Tuesday, May 31, 2011

Lodsys: Developers Do Not Infringe the '078 Patent.

Lost in the anti-patent/anti-NPE discussion of Lodsys is a fundamental fact: Developers do not infringe the Abelow '078 patent.

Screen shot 2011 05 31 at 11 03 07 PM

In his odd blog at Lodsys.com, CEO Mark Small expresses his views about Lodsys being an unfairly persecuted non-practicing entity just trying to assert its rights. Among his posts today is this one lamenting the coverage of Lodsys's actions:

The stories have focused on narrow complaints

Patents and the licensing of them:  a complicated system and how it’s wrong or broken (although many aspects do work well and a few aspects have challenges… like any complicated system).

The small developer being unfairly picked on (without mentioning the many developers that do understand and play by the rules).

Rolling developers into belonging to the enabling platform (Apple’s developers or Android developers) and how they are under attack from a troll (rather than it being a rights holder attempts to get paid for its property and questioning the full scope and veracity of the platform provider’s promises, or that App Developers have choices of what functionality to put in their applications and which platforms to sell on)

My primary complaint about this case, however, is simply this:

iOS developers do not directly infringe the '078 patent and their only potential joint infringer, Apple, is undisputedly licensed.

Asserted claim 1 and dependent claim 24 of the '078 require multiple units of a commodity that each comprise a UI, a memory, and a communication element. These are physical elements of a system claim. The iOS developers do not provide a physical system, let alone one with multiple units of a commodity each with a UI, a memory, or communication element.  Apple, if anyone, provides those elements. Apple has not been named as a defendant.  Apple is licensed. (We haven't even reached other issues with the claims.)

Lodsys asserts in the complaint that each developer-defendant "has infringed and continues to infringe, directly, indirectly, literally, under the doctrine of equivalents, contributorily, and/or through the inducement of others, one or more of the claims of the '078 patent."  In the claim charts I have seen, however, Lodsys implies only direct infringement by the iOS application itself, with strategic omission of claim language referencing hardware or the role of Apple servers.  Does Lodsys actually have a joint infringement theory under which developers infringe in conjunction with Apple as an already-licensed non-co-defendant? If so, they certainly have not articulated that theory, and the theory would certainly be novel.

@jharrier pointed me to a nice article from Wilson Sonsini on divided/joint infringement defenses in EDTX, which summarizes the law as of early 2010 as follows:

The Paymentech court ruled that direct infringement of a patent claim only occurs when a single actor either commits the entire act of direct infringement, or directs or controls the actions of all parties needed to commit the entire act of infringement. If multiple unrelated actors are required to perform all the actions of a method claim, then there can be no direct infringement. Furthermore, if there is no direct infringement, there can be no contributory infringement or inducement either. In other words, if no single actor is a direct infringer, then there can be no infringement of any kind.

If any "mastermind" existed in the context of the '078, directing or controlling the actions of all parties, it would be Apple, not the developer. Apple, again, is licensed, by Lodsys's own admission.

With only "notice pleading" required for the initial complaint, Lodsys is not yet required to explain its theory of how developers could possibly be infringing. It will be fascinating to see if they ever produce such a theory, or instead, whether the economics of patent litigation let them collect their checks before they are required to do so. Sadly, I suspect the latter is the business model.

 

Note: I plan to take a look at the Abelow '565 in a future post.

 

Previous Coverage:

Lodsys: The $1,000 Offer.

Lodsys's inadequate and caveated "offer" hints at a severe lack of confidence in the case.

NewImage

(via Wikipedia)

In addition to blog posts about the filing of the complaint, Lodsys also posted a curious "offer" with regard to its demand letters today:

While it is true that Apple and Lodsys have an obvious dispute about the scope of Apple’s license to the Lodsys Patents, we are willing to put our money where our mouth is and pay you something if we are wrong.  Therefore, Lodsys offers to pay $1,000 to each entity to whom we have sent an infringement notice for infringement on the iOS platform, or that we send a notice to in the future, if it turns out that the scope of Apple’s existing license rights apply to fully license you with respect to our claim relating to your App on Apple iOS.

First, $1,000?  Seriously? Estimates of the number of targeted developers have been in the low teens.  Is $13,000 all Mr. Small is willing to risk? Furthermore that's only around two hours of a senior litigator's rate and would in no way cover a developer's expense for even basic evaluation of this case.

