Wednesday, May 18, 2011

Lodsys: What Could the Community Do?

What could iOS developers, as a community, do about Lodsys?

Florian Mueller at FOSSPatents wrote a nice Q&A about the Lodsys situation, focusing on the decisions faced right now by individual developers.  What, however, could the affected community do as a whole?

If the Lodsys '078 was a patent that truly disclosed the invention of in-app purchasing, or upgrade buttons, or whatever Lodsys is claiming, and no robust invalidity or non-infringement defenses could be assembled, paying the licensing fees could be the best option.

A quick look at US7,222,078, though, gives a strong impression that the inventors had nothing like the App Store, or in-app purchases, or in-app upgrade buttons in mind at the time of original drafting.  The '078 is the modern day version of a submarine patent, the claims morphing over more than a decade through a CIP and multiple continuations, most of which were abandoned along the way.  Now, in a great-great-grandchild of the original application, Lodsys claims to have patent claims that cover the invention of these technologies.

If we make the following assumptions:

  • The Lodsys '078 patent specification did not originally envision in-app purchase,
  • The Lodsys '078 claims provide a poor or seriously questionable read on in-app purchase,
  • There are hundreds, if not thousands, of other patents for which some NPE could make at least as strong a claim against some aspect of the Apple ecosystem as Lodsys,

what courses of action could be considered for the iOS development community as a whole to address this as a long-term issue?

Reading Mark Small's blog posts, a clear strategy is articulated of going after small developers who will have neither the resources nor the financial incentive to defend themselves.  I suspect that for some of these developers, the cost of simply paying a patent attorney to read the letter and assess the case may exceed the licensing fee.  Lodsys is depending on the community not organizing and/or Apple not assisting in a defense and/or Apple paying up to cover everyone.

I suspect that if developers cave in to the demand letters, however, or if Apple pays for a blanket license, the floodgates will open.  Other NPEs will see a potential payday, look for anything in their portfolio with even a vague resemblance to an App Store-related mechanism, and send another pile of letters.  See, for instance, what has happened recently with cases involving false patent marking.  Money was made on an early case and imitators quickly emerged to scale up and monetize numerous other cases.  Caving into Lodsys, I fear, will just bring the community back to the same point in a few months with even more NPEs looking for a payday.

Step one in any community-wide response is to organize.  James Thomson is collecting a list of developers who have received letters at patents@dragthing.com.

Then what?  Patent attorneys are expensive.  The community will need to find funding for a response either from within or from outside, perhaps via the EFF, or from Apple, which clearly has a vested long-term interest in stemming cases like this.  Finding a firm that will handle the case efficiently, while dealing with the additional complexity of the diverse set of parties, may be a challenge.

Cases for invalidity and non-infringement would need to be made.  The community could lessen the costs of these activities by doing their own research.  If Lodsys has stretched the meaning of the '078 claims to cover these apps, they also have expanded the scope of prior art that can be used to invalidate the patent.

If a strong case for invalidity can be made, an ex parte reexamination request to the USPTO or a declaratory judgement action could be initiated.  The ex parte reexamination option could be cost-effective, but Lodsys could drive up costs to the developers with litigation while it was underway.

Right now, it appears that the community is waiting for Apple.  Since Apple's interest are at least partially aligned with the developers, perhaps they will come to the rescue.  If not, it will be interesting to see whether the community collectively rolls over or fights back.

 

Previous Coverage:

3 comments:

US Patent Attorney said...

For use by the app development community, I have posted some useful information and a blog where discussions concerning prior art to the Lodsys Patents can be discussed:

http://iptarget.blogspot.com/

- USPA

janetfenton12 said...

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Mark Nowotarski said...

There's another community that needs to be concerned about Lodsys, and that's patent attorneys. Perhaps they should develop a collective response.