The rapid communication about the Lodsys demand letters sent to iOS developers last Friday has raised an interesting question in my mind. Instead of chilling development and innovation on iOS, could this instead evolve into the first "social" defense against an NPE? For instance, could the developers join together with interested patent attorneys to:
- Search for prior art, develop multiple best obviousness cases, and file for an ex parte re-exam?
- Analyze the prosecution history of the '078 looking for weak links in the CIP/continuation chain and applicant arguments during prosecution that limit the claims to exclude in-app purchases?
- File one or more declaratory judgment actions for non-infringement and invalidity in non-EDTX jurisdictions?
Would there be enough interested patent attorneys to guide the community through these actions?
Something a bit like this has happened before. When Acacia went after the Internet porn industry over Internet video streaming, that industry organized, hired Fish & Richardson, and fought back. (The parallels between the subject matter of the cases might not be too strong, though if you type 5318008 into James Thomson's supposedly infringing PCalc and turn it upside down, things do get a bit racy.)
This will be an interesting test of the resolve of the anti-"software patent" crowd. Each of the potential actions I mentioned are a lot harder than complaining about patents in the comments of a blog post. Each of those potential actions, however, would be far more effective than blog comments at stemming frivolous NPE actions against developers.