Second, note the caveat in the offer. Mr. Small is not saying you get $1,000 if the Abelow patents are found invalid or, more importantly and likely, if you are found not to infringe since you do not meet all the claim elements. The narrow wording requires that "it turns out that the scope of Apple’s existing license rights apply to fully license you with respect to our claim relating to your App on Apple iOS."

However, even Bruce Sewell did not claim developers are fully licensed within the scope of Apple's license.  He said:

Because Lodsys’s threats are based on the purchase or use of Apple products and services licensed under the Agreement, and because those Apple products and services, under the reading articulated in your letters, entirely or substantially embody each of Lodsys’s patents, Lodsys’s threatened claims are barred by the doctrines of patent exhaustion and first sale.

Sewell recognizes that it is Apple, not the developer, that provides most of the claim elements in any reasonable mapping of the claim, and asserts that Apple is licensed to practice the inventions.  He says developers are protected by Apple's license, not that developers are fully licensed.

This is an empty offer from Lodsys. Make it $100,000 per developer and make the offer payable on a finding of invalidity or non-infringement, as well.  That would be putting your money where your mouth is.

 

Previous Coverage:

Lodsys: Complaint Filed in Eastern District of Texas

On May 31, 2011, Lodsys filed a complaint for patent infringement against Combay, Inc., Iconfactory, Inc., Illusion Labs AB, Michael G. Karr d/b/a Shovelmate, Quickoffice, Inc., Richard Shinderman, and Wulven Game Studios.

The complaint can be found here.

More to follow.

 

Previous Coverage:

 

2011-05-31 Newly Issued Apple Patents

 

PAT. NO. Title
1 D638,854 Full-Text Media device
2 D638,835 Full-Text Electronic device with graphical user interface
3 7,954,110 Full-Text Observing properties associated with an object in an object-oriented programming platform
4 7,954,067 Full-Text Parameter setting superimposed upon an image
5 7,954,065 Full-Text Two-dimensional timeline display of media items
6 7,954,064 Full-Text Multiple dashboards
7 7,954,061 Full-Text Creation and manipulation of internet location objects in a graphical user interface environment
8 7,954,057 Full-Text Object movie exporter
9 7,954,047 Full-Text Cutting and copying discontiguous selections of cells
10 7,953,808 Full-Text Automatic notification system and process
11 7,952,890 Full-Text Interlocking EMI shield
12 7,952,012 Full-Text Adjusting a variable tempo of an audio file independent of a global tempo using a digital audio workstation
13 7,950,967 Full-Text Low profile plugs

 

 

Of Note

Executive Inventors: The sole inventor listed on 7,954,065 is Randy Ubilos, Chief Architect, Video Applications.  Scott Forstall, Sr. VP, iPhone Software, is lead inventor on 7.954,064.

Selected Drawings

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Friday, May 27, 2011

Nokia v. Apple @ ITC: Full Commission Review in 337-701

Nokia has been granted Full Commission review of a narrow portion of the ALJ's Final Initial Determination in the 337-701 investigation of Apple.  The investigation originally involved seven patents.  Matters related to only two will be reviewed. According to the Commission Notice:

 

On March 25, 2011, the ALJ issued his final ID, finding no violation of section 337 by Respondents with respect to any of the asserted claims of the asserted patents. ... Regarding the ’181 patent, the ALJ found that the accused products do not infringe its asserted claims. The ALJ also found that none of the cited references anticipated or rendered obvious the asserted claims. With respect to the ’256 patent, the ALJ found that the accused products failed to literally infringe the asserted claims and failed to infringe under the doctrine of equivalents. The ALJ also found that the asserted claims were not invalid for obviousness and were not rendered unenforceable due to inequitable conduct. ...The ALJ concluded that an industry exists within the United States that practices the ’789 patent but that a domestic industry does not exist with respect to the ’091 patent, the ’181 patent and the ’256 patent as required by 19 U.S.C. § 1337(a)(2) and (3).

...

Having examined the record of this investigation, including the ALJ’s final ID, the petitions for review, and the responses thereto, the Commission has determined to review the final ID in part. Specifically, the Commission has determined to review the findings related to the ’181 patent and the ’256 patent. The Commission has determined not to review any issues related to the ’957 patent, the ’091 patent, and the ’789 patent, and terminates those patents from the investigation.

