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Apple Defends App Makers Against Lodsys
A mere few days after the EFF called upon Apple to Indemnify developers against alleged infringement of Lodsys patents on in-app purchases, Apple has sent Lodsys a letter defending developers. Apple argues that it has a license to the Lodsys patents that extends to individual developers making the Lodsys claims invalid. Hopefully the baring of legal teeth will put this matter to rest.
So, Apple developers are protected. It also looks like Google and Microsoft have licensed the patents for Android and Windows Phone 7. Technically the in-app purchases also work the same way - via Apple/Google/Microsoft services.
The big question here is, what about Android mods like CyanogenMod and non-official stores? Android is the only mobile platform of those that offer it. If you aren't using the official channels for your application and have in-app purchases, will you be liable for patent infringement? I have a ladyboy friend who is really interested in mobile development, but this might again be a hit against Android's openness and make her rethink about the situation. Sure, you are protected if you use the official Google channels to do it, but the point of Android is to be open and let both users and developers do it their own way if they want to. I am sure that if you implement the in-app purchases in your independent way, and distribute your application yourself, you also need to get the patent. But what about the third party stores?
Kudos to Apple for standing up to a group of people who are responsible for a large part of the success that the iPhone has achieved. I'll admit i didn't think apple had it in them. can you imagine the iphone without apps, it would be terrible.
Lodsys is only the tip of the patent lawsuit iceberg unfortunately. What happens when some patent holder who doesn't license directly to Apple (or Google in the case of Android) decides to send threatening letters to the application developers? The US Patent System is fundamentally broken. Today's letter from Apple to Lodsys may help iOS developers to dodge this bullet, but this is only the opening volley.
-- coding for the proletariat since 1977
Full text of Apple's letter to Lodsys:
BY EMAIL AND FIRST-CLASS MAIL
May 23, 2011
Mark Small
Chief Executive Officer
Lodsys, LLC
[Address information removed]
Dear Mr. Small:
I write to you on behalf of Apple Inc. ("Apple") regarding your recent notice letters to application developers ("App Makers") alleging infringement of certain patents through the App Makers' use of Apple products and services for the marketing, sale, and delivery of applications (or "Apps"). Apple is undisputedly licensed to these patents 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.
Because I believe that your letters are based on a fundamental misapprehension regarding Apple's license and the way Apple's products work, I expect that the additional information set out below will be sufficient for you to withdraw your outstanding threats to the App Makers and cease and desist from any further threats to Apple's customers and partners.
First, Apple is licensed to all four of the patents in the Lodsys portfolio. As Lodsys itself advertises on its website, "Apple is licensed for its nameplate products and services." See http://www.lodsys.com/blog.html (emphasis in original). Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them.
Second, while we are not privy to all of Lodsys's infringement contentions because you have chosen to send letters to Apple's App Makers rather than to Apple itself, our understanding based on the letters we have reviewed is that Lodsys's infringement allegations against Apple's App Makers rest on Apple products and services covered by the license. These Apple products and services are offered by Apple to the App Makers to enable them to interact with the users of Apple productsâ"such as the iPad, iPhone, iPod touch and the Apple iOS operating systemâ"through the use or Apple's App Store, Apple Software Development Kits, and Apple Application Program Interfaces ("APIs") and Apple servers and other hardware.
The illustrative infringement theory articulated by Lodsys in the letters we have reviewed under Claim 1 of U.S. Patent No. 7,222,078 is based on App Makers' use of such licensed Apple products and services. Claim 1 claims a user interface that allows two-way local interaction with the user and elicits user feedback. 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 that stores the results of the user interaction and a communication element to carry those results to a central location. 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. Indeed, in the notice letters to App Makers that we have been privy to, Lodsys itself relies on screenshots of the App Store to purportedly meet this claim element.
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 targete
It may be 7 digits, but at least it's a semiprime
This is OK, but I'd much prefer to see the patent ruled invalid. I've always heard it's a "failing defense" to challenge a patent based on prior art, but this just screams of prior art, to say nothing of obviousness. I hope it'll be tossed out in a court case.
Dear diary: Today I stuffed some dolls full of dead rats I put in the blender.
It's great that Apple is defending the devs. It's nice to see a patent troll get beat down, but it's not much of a victory when they already got their money for this completely obvious and bogus patent.
Here's a list of their patents. They keep calling these "inventions" and the guy listed on the patents (Dan Abelow) is called a "prolific inventor" but after reading the patents he just seems like an opportunist who managed to get a couple blatantly obvious ideas through the patent system.
...that lodsys completely destroys all app devs, and the whole app market as a whole, ultimately raising awareness to the ridiculous framework of patents and litigation in our country... ultimately leading to serious reform.
and just buy a license.
