27
May
trollface

You've all probably heard bits and pieces of news about a company called Lodsys in the last couple of weeks, (they've been "patent trolling" iOS app developers) even if you don't really keep up on all things fruit-related. If you're not familiar with the story, let me give you a quick rundown.

Lodsys is what we affectionately refer to as a "patent troll" - a company that buys up promising and often vague or [overly] broad patents in a hope of using them to threaten to sue the pants off people that they know might be infringing on them. Let me say that again - they find a patent, find out how many people might be infringing it, and then decide to buy it. You make the call on the ethics of that, because we certainly have our opinions on the practice. It's a really lovely, lovely business.

Lodsys is a shell corporation for a larger company called Intellectual Ventures - a large patent clearinghouse that owns well over 30,000 patents - all for the purpose of licensing and threatening litigation (read: extorting money.) Though, I'm sure they'd love to tell you they use those patents for rescuing kittens and curing cancer.

fart-in-your-general-direct

Our feelings on patent trolls.

Anyway, Lodsys bought up a patent that purports to control the concept of making an in-app purchase, like those that allow for the "unlocking" of a full version of an app - something that has rapidly increased in popularity since its debut in newer versions of iOS. iOS app developers using in-app purchasing started receiving infringement notices from Lodsys almost two weeks ago. There was nothing to suggest that this couldn't come to Android. Today, it has.

Let me say that again: their patent claims to control the very idea of in-app purchases across all mobile platforms. How does it go about doing that? Excuse my "French," but that is an excellent god-damn question. ApplePatent.com I think has so far illustrated the utter absurdity of Lodsys's claims best. I tried to read the Lodsys patent - really, I did. From the figures, I guessed that the original inventor's intent was to develop a stand-alone product with a keypad (or maybe a phone itself) which hooked up to a phone line or fax machine, and had the ability to retrieve and send information from a remote vendor's application server. Let me try to give you an example:

Your office air conditioning breaks. You pick up your phone, which has a little display with buttons attached to it, and call a number for whichever vendor takes care of your AC service. The display gives you some choices - do you want a repair? What model of air conditioner? What day and time? Generating estimate - OK, that repair will be $100, would you like to pay now? "Yes." That's my interpretation of what was attempting to be patented, take a look at this picture from the patent itself and tell me if you agree:

90s

Hello? Yes - am I speaking with the 1990's?

Before I get even more abrasive - let me say, I don't know a whole lot about the technical side of patents. They're crazy complicated, and patent lawyers make very good money writing them - so I don't want to make it seem like all patents can be reduced to some simple, 3-paragraph concept. I'm having a little, shall we say, "fun" with my interpretation. But I think ApplePatents said it best in regard to how completely unrelated this 2003 patent is to smartphones or, to an even greater degree, smartphone applications. Read it yourself - the patent is total jibberish.

Still, Lodsys claims that Apple (and Apple does admit this), Google, and Microsoft have all secured licensing deals on the patent in question. This is probably the single worst thing all three of them could have done. Why? Because it has everyone else (again, pardon my French) scared shitless. If Apple, Google, and Microsoft caved to licensing, how do you think that makes a developer feel about resisting an infringement notice from Lodsys? I'm going to guess "not very confident."

I'm not in the camp suggesting we abolish the patent system, or even ban the patenting of software - but it's clear that the way things work now need to change. If a company like Intellectual Ventures (aka Lodsys) can bully developers into paying for licensing something that they almost certainly aren't infringing on, and doesn't even relate to their product, we have a problem.

Thanks to ArsTechnica for the primary source and analysis links.

David Ruddock
David's phone is an HTC One. He is an avid writer, and enjoys playing devil's advocate in editorials, imparting a legal perspective on tech news, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • http://www.AndroidPolice.com Artem Russakovskii

    Oh no, they didn't! Apple stood up for its devs, I'm sure Google will stand up for theirs. Right, Google?

    • Paul

      Sadly I don't think they will. I love Android but I've hated Google's treatment and support of developers. I'm remembering the one time they had a problem with application purchases on a Saturday morning and they didn't fix it or even respond until Monday afternoon.

  • jbonics

    Sounds like that company is a joke but there far from it. What a toxic company. Hey, WORTHLESS is staring to be a epidemic, don't catch it. Covert your mouth and wash your hands ya trolls.

  • beautox

    Bear in mind that Apple, Google & MS bought blanket patent licences for the 30,000 patents that IV owns - they didn't just licence this single patent.

    • David Ruddock

      Wasn't aware of that. This makes slightly more sense now - Google/Apple/MS probably didn't even know they were stepping into a well-laid trap set by IV.

  • Jon

    Apple asserted that the developers who license their SDK to create apps are covered by Apples license to Lodsys's patent. I don't expect the case with Android to be any different, and I'd anticipate seeing Apple, Google and Microsoft join forces if Lodsys chooses to pursue this any further.

  • Ahmad Nadeem

    BULLYING!!!!! Now where is that "anti-bully helpline"

  • TheEngineer

    Buy them, then fire them. That's the way.

  • rTiGd2

    But 'shareware' developers were doing this long before the patent was applied for. Hell, I used to 'give' feature disabled stuff away on the C64 but you could buy a feature enhanced version.

    Perhaps someone should patent the practice of patent trolling and send the bastards a nice letter demanding trolling fees.