(emphasis added)

 

Thus, Nokia would need the Full Commission to overturn the ALJ's findings on infringement and domestic industry to truly prevail.  The Commission's questions to the parties relate primarily to construction of "acoustic cavity" in the '181 and "integrated mobile terminal processor" in the '256.

Nokia and Apple have been busy at the ITC.  On April 26, 2011, Nokia's request for a USITC investigation based in part upon PalmPilot sync patents was granted.  Nokia is also the respondent in the 337-704 and 337-710 investigations initiated by Apple.

Susan Decker at Bloomberg provides background here.

 

Previous coverage:

Thursday, May 26, 2011

Ogma v. Apple: Settled

As anticipated after Apple no longer appeared as a respondent in the corresponding USITC matter, Apple has settled both cases filed against it by Ogma, LLC in the Eastern District of Texas.  One of the cases, 2:11-cv-168, involved the somewhat disturbing patent claims covering image displays based upon nothing more than their aspect ratios.

No information on settlement terms appears to have been announced.

 

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Previous Coverage:

2011-05-26 Newly Published Apple Patent Applications

 

PUB. APP. NO. Title
1 20110125929 DYNAMIC INTERPRETATION OF USER INPUT IN A PORTABLE ELECTRONIC DEVICE
2 20110124260 DISPLAY THAT EMITS CIRCULARLY-POLARIZED LIGHT
3 20110123844 PRESSURE-RELIEF MECHANISM TO IMPROVE SAFETY IN LITHIUM-POLYMER BATTERY CELLS
4 20110123186 ELECTRO-MECHANICAL SHUTTER CONTROL
5 20110122954 Decoding Interdependent Frames of a Video Display
6 20110122560 INVISIBLE, LIGHT-TRANSMISSIVE DISPLAY SYSTEM
7 20110121928 ACOUSTIC NOISE REDUCTION IN POWER SUPPLY INDUCTORS
8 20110120850 SWITCH ASSEMBLY CONSTRUCTIONS
9 20110119973 INVISIBLE, LIGHT-TRANSMISSIVE DISPLAY SYSTEM

 

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Monday, May 23, 2011

Lodsys: Apple is Licensed. App Makers Protected by that License.

The text of the letter from Apple's Bruce Sewell to Lodsys CEO Mark Small has just been posted at Macworld:

... Apple is undisputedly licensed to these patent and the Apple App Makers are protected by that license. There is no basis for Lodsys’ infringement allegations against Apple’s App Makers. Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple’s license rights. ...

As I asserted in multiple posts, Apple's devices and infrastructure would need to be included in the infringement analysis for all of the claim limitations to be met, and developers on their own do not directly infringe. Sewell argues the same:

...  Under your reading of the claim as set out in your letters, the allegedly infringing acts require the use of Apple APIs to provide two-way communication, the transmission of an Apple ID and other services to permit access for the user to the App store, and the use of Apple’s hardware, iOS, and servers.

Claim 1 also claims a memory ... Once again, Apple provides, under the infringement theories set out in your letters, the physical memory in which user feedback is stored and, just as importantly, the APIs that allow transmission of that user feedback to and from the App Store, over an Apple server, using Apple hardware and software. ...

Finally, claim 1 claims a component that manages the results from different users and collects those results at the central location. As above, in the notice letters we have seen, Lodsys uses screenshots that expressly identify the App Store as the entity that purportedly collects and manages the results of these user interactions at a central location.

Thus, the technology that is targeted in your notice letters is technology that Apple is expressly licensed under the Lodsys patents to offer to Apple’s App Makers.  ...

Always read the patent claims.

I am very pleased to see Apple get involved. The drumbeat of advice to developers to give in or risk going bankrupt was getting quite loud. I hope no one listened to it. Financial pragmatism is one thing, but caving in without even a colorable theory of actual infringement is a step too far.

 

Previous Coverage:

 

 

Lodsys: Why Marco Arment is Wrong.

Marco Arment's advice to simply roll over and pay Lodsys could be damaging not only to the developers taking his advice, but to the independent development community as a whole.

Marco Arment is the founder of Instapaper and was a co-founder of Tumblr.  He currently has a podcast on Dan Benjamin's 5by5 network called Build and Analyze. I am a paid user of Instapaper apps and a fairly regular listener of Build and Analyze and Benjamin's other shows.  I think Arment and Benjamin are smart guys. When Arment or Benjamin's other co-hosts talk about what they know, the shows can be educational and inspiring. Occasionally, though, the co-hosts speculate about things they don't know, and the shows can be disappointing and infuriating.

