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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.
...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.
IIUC, Lodsys didn't actually get any money out of this, and the original "inventor" sold all his patents quite a long time ago -- to Intellectual Ventures (eventually: its possible they changed hands a few times before IV got them)
They're the one who Apple signed a license deal with, and if I'm not mistaken, it was a pretty broad license to quite a lot of patents. These were just a couple included. It wouldn't surprise me if the bundle included a lot of junk to shore up the numbers in the deal -- after all, IV later sold these off to Lodsys, so they can't really have thought they were that valuable.
Lodsys wants to grow up and be an IV-scale patent troll, but alas, they wasted their money.
Umm, hello?
Even if this patent is valid and legitimate (of which I have serious doubts, but IANAL) -- the whole point of this little TFA is that Apple did buy a license; Apple then implemented the technology in their OS, in their devices. That license covers the implementation of in-app purhcases used by app developers: they are covered.
Lodsys (who was NOT the company nor the "inventor" who first patented the "technology") is trying to extort more money and require licenses from people who do not owe them anything. These people are merely using what Apple is providing. Lodsys claims Apple's license doesn't cover all the app developers who are using Apple-provided and Apple-mandated technology: and Apple's legal department begs to differ.
I know which one I'd bet on.
They don't have to sub-license it to anyone, The app developers are merely using the system licensed, owned and provided by apple.
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)