Could Lodsys turn its sights on Microsoft Windows 8 developers?

Lodsys has not gone after Windows developers with claims that they're violating the company's in-app purchasing patents. But could this happen with Windows 8?
Written by Mary Jo Foley, Senior Contributing Editor

Lodsys, the Texas-based company that has been suing smaller iOS, Android and BlackBerry developers over alleged infringement of its in-app purchasing through an app store patent, hasn't targeted in a substantial way Microsoft developers -- yet.

But that doesn't mean some Windows developers aren't thinking ahead about that possibility, especially for Windows 8, which will have its own app store.

I received the following e-mail from a Windows developer this week:

"I am a Windows developer who is planning to develop a Metro app. However, I have reservations about this because Microsoft has not said anything about what it plans to do to protect Metro developers from Lodsys. As you may know, Lodsys is the patent troll currently suing many small iOS and Android developers (and sending infringement notices to many more developers) because mobile apps allow in-app purchasing through an app store, which Lodsys claims is covered by their patent.

"Any Windows developers interested in developing Metro apps will be exposing themselves to a possible lawsuit from Lodsys because Microsoft is planning to use the same type of in-app purchasing system for Metro apps that iOS developers must use."

The developer asked what Microsoft was intending to do to head off these kinds of Lodsys threats. I put the question to Microsoft and received the following statement from a spokesperson:

“We are licensed to the Lodsys patents and also have a robust and industry leading indemnification policy for customers of Microsoft products and services. To your reader’s question about developers specifically, this is not a typical indemnification scenario since it involves someone else’s product/application.  However, again, Microsoft is licensed to the Lodsys patents so it is not something developers should be concerned about.”

Florian Mueller, IP analyst and founder of the FOSS Patents blog, said he has been contacted in recent months by a couple of Windows developers who've received letters from Lodsys over Windows PC (not Windows Phone).

Mueller said he believed it is time for the tech giants to go after Lodsys.

Mueller said "I believe all platform companies -- Apple, Google, Microsoft and RIM -- should take joint action against Lodsys and provide meaningful, reliable guarantees to their app developers that they're fully covered if Lodsys sues them over the four patents it currently lists on its website. Those large platform makers have a responsibility and I don't think any one of them has done nearly enough to respond to this issue, which is disappointing. Blanket coverage for small developers is the only real solution in connection with Lodsys, but no platform company provides it.

While Microsoft does have a "very customer-friendly indemnification policy," Lodsys can still sue developers, arguing it is their applications, not the operating systems, that infringe its patents, Mueller said. He added that while Apple also claims to be licensed the same way Microsoft does -- and has even sent notice to Lodsys claiming that its in-app purchase license applies to its developers -- Lodsys is still going after iOS developers. In fact, earlier this week, one iOS developer settled with Lodsys after he was sued earlier this year, claiming he didn't have money to pursue a lawsuit.

Any Windows developers out there heard from Lodsys about patent-infringement claims -- or nervous about the possibility of this happening?

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