NewImage

In episode 25 of Build and Analyze, Benjamin and Arment spent a good deal of time discussing the Lodsys situation. Within the first minute of discussion, Arment misstated the number of patents held by Lodsys, the term of a patent, and the title chain of the patents. Those were fairly benign errors. Far more dangerous, though, was Arment simply taking at face value Lodsys's broad characterization of the scope of the '078 patent, exaggerating it even further as support for his anti-patent arguments, and then implying a proper course of action for developers based on that misinformation:

Arment: "This company has a couple of what sound like very broad patents... and one of them in particular... I'm not a lawyer of course, so please take all of this with a grain of salt... It just sounds like it could apply to any kind of communication over a network." (~19:30)

No. The patent does not apply to, or sound like it could apply to, anything close to "any kind of communication over a network."

Patents end with patent claims. Those claims define the bounds of the legal monopoly granted by the patent. Arment either did not even look at the claims before broadcasting his views to thousands of developers, or did not understand them. I suspect the former.

As discussed at length in my previous posts, the Abelow '078 being asserted by Lodsys has significant limitations related to which party actually practices the invention, the scope of the system that is claimed, and the type of information that is collected on user perception. Each of those limitations are relevant to whether iOS developers infringe. The patent does not cover "any kind of communication over a network."

 

Arment later discusses how he would respond to a Lodsys letter:

Arment: "It's a horrible thing in principle, but if they ever hit me, I'd just pay it.  because the reality is... Yes, it sucks to lose that money, but it's not that much money and the alternatives are so much worse.  This is the kind of thing... you know, you can try to argue, oh you should make a big political stand...  The fact is you're going to lose, and you're going to lose a lot of money doing it." (~28:15)

Arment is correct that standing up will cost money. I take serious issue with his assertion to developers, however, that "you're going to lose," especially when it appears he has not even read the patent claims.

With the claim limitations described above, I have been unable to come up with a plausible explanation as to how the targeted developers could be, especially without Apple as a joint infringer, directly infringing the patent. Patent litigation is unpredictable, and yes, developers could lose nonetheless, but based on my read, this is far from a slam dunk for Lodsys.

I also question whether, if everyone rolls over as Arment suggests, that it won't be "that much money." Arment seems to be making implicit assumptions that a Lodsys success will not inspire more NPEs, that other NPEs will request similarly low percentages of revenue, and that the total percentage of revenue sought across NPEs will still be low. I question all of these assumptions.

There are plenty of issued patents out there. I assure you that NPEs are looking right now to buy more that might be stretched to arguably read on the Apple ecosystem. With such patents in hand, an NPE looking to replicate Lodsys's strategy could sensibly target the same developers who rolled over for Lodsys (or successful developers who publicly stated in podcasts that they would roll over). Those "small percentages" will add up.

 

A Lodsys-like business model seems to depend heavily on developers holding beliefs like Arment's. Making money by collecting small amounts from large numbers of developers requires a low transaction cost for each collection. Developers who roll over based on these beliefs keep transaction costs low.

If the transaction cost rises, however, perhaps through legitimate defenses or declaratory judgment actions, the NPE's costs skyrocket.  I think it is no coincidence that Lodsys is starting with a small group of developers. Achieving critical mass to jointly fund a declaratory judgment action for non-infringement or invalidity would be hard under any circumstances, but especially if there are never enough threatened developers at any one time to reach that critical mass.  If no one stands up and says "we're not infringing" in this round, though, what do you think Lodsys will do once it collects its first round of checks? Those who settle in early rounds will likely be funding the actions against other developers.


Developers should not take legal advice from the Internet, and especially not from a software development podcast. Whether it is expensive or not, see an attorney. Show the attorney the claim chart you received from Lodsys. Spend some time, perhaps, on the claim language that Lodsys left out of the claim chart and why they left it out. Assess whether you could even be capable of infringing the patent given your role in the Apple ecosystem. Then, discuss with your attorney whether to roll over based on cost concerns. At least be informed when you do so.


Update 5/23 1:50P: Marco responds here.  He mischaracterizes what I said (re-read the final paragraph above; he doesn't seem to have read the end of the patent or the end of my post), but clarifies his own opinion a bit.