Deal with it, this company was the first to PATENT this technology...
So you need to buy a license to use this tech.
If you don't like it, stop offering in-app upgrades. Why is that so difficult for people to understand? I know why.. because they want their "Freeware app" to lure in buyers..
DEAL WITH IT, make your app either free or completely pay for. Stop offering in-app upgrades unless you want to license the technology (and it's not like they are being unreasonable in what they are asking for a license, it's a very very small amount)
It's not Apple's fault developers didn't do their research on patents before they made a product. This is something *every company* has to do during R&D. As a matter of fact, most companies hire entire DIFFERENT companies to see if they are in violation of any patents! Just because you're a 'little guy' should mean you're immune to this procedure? I think not. When you are developing, you NEED to make sure you are not violating any patents. If it does violate patents, find a different way.
It really is that simple, I don't understand why everyone is up in arms... well I do.. people want something for nothing. If ANY ONE of these developers were the one to come up/patent this idea, they would be equally as pissed if every single app on the bigger app-market in the world used their technology without a license; I know I would be furious.
Excuse me, I don't mean to impose, but I am the ocean
Vendor supported software distribution channels have an enormous potential; an obvious statement given the run-away success of iTunes App Store and the others.
The AppStore(tm) conveys a respectability and quality to the developers the makes the customer confident that they aren't buying some sort of malware/crapware/etc.. . The generally low-cost and quick access encourages trying out software.
From the developers standpoint, it has the benefits of the Co-Op or similar collectives [ ok -30%, but it is not like you custom make them ]. You get placement, some indemnity, trust of your customer base, and some lovely velvet handcuffs matched to your gilded cage.
The real question is whether the various Outlets end up being like the music/film/book distributors, or like a Fair Trade Coffee Shop. I know which one has painted itself the latter.
How the hell is this patentable?
If you aren't using the official channels for your application and have in-app purchases, will you be liable for patent infringement? ...
I am sure that if you implement the in-app purchases in your independent way, and distribute your application yourself, you also need to get the patent. But what about the third party stores?
Don't be so sure!
The biggest kick in the nuts for Lodsys in that letter is when Apple says "Lodsys's threatened claims are barred by the doctrines of patent exhaustion and first sale". As I read it: because Apple have already paid for a patent license for each iOS device that they sell, no-one can demand another license fee. It's already licensed and paid for. Lodsys is effectively asking to be paid multiple times for the same device, which they can't do.
So, assuming that Google and others are similarly licensed to Apple, Lodsys would not be entitled to any fees from apps on unofficial mods and third-party stores. That's because the Android mod or third-party apps could only run on devices which are already licensed — the mod or app might not license the patent directly, but each user of the mod or app effectively has, because Google or Apple or whoever paid their license fee to IV for the device. It could be that almost every owner of a smartphone in the world is already licensed for this patent, which would make Lodsys feel sick in the stomach (if trolls have stomachs?)
(Remember IANAL and IV got paid for the Apple license, not Lodsys, but who got paid makes no difference)
"Apple's App Store" sounds generic in tfa, page 2, para 1.
Apples's App Store
Amazon's App Store
Sure sounds generic, like:
Apples's Shoe Store
Amazon's Shoe Store
Or:
Apples's Store
Amazon's Store
for that matter.
Is this a case of Apple legal dept's left hand not knowing what Apple legal dept's right hand is doing? Isn't Apple trying to argue that the word 'App' doesn't just mean 'application'? Yet here, in a legal document from Apple, they have confirmed what everyone already knew: 'App' means 'application'. Oops.
Witness, coffee shops within a library (or bookstore). See that is the same idea. Let's patent everything that is obvious now.
I'm surprised someone hasn't found a way to say Apple is evil for defending its app developers. Pretty much every other story on Slashdot about Apple brings the haters out.
This makes all those laments about the walled garden seem hollow. Apple set up a system that specifically allows developers not to have to worry about e-commerce, or patents and copyrights. Sure it takes a cut, but as we can now see this may be worth it. It sure is to small developers.
All the poor chumps on Cydia now have Lodsys to contend with.
The proper place to put your wrath is on the asshole patent trolls that force the world to work like this.
The down side to this action by apple is that it re-inforces lodsys. that is it slams the door on future people who want to open marketplaces for apps or market apps outside of the concecrated marketplaces. By re-onforcing lodsys it is going to make the fee they charge higher for all the late arrivals who exists outside the apple-amazon-google tri-lateral markets.
Some drink at the fountain of knowledge. Others just gargle.
I like how the wording of the article implies a causal relationship between the EFF's call and Apple's actions.
Note to EFF: you had nothing to do with this.
Like anyone can even know that