Monday, May 23, 2011

Lodsys: Apple is Licensed. App Makers Protected by that License.

The text of the letter from Apple's Bruce Sewell to Lodsys CEO Mark Small has just been posted at Macworld:

... Apple is undisputedly licensed to these patent and the Apple App Makers are protected by that license. There is no basis for Lodsys’ infringement allegations against Apple’s App Makers. Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple’s license rights. ...

As I asserted in multiple posts, Apple's devices and infrastructure would need to be included in the infringement analysis for all of the claim limitations to be met, and developers on their own do not directly infringe. Sewell argues the same:

...  Under your reading of the claim as set out in your letters, the allegedly infringing acts require the use of Apple APIs to provide two-way communication, the transmission of an Apple ID and other services to permit access for the user to the App store, and the use of Apple’s hardware, iOS, and servers.

Claim 1 also claims a memory ... Once again, Apple provides, under the infringement theories set out in your letters, the physical memory in which user feedback is stored and, just as importantly, the APIs that allow transmission of that user feedback to and from the App Store, over an Apple server, using Apple hardware and software. ...

Finally, claim 1 claims a component that manages the results from different users and collects those results at the central location. As above, in the notice letters we have seen, Lodsys uses screenshots that expressly identify the App Store as the entity that purportedly collects and manages the results of these user interactions at a central location.

Thus, the technology that is targeted in your notice letters is technology that Apple is expressly licensed under the Lodsys patents to offer to Apple’s App Makers.  ...

Always read the patent claims.

I am very pleased to see Apple get involved. The drumbeat of advice to developers to give in or risk going bankrupt was getting quite loud. I hope no one listened to it. Financial pragmatism is one thing, but caving in without even a colorable theory of actual infringement is a step too far.


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