The claims, figures, and specification imply that "units of commodity" are hardware devices. Is Lodsys mapping this term to iOS apps or to iOS devices? Either way, it's not clear how developers could be infringers.
As mentioned in my previous post, a key phrase in the claims of the Abelow '078 patent being asserted by Lodsys is "units of commodity." Coming up with a construction of this term that allows mapping of the claim to iOS apps is problematic.
First, 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.
We can gather clues as to what "units of a commodity" means from the dependent claims of claim 1 that use the term:
6. The system of claim 1 in which the units of the commodity comprise telephone extension equipment and the central location comprises a private branch exchange or other central telephone network facility.
8. The system of claim 1 in which the units of the commodity comprise facsimile equipment and the user interface triggers the two-way interaction to occur on-line between the unit of the facsimile equipment and a vendor of the facsimile equipment.
11. The system of claim 1 in which the units of the commodity comprise consumer television equipment.
27. The system of claim 1 wherein the units of commodity are configured to store voice or sound information.
28. The system of claim 1 wherein the units of commodity are configured to digitize voice or sound information.
So, from the dependent claims, we know that our construction of "units of commodity" must be at least broad enough to cover telephone extension equipment, fax machines, and TVs. We also know from claim 1 itself that each "unit" must have a memory and a communication element.
Again, we have the dilemma of how to map "units of commodity" to something an iOS app developer makes. The dependent claims certainly push us in the direction of the "unit of commodity" being a physical electronic device. If that is the case, the iPhone or iPad would be the "unit of commodity," but application developers do not make those.
If "unit of commodity" somehow comprises not only the electronic devices described in the dependent claims, but also software applications, we are still left with the issue of the "memory" and "communication element" that each "unit" must have. There is a clear implication that the "memory" and "communication element" are physical things, especially in light of the dependent claims. iOS apps are not physical devices and do not have physical components.
I am still at a loss for a reasonable theory as to how these developers infringe this claim. Is Lodsys's theory somehow based on the developers using their own apps on their own iPhones and iPads? Inducement of the end users to use their iPhones and iPads with the apps running? There are other claim elements that present problems even to those bizarre theories, and no evidence that either is what Lodsys is asserting.
If anyone has a coherent infringement theory, I would be excited to hear it. Until then, continue to count me as extremely skeptical.
- Lodsys: Where is the Infringement?
- Lodsys: What Could the Community Do?
- Lodsys: Mark Small, Champion of Invention?
- Lodsys v. Apple Devs: The First Social Patent Defense?
- Lodsys v. Apple Devs: FUD for the App Store Era?
- Lodsys Targets Small iOS Developers
- H-W v. Apple: Read the Claims, Not the Complaint
- H-W v. Apple et al. NDTX