Here's a quick look at how NPEs scare developers, mislead the press and non-attorney bloggers, and provide fodder for anti-patent alarmists.
On June 6, 2011, Forsee Results, Inc. filed a declaratory judgment action against Lodsys. I have been a proponent of using DJs against Lodsys since my earliest posts. The Lodsys business model depends on targets rolling over quickly or waiting to be pulled into EDTX. Forsee is admirably doing neither.
I have thoughts on the relative strengths and difficulties of the non-infringement and invalidity portions of the DJ case. For now, though, my focus is on the Lodsys "claim chart" sent to Adidas and filed as an exhibit with the Forsee DJ complaint. I've seen others from Lodsys very much like this one, but their recipients justifiably asked me not to disclose that they had shared them. The one sent to Adidas, however, is now public record. Let's dig in...
The "claim chart" is prefaced by a slide reciting the full claim:
Colorful. A walkthrough follows, element by element, of Lodsys's mapping of the claim to Forsee's survey as triggered from shopaddidas.com. Starting with the preamble:
The second thing we notice is an apparent misunderstanding of patent law. Under at least US patent law, both the words you color red AND the remaining black words from the patent claim are relevant to whether someone is infringing. Here, Lodsys identifies a "system to manage information," to show the concept of the red words. What about those pesky black words Lodsys left out? They say "...about a value to users of units of a computer product that are in use by the users." The survey appears to be about the shopadidas.com web site, not about the value of "units of a computer product."
Well, that's just the preamble. Lets see what the mapping of an actual claim element looks like:
A-ha! There is clearly something on shopadidas.com that seems to demonstrate all of the blue words from the claim about a UI and two-way interaction! The yellow callout bubble with the font from Kings Quest V tells us so.
Again, however, there are those pesky words in black. They say that the two-way interaction is "between the user and the unit of the product." What is Lodsys calling "the unit of the product?" The HTML page? The computer displaying the web page? This is a system claim. Isn't the "unit of the product" supposed to be a piece of hardware, like a fax machine? (See the fax machine in US5,999,908 Figure 2, for instance.)
Perhaps the next element will lend some clarity:
If you have followed along this far, you will not be surprised that for this claim element, Lodsys has again pulled a few words into the yellow bubble to assert there is a mapping. The missing words, though, again relate to "two way interaction between each of the users and the corresponding unit of the product via the user interface."
The questions in this screen capture from the Forsee survey relate to the shopadidas.com site itself, to the products on the site, presumably sneakers, and to the prices of the products. Which of those is the "product" of the claim language about which information is being collected?
The user is not having two-way interaction with a sneaker, so sneakers are out as "units of the product." The user is interacting with the survey website, but that appears to have a forseeresults.com address, not an adidas.com address. The questions are about shopadidas.com, but the user is no longer there, and shopadidas.com is not a unit of a product.
Things get worse:
That yellow bubble we used to think we could trust is now ignoring the entire "server accessible via a public communication network" from the claim language.
Last we checked, the survey was coming from a Forsee server. The letter with this claim chart went to Adidas. Who is the supposed infringer and what is the infringement theory? Forsee seems to own and operate the server. The physical units of the computer product would be from Dell, HP, Apple, etc.
Much like in my analysis regarding the Apple iOS developers and their apps, Lodsys appears to be either intentionally ignoring important aspects of the claim that are not met by the targeted company's offering, or, instead, hiding some exotic joint infringement theory regarding a computer maker, the survey company, and the company using the survey software.
If Lodsys has a legitimate infringement theory against Adidas, or the iOS developers, it is hiding it well. No such theory is articulated in this or the other claim charts I have seen.
If you see Mark Small at Starbucks, do me a favor and please ask him: who is the infringer, what is the infringement theory, what are the "units of the computer product," and why are you using that font?
- Lodsys: Developers Do Not Infringe the '078 Patent.
- Lodsys: The $1,000 Offer.
- Lodsys: Complaint Filed in Eastern District of Texas
- Lodsys: Apple is Licensed. App Makers Protected by that License.
- Lodsys: Why Marco Arment is Wrong.
- Lodsys: "information about the user's perception of the commodity"
- Lodsys: "Units of Commodity"
- 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