, once the very sad chilling effect of these letters has faded a bit, we'll get some more facts to work with.

Another key phrase in the claims of the Abelow '078 patent being asserted by Lodsys is "information about the user's perception of the commodity."  Early reports have indicated that Lodsys is mapping this term to in-app purchases, in-app upgrades, and even simple links to the App Store.

Again, the full claim 1:

1. A system comprising:

  • units of a commodity that can be used by respective users in different locations,
  • a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction between one of the users and the corresponding unit of the commodity, and further configured to elicit, from a user, information about the user's perception of the commodity,
  • a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity,
  • a communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and
  • a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location.

What did "information about the user's perception of the commodity" originally mean when the patent application was drafted?  The figures and specification provide some clear clues.

Screen shot 2011 05 20 at 9 47 39 AM

Figure 2 of the Abelow '078

In the "System Description" section of the '078 patent, the "perception" information is described:


The Customer Design System (CDS) in FIG. 1 gives Vendors hands-on Customer-based information 30 that is generated WHILE THEIR PRODUCTS ARE BEING USED. At their moments of greatest need, Customers tell Vendors their perceptions, expectations and the shortcomings of their product(s) and their associated services 24. They are able to cormnunicate 24, "This is what I'm doing to use your product. This is why I need it and why I use it this way. Here are the specific things I'd like you improve, and why they are important to me. I'd also like to tell you how to improve your relationship with me. Here are the important things I'd like you to do now." (column 18, lines 29-40, emphasis added)


That sounds like quite a bit more information than would be conveyed by clicking an upgrade button, but let's continue our analysis, nonetheless.

We will use Twitterrific from the accused Iconfactory as our example again.  Twitterrific allows users to make an in-app purchase to remove the ads and use multiple accounts:

Screen shot 2011 05 20 at 9 31 55 AM

What "information about the user's perception of the commodity" is provided by an in-app upgrade, assuming for now that Twitterrific, or the iPad running Twitterrific, is the "commodity."  To me, the purchase is not indicative of the user's perception, as it may be performed for positive or negative reasons:

  • The user hates Twitterrific with the ads and pays to improve the experience.
  • The user is dissatisfied with Twitterrific's single-account restriction and wants to manage multiple accounts.
  • The user loves Twitterrific even with the ads, but wants to support Iconfactory with a purchase.
  • The user just likes Craig Hockenberry and wants to support him.

(If you think I am stretching things with that third bullet, you might not have seen the ads in Twitterrific from Coudal's The Deck.  They are actually really good.)

So, I would argue that an in-app upgrade of Twitterrific is quite ambiguous as to the user's perception of Twitterrific and would not meet the claim limitation.  Adding this to the difficulties with the "units of commodity," language discussed earlier, and the overall problem of mapping a system claim to an iOS app, I still do not see the makings of a strong claim chart.


(Disclaimers: 1) Nothing in this or any article should be construed as legal advice.  2) I have had no contact from anyone at IconFactory.  I use them only as an example.  I'd love to see the letter they got, though, because this isn't making sense.)


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