 

(Quick note: Dr. Drang took issue with the same Arment podcast and beat me to the punch.  I think our posts are complementary, though. Go take a look.)

 

Previous Coverage:

Friday, May 20, 2011

Lodsys: "information about the user's perception of the commodity"

The claims, figures, and specification imply that "information about the user's perception of the commodity" is fairly detailed customer feedback information.  Is Lodsys mapping this term to in-app purchases, upgrade buttons, and links to the App Store?

Screen shot 2011 05 20 at 9 35 08 AM

Update: @gedeon implies Twitterrific may not be the accused app.  As noted, though, I've used it as a generic example of an in-app upgrade for claim analysis purposes.  Hopefully, once the very sad chilling effect of these letters has faded a bit, we'll get some more facts to work with.

Another key phrase in the claims of the Abelow '078 patent being asserted by Lodsys is "information about the user's perception of the commodity."  Early reports have indicated that Lodsys is mapping this term to in-app purchases, in-app upgrades, and even simple links to the App Store.

Again, 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.

What did "information about the user's perception of the commodity" originally mean when the patent application was drafted?  The figures and specification provide some clear clues.

Screen shot 2011 05 20 at 9 47 39 AM

Figure 2 of the Abelow '078

In the "System Description" section of the '078 patent, the "perception" information is described:

 

The Customer Design System (CDS) in FIG. 1 gives Vendors hands-on Customer-based information 30 that is generated WHILE THEIR PRODUCTS ARE BEING USED. At their moments of greatest need, Customers tell Vendors their perceptions, expectations and the shortcomings of their product(s) and their associated services 24. They are able to cormnunicate 24, "This is what I'm doing to use your product. This is why I need it and why I use it this way. Here are the specific things I'd like you improve, and why they are important to me. I'd also like to tell you how to improve your relationship with me. Here are the important things I'd like you to do now." (column 18, lines 29-40, emphasis added)

 

That sounds like quite a bit more information than would be conveyed by clicking an upgrade button, but let's continue our analysis, nonetheless.

We will use Twitterrific from the accused Iconfactory as our example again.  Twitterrific allows users to make an in-app purchase to remove the ads and use multiple accounts:

Screen shot 2011 05 20 at 9 31 55 AM

What "information about the user's perception of the commodity" is provided by an in-app upgrade, assuming for now that Twitterrific, or the iPad running Twitterrific, is the "commodity."  To me, the purchase is not indicative of the user's perception, as it may be performed for positive or negative reasons:

  • The user hates Twitterrific with the ads and pays to improve the experience.
  • The user is dissatisfied with Twitterrific's single-account restriction and wants to manage multiple accounts.
  • The user loves Twitterrific even with the ads, but wants to support Iconfactory with a purchase.
  • The user just likes Craig Hockenberry and wants to support him.

(If you think I am stretching things with that third bullet, you might not have seen the ads in Twitterrific from Coudal's The Deck.  They are actually really good.)

So, I would argue that an in-app upgrade of Twitterrific is quite ambiguous as to the user's perception of Twitterrific and would not meet the claim limitation.  Adding this to the difficulties with the "units of commodity," language discussed earlier, and the overall problem of mapping a system claim to an iOS app, I still do not see the makings of a strong claim chart.

 

(Disclaimers: 1) Nothing in this or any article should be construed as legal advice.  2) I have had no contact from anyone at IconFactory.  I use them only as an example.  I'd love to see the letter they got, though, because this isn't making sense.)

 

Previous Coverage:

Thursday, May 19, 2011

Lodsys: "Units of Commodity"

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.

 

Previous Coverage:

 

Lodsys: Where is the Infringement?

Lodsys reportedly asserts that Iconfactory infringes one of their patents.  If it's the '078, I think they are wrong.

Before we dig more deeply into the Abelow '078 asserted by Lodsys, let's quickly review what it means to infringe a patent.  Infringement of a patent is defined in 35 U.S.C 271:

35 U.S.C. 271 Infringement of patent.

(a) Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent therefor, infringes the patent.

(b) Whoever actively induces infringement of a patent shall be liable as an infringer.

(c) Whoever offers to sell or sells within the United States or imports into the United States a component of a patented machine, manufacture, combination, or composition, or a material or apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use, shall be liable as a contributory infringer.

...

