Apple reiterates that it is licensed and that developers uses of Apple's products and services are covered under Apple's license.
As foreshadowed by Apple GC Bruce Sewell's letter to Lodsys, Apple has now filed a Motion to Intervene in the EDTX patent infringement case filed against seven developers.
In the proposed Answer and Counterclaim, Apple asserts, among other things:
- Apple is licensed to the patents in suit, and Lodsys purchased the patents subject to Apple's license.
- "Apple’s ability to use the technology embodied by the patents in suit in products and services offered to its customers is the essence of the value of Apple’s License to the patents in suit."
- "...under the patent law doctrines of exhaustion and first sale, Developers are entitled to use, free from claims of infringement of the patents in suit, those products and services to which Apple is licensed."
- "By commencing this suit against the Developers based on their use of products and services offered to them by Apple and by threatening other App developers, Lodsys has diminished the value to Apple of its License."
The affirmative defense section, as expected based on Sewell's earlier letter, is based upon doctrines of exhaustion and first sale:
44. As set out above, Apple is licensed to the patents in suit under the License. The License expressly permits Apple to offer and otherwise make available to its Developers products and services that embody the inventions contained in the patents in suit. Plaintiff’s infringement claims against the Developers are based substantially or entirely on the Developers’ use of products and services that Apple is authorized to provide under the License and which Lodsys claims embody the patents in suit.
45. Under the patent law doctrines of exhaustion and first sale, the Developers can use the products and services Apple provides to them free of claims of infringing the patents in suit. Therefore, Lodsys’s claims against the Developers are barred by at least the doctrines of patent exhaustion and first sale.
The answers to Lodsys's infringement allegations are boilerplate "Apple lacks knowledge or information..." denials. This makes sense. Apple does not need to specifically argue non-infringement since it is not a party accused of infringement and the legal analysis should not even reach infringement. Apple is licensed and provides most of the elements of the claims. The efficient path is to simply say Apple is licensed and whatever use of Apple's APIs and servers that is undertaken by developers is covered by that license. If the case somehow reached an infringement analysis, however, there would certainly be a good line of defense at that stage, as well.
Apple includes exhibits comprising motions for intervention, and orders granted on those motions, from prior cases involving Intel and Microsoft.
I will be unsurprised to see entries of appearance from certain Apple-recommended firms for multiple defendants in the near future.
- Lodsys: Anatomy of a BS Claim Chart
- 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