  • rTiGd2

    2003? I missed the year - WOW there is so much 'prior art' to turn that patent into toilet paper. In fact, I think I'm going to see if someone can make custom printed toilet paper for this particular one :P

  • Chris

    As far as I've heard, the courts seem to be very liberal as far as patent claims are concerned, and certainly more justified cases have been tossed out of court. This applies for trademarks, as well, although it obviously depends on whichever judge ends up presiding on each trial.

    Of course the goal of companies like Lodsys is never to actually litigate, just to scare and extort money, something that's been cropping up on the P2P distribution as well, albeit with even murkier ethics.

    Which is itself the problem, since Google/Apple/Microsoft would have to secure a legal injunction against Lodsys' patent claims in order to prevent people from being duped even if they decide to stand up in court. Unless they can stop those acts at the source, simply saying they'll back their developers *if* the C&D letter turns into litigation will still enable Lodsys to prey on the uninformed or hyper-cautious.

  • Adrian

    as an economist I think 'what a great idea' as a human I think 'what pricks'

  • cosmic

    This can go two ways really. Either Lodys will be buried under the powerhouses that are Apple's and Google's(and likely Microsoft get in the mix) legal departments or the courts will mess up seeing it as the big guys picking on the little one and rule in favor of Lodys.

  • Xanas

    Patents are nonsense
    Terence Kealey discusses science and patents here.
    http://www.techdirt.com/articles/20100627/2304419976.shtml

    Stephan Kinsella, a patent attorney discusses patents here.
    http://blog.mises.org/16849/

  • Gerry

    I totally agree with this article.

    These patent whore (I mean aggregator) companies are nothing more than out-of-control predators.

    They are extortionists.

    They impede commerce and innovation in today's web world by trying to use seriously old patents that never envisioned the world-wide web and apply them to technology that is entirely outside the scope of the original patent.

    The general purpose computer was designed from the very outset to be programmable. It is one of the fundamental tenets of the platform. And no one ever desired that it be encumbered by patents like who could be the first to put text into a buffer. Or who could be the first to read a byte via a UART. And yet that is what is happening today.

    It is way past time to end and dissolve all software patents.

    .

  • AAH

    As many readers of this blog are likely aware, Lodsys has asserted that many application developers are infringing claims of its U.S. Patent Nos. 7,222,078 and/or 7,620,565 (I’ll refer to them as the Lodsys Patent Claims).

    While these patents seemingly expire August 6, 2012 (as a result of the priority claims and the terminal disclaimers that were filed in each patent), Google nonetheless continues its quest to invalidate the Lodsys Patent Claims. It is worth noting, that once a patent expires or is invalidated, it cannot then be infringed by anyone.

    In summary, Google initiated Reexamination proceedings with respect to U.S. Patent No. 7,620,565 (Reexamination Control No. 95/000,638) and U.S. Patent No. 7,222,078 (Reexamination Control No. 95/000,639) seeking to invalidate the Lodsys Patent Claims. The patent office adopted a majority of Google’s proposed rejections. In response, Lodsys submitted Declarations seeking to overcome the patent office rejections (and particularly U.S. Pat. 5,965,505).

    The Declarations submitted by Lodsys identified a number of reports authored by Daniel Abelow and Dr. Barbara Flagg. Interestingly, these reports were dated Spring 1991 --- which is more than one year prior to the earliest filing dates of the Lodsys patents.

    Google, seizing upon this, now proposes a number of additional rejections and enforcement issues based on these reports. For example, Google now proposes that the Lodsys Patent Claims are invalid under 35 USC 102(b), because:

    1. one is not entitled to a patent if the invention was described in a printed publication more than one year prior to the date of the application for patent, and the reports predate Lodsys’s relevant patent application by more than a year;
    2. one is not entitled to a patent if the invention was in public use, more than one year prior to the date of the application for patent, and the Declaration/reports indicate such a system was pilot tested and open to a number of students; and
    3. one shall be entitled to a patent unless the invention was on sale in this country, more than one year prior to the date of the application for patent, and the Declaration/reports indicate Harvard accepted a proposal (arguably prior to Spring 1991) that was successfully completed.

    If Google is correct on any of these points, the Lodsys Patent Claims appear to be unpatentable or invalid.

    Google also notes that Lodsys never submitted the reports to the patent office despite its obligation to disclose information that may be material to patentability. A violation of this duty with respect to any claim could render all claims unpatentable or invalid.

    In sum, the Lodsys Patent Claims seem to expire this summer and Lodsys’s efforts to keep the Lodsys Patent Claims from being invalidated have seemingly opened up a lodestone of new arguments that may be used to mitigate their impact. Stay tuned.

    • Francisco M. Marzoa Alonso

      "While these patents seemingly expire August 6, 2012 (as a result of the priority claims and the terminal disclaimers that were filed in each patent), Google nonetheless continues its quest to invalidate the Lodsys Patent Claims. It is worth noting, that once a patent expires or is invalidated, it cannot then be infringed by anyone."

      Wrong.

      https://www.eff.org/issues/faqs-lodsys-targets

      "Patent owners can sue for damages that occurred during the life of the patent for up to six years after that patent has expired."

      If the patent were invalidated instead of just expired, then it couldn't be used against anyone.

      • Chahk Noir

        Re-read that sentence you quoted. They can sue up to six years after the patent has expired. However, infringement still must have occurred before the patent expired.