I have seen no mention that Lodsys is accusing anyone of anything other than direct 271(a) infringement.  Inducement of Apple to infringe or selling a component for use by Apple in their infringement seem to be off the table based on Lodsys's assertion that Apple is licensed (assuming the "nameplate products and services" language used by Small does not hide some relevant limitation on the license).

Under 271(a), then, to infringe, the party must make, use, offer to sell, or sell the patented invention.  Lodsys is sending letters to application developers.  These particular letters are not going to Apple, which conducts the sale, or users, who use the apps, so we'll focus on the "makes" aspect of 271(a).  (An argument could be made that the developers "sell" to Apple.  I believe the analysis will end up being the same as "makes" and will focus on "makes" for now.)

What is the patented invention that the application developers are presumably being accused of making?  Lodsys has four patents, but the '078 is the one that has received mention in the initial reports.  For lack of better knowledge, we will assume claim 1 of the '078 is being asserted:

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.

For the "making" to be infringement, the infringing system would need to meet each limitation of the claim.

Let's use Twitterrific as an example.  Under one possible claim construction, we would call Twitterrific a "unit of a commodity," and multiple instances of Twitterrific installed across different users' devices the "units of a commodity."  Then, somehow, the "system" would necessarily be something that encompasses those multiple instances of Twitterrific.

This construction is problematic for multiple reasons.  First, Iconfactory does not make, to my knowledge, a "system" with multiple instances of Twitterrific.  More importantly, IconFactory does not make a system with "a memory."  Iconfactory writes software applications that are uploaded to Apple's servers, downloaded by users, and run on iPhones, iPod Touches, or iPads with memory.

So, we instead need a construction where each "unit of commodity" has "a memory."  Clearly, then, the iPhones and iPads must be the units of commodity.  The "system" then necessarily includes multiple iPhones, iPod Touches, and iPads.  IconFactory does not make or sell iPhones, iPod Touches, or iPads.

Another dead end.

Maybe I have the wrong claim?  Perhaps. Independent claim 54, though, shows some of this patent's true colors and has "facsimile equipment" substituted for "commodity."  (Make note of that for later when we focus on construing "commodity.")  IconFactory does not make fax machines, just icons of them.  Claims 60 and 69?  Those seem to need the iTunes Store side of things included for infringement, and Iconfactory does not make the iTunes Store.

For the moment, I am failing to see any plausible claim construction that leads to a reasonable assertion of infringement of claim 1 of the '078 by Iconfactory.  They would need to make or sell multiple units of a commodity, each with a memory... hey, wait a minute... are there memory chips in those Ollie dolls?

More to come.

 

(Disclaimers: 1) Nothing in this or any article should be construed as legal advice.  2) I have had no contact from anyone at Iconfactory.  I use them only as an example.  I'd love to see the letter they got, though, because this isn't making sense.)


Previous Coverage:

Apple Seeks Patent on Location-Based Network Detection

On May 19, 2011, the USPTO published patent application 12/620,421, Location-Based Network Detection.  The concept will sound familiar to anyone who has been following the recent controversy regarding "location tracking" by the iPhone.

Screen shot 2011 05 19 at 7 10 14 AM

 

This is not the first application to be published on the topic.  For instance, on March 3, 2011, application 12/553,534, Location Histories for Location Aware Devices, was published.  That application focuses on the process of storing network transmitted information in a database, and translating the data into position coordinates.

 

 

Abstract

A mobile device establishes communication with a number of wireless cellular networks at particular locations and records the locations and network information associated with the wireless cellular networks. The network information can be used to narrow a search for an available wireless cellular network from a plurality of potentially available wireless cellular networks when the mobile device is operating at a stored location. In one aspect, a Radio Frequency (RF) receiver on a mobile device can receive a broadcast radio signal from a transmitter and use the signal to determine an approximate location of the device based on a known location of the transmitter. A match between the approximate device location and wireless cellular network transmitters in communication range of the mobile device can be used to narrow a search for wireless cellular networks.

 

Representative Claim

1. A method performed by one or more processors of a mobile device, the method comprising:

  • receiving a plurality of broadcast radio signals;
  • processing the broadcast radio signals to determine an approximate location of the mobile device based on known locations of transmitters that are transmitting the broadcast radio signals;
  • determining a plurality of wireless cellular networks that can potentially communicate with the mobile device at the approximate location;
  • establishing a search order for the plurality of wireless cellular networks; and
  • searching for at least one of the plurality of wireless cellular networks based on the search order.