Apple: Devs already licenced for Lodsys patents

Apple: Devs already licenced for Lodsys patents

Summary: According to a letter sent from Apple to Lodsys, the firm behind the threatening letters being sent to app developers, devs are already licensed to use Lodsys patents.

TOPICS: Legal, Apple

According to a letter sent from Apple to Lodsys, the firm behind the threatening letters being sent to app developers, devs are already licensed to use Lodsys patents.

Here, according to The Loop, is an excerpt of the letter sent out by Bruce Sewell, Apple Senior Vice President and General Counsel:

"Apple is undisputedly licensed to these patents and the 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."

It goes on to say:

"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. These licensed products and services enable Apple's App Makers to communicate with end users through the use of Apple's own licensed hardware, software, APIs, memory, servers, and interfaces, including Apple's App Store. Because Apple is licensed under Lodsys' patents to offer such technology to its App Makers, the App Makers are entitled to use this technology free from any infringement claims by Lodsys."

Apple is claiming that Lodsys is attempting to control post-sale use of the licensed products, a move which is not allowed:

"Through its threatened infringement claims against users of Apple's licensed technology, Lodsys is invoking patent law to control the post-sale use of these licensed products and methods. 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. As the Supreme Court has made clear, "[t]he authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article." Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617 (2008)."

What Apple wants in also laid out pretty clearly:

"Therefore, Apple requests that Lodsys immediately withdraw all notice letters sent to Apple App Makers and cease its false assertions that the App Makers' use of licensed Apple products and services in any way constitute infringement of any Lodsys patent."

Full text of the letter can be found on Macworld.

I guess it's now up to Lodsys and whether it wants to go head-to-head with Apple.

Overall this is good news, but it doesn't prevent some other patent troll targeting developers making use of a patent that Apple hasn't licensed. It's clear that the big guys with deep pockets (Apple, and Google for that matter) need to protect the little guys from the trolls and sharks out there, otherwise the whole app dev business could become risky.

[UPDATE: Florian Mueller offers up his take of the situation:

App developers have to understand that Lodsys can still sue them. Apple's letter does not prevent Lodsys from doing that, and it would be a way for Lodsys to pursue its agenda. It wouldn't make economic sense for Lodsys to sue a few little app developers based on the damage awards or settlements Lodsys might get out of such a lawsuit. However, for Lodsys it would still be worth it if this resulted in a lucrative settlement with Apple, or if it (alternatively) scared potentially thousands of app developers so much that they would pay. Lodsys would sue some app devs only to set an example, and for the ones to whom it happens, that would be an unpleasant situation.


Now let's look at the possible outcomes of such a lawsuit. If Lodsys loses and Apple covers your legal fees, you're fine. However, if the final ruling is that there is/was an infringement of a valid patent and that Apple's license does not benefit iOS app devs, the position taken by Apple in today's letter to Lodsys would be proven wrong ... if Lodsys won, Apple would have been wrong. In that case, it would be hard for app devs to claim that Apple has a legal responsibility to cover them -- including whatever the damage awards would be -- since the court(s) would have found that the app developers are liable for their own creations.

So, it might not be over yet.]

Topics: Legal, Apple

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  • RE: Apple: Devs already licenced for Lodsys patents

    Let's see how this plays out. It will be funny if they fold and run away with their tail inbetween their legs
  • What if there was a patent trial...

    ... and nobody showed? Do you think the courts would understand that we don't like playing their idiotic games anymore?

    What would it take to 'opt out' of a broken system? The USPTO is broken to the point where refusing to participate should not be seen as an admission of guilt or wrong-doing.

    It's an admission of intelligence!

    • RE: Apple: Devs already licenced for Lodsys patents

      @Spikey_Mike Same thing that happens in any court where one side fails to show up. Default judgement.
  • Beat them at their own game

    The devs can just 'sell' their source to Apple, minus any possible infringing code. They can make the exact same revenue deal as they had but the app is now Apples to do as they wish with, Apple adds the code that was infringing but since the app is theirs, Lodsys can now go away.
  • How much money does Lodsys have?

    Pressing a bunch of lawsuits against companies while at the same time defending against one from Apple sounds like an insanely expensive proposition.
  • RE: Apple: Devs already licenced for Lodsys patents

    I guess Lodsys did this to get Apple on record for being a fully paid licensee. This would benefit them in setting up a lawsuit aimed at Google, Android, et al.

