Lodsys threw down the gauntlet on Tuesday, filing patent infringement lawsuits against seven independent mobile developers in the patent litigation-friendly Eastern District of Texas. The company is asserting two of its patents against those developers, and decided to launch its lawsuit early "in response to Apple's threat, in order to preserve its legal options," the company said on its blog.
Lodsys first popped into the news when it sent letters to at least a dozen iOS developers threatening a lawsuit if those developers didn't pay licensing fees for patents Lodsys believes are related to in-app purchasing. Those developers were using standard iOS APIs supplied and required by Apple for in-app purchasing. Because patent litigation is expensive, and developers were using Apple's prescribed in-app purchase method, developers believed Apple should come to their aid.
After a campaign to get Apple's attention via mass bug reports and a boycott of in-app purchasing, Apple responded to Lodsys' legal threats. Apple holds a license to all four of Lodsys' patents through a blanket licensing deal with those patents' previous owner, Intellectual Ventures. Apple's top legal counsel, SVP Bruce Sewell, wrote in a letter that iOS developers are covered by Apple's license to the patents, and that Lodsys should "cease its false assertions that the App Makers' use of licensed Apple products and services in any way constitute infringement of any Lodsys patent."
Android developers were likewise targeted for using Google's in-app purchasing system via the Android Market. We noted that Google (as well as Microsoft) has similar blanket patent licenses from Intellectual Ventures covering all four Lodsys patents. Google has not, as yet, responded to Lodsys' claims.
While iOS developers were optimistic after reading Apple's letter to Lodsys, they were also aware that Lodsys could still move forward with its threat to sue. Even if Lodsys' patents were proven to be inapplicable to in-app purchasing, or if Apple's claim that its license covers third party developers were true, the process of proving that in a court of law could be financially catastrophic for a small development company. The CEO of Villan banded together with Iconfactory and encouraged other developers to pool resources in case Lodsys made good on its threat.
Lodsys did just that, targeting Iconfactory, Quickoffice, Illusion Labs, Wulven Game Studios, and three lone developers. "Unfortunately for Developers, Apple's claim of infallibility has no discernable [sic] basis in law or fact," the company said via its FAQ-style blog on Tuesday. Lodsys claims to have been in confidential discussions with Apple concerning the issue, and called the response from Sewell "surprising."
"Lodsys has carefully considered this issue and consulted several legal experts to consider Apple’s claims," the company wrote. "We stand firm and restate our previous position that it is the 3rd party Developers that are responsible for the infringement of Lodsys’ patents and they are responsible for securing the rights for their applications."
Lodsys noted that relying on the information in Apple's letter could be detrimental. According to a copy of Apple's own iOS developer agreement, Apple's limit of liability to any developer is a maximum of $50, so Apple is not under any contractual obligation to assist developers or assure that their use of Apple APIs doesn't infringe third-party patents or other IP.
The developers involved may end up forced to settle with Lodsys unless Apple or Google decide to step in. Paying for a license will be far cheaper than very lengthy patent litigation. Unfortunately, those settlements would likely give Lodsys confidence to target other small developers that can't afford to defend themselves. The companies targeted by Lodsys have so far declined to comment on the suit or their strategies in fighting it.
Lodsys may be more confident in its legal standing than some may believe, however. Ars discovered that Lodsys filed a similar patent infringement lawsuit earlier this year. That lawsuit targets a host of large tech companies, including Brother, Canon, HP, Hulu, Lenovo, Lexmark, Motorola, Novell, Samsung, and Trend Micro. While early analysis of Lodsys' patent infringement claims suggest they may be on shaky ground, it doesn't appear that this patent troll is interested in simply heading back under its bridge.
Listing image by Troll 2 image, Epic Productions
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