    Watch this!
    pk de cville
    • No

      @pk de cville
      According to the Lodsys website, Google and Microsoft have also already licensed these patents, just the same as Apple has.

      What a win here could do is open the door for Lodsys to sue *app developers* for Android and WP7 et al...
  • RE: Apple: Devs already licenced for Lodsys patents

    Florian Mueller quoted again. I don't know of anything he's said that was uniquely insightful. There have been quite a few times when he projected a theory while missing key details.<br><br>So, yes, someone could sue and they might win and it might be expensive.<br><br>But, there are quite a few steps in a suit before a jury sits and decides. One of the first steps allows the defendant a chance to say the complainant has made pleading errors, such as standing, nature of acts, estoppel, etc. <br><br>Read Apple's letter. They are saying they are licensed and that the described acts are performed not by the developers but by Apple. <br><br>I'll rephrase: in app purchase is an api through which a developer enables a user to invoke actions on Apple's servers. The developer does not fulfill the request.<br><br>Among other legal strategies and tactics: Apple could sue and get declarative relief that Lodsys has no claim against developers.<br><br>Maybe today's story needed a bogeyman injection. I would doubt that. But, please, if you have to do that, let's have someone with a better track record at care and thought than Mr. Mueller. I mean, shoot, what, Rob Enderle didn't pick up the phone fast enough?
    • Well said

      <i>I'll rephrase: in app purchase is an api through which a developer enables a user to invoke actions on Apple's servers. The developer does not fulfill the request</i>

      That was very succinctly put. Thanks.
  • RE: Apple: Devs already licenced for Lodsys patents

    Just shows what a bunch of lowlifes Lodsys and its employees are. Patents like this are a joke, and should be barred from courts. Sure if they want to go after companies like Apple, go ahead. Scare tactics and attacking hard-working developers is a ridiculous way to make money. Lodsys should take their patents and f*** off.
  • Lodsys had no idea the money to be made, so they licensed the

    patent to Apple probally for some modestly decent amount.

    Now they see the money that they COULD have had a want to scare Apple and developers into forking over lots more.

    Go kick some Loadass, I mean Lodsys butt Apple!
    Will Pharaoh
  • RE: Apple: Devs already licenced for Lodsys patents

    I predict, if ever challenged to completion, Lodsys will find their patent worthless. We need some group to take them on.
    Elwood Diverse
  • Apple to Lodsys

    "Attempting to control post-sale use of a licensed product is our shtick, get yer own!"
  • Patented theoretical construct

    From Lodys' own blog:
    <i>Dan Abelow is an independent inventor who visualized/created metaphors, documented for the world to see (in exchange for exclusivity) and created value for doing so. This ideation, as expressed in the patent, enabled a building block for others to build on and create more value. Like an app developer writing software (a copyright), he created intellectual property (in this case, a patent).</i>

    Basically the dude had a bright idea and found a good way to describe it. Because he can describe his idea, the USPTO gave him a patent. Without seeing the patent (and thus with admittedly limited knowledge) I see this as being far too broad and I don't think the USPTO should ever have granted the damn thing. A patent is supposed to exist to protect an invention. In this case it was granted, not on an invention but, on a concept alone. The system is way broke and these bottom feeders are trying to get rich quick without ever producing anything.
  • Mueller can't read

    Florian Mueller's statement that Lodsys "can still sue" is technically correct, but meaningless. It's FUD, designed to assist Lodsys and other patent trolls instill fear into the hearts of developers.

    When the General Counsel of Apple says that they are "fully prepared to defend Apple's license rights," he is telling Lodsys "sue these guys if you want, but you won't be facing them. You'll be facing us. See you in court."

    In the SCO case, IBM demonstrated how a deep pocketed firm with first-class lawyers can bankrupt a patent troll with a never-ending series of motions, appeals, countersuits, and discovery motions... All of which cause the troll to run up billable hours. It's essentially a bleeding contest, with the troll eventually bled dry by its own lawyers.

    If they have any brains, Lodsys will go find someone else to mess with.
    Robert Hahn
  • I'll bet they hope that Apple...

    ...buys them, just to shut them up. Then the lodsys execs get huge bonuses and they look golden.
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