Lodsys patent claim threatens independent developers, what next?

From the language used in this patent enforcement action,it sounds like Lodsys just wants to settle and nab some licensing deals. Honestly, it probably would have been smarter for them to go after Apple and/or other deep pockets, if money's all they want, instead of pursuing one-man development shops; after all, you can't bleed a stone.
http://www.industryweek.com/articles/patent_enforcement_21538.aspx?SectionID=2

Perhaps we could make an adjustment on my idea requiring a product to enforce a patent. Perhaps the inventor would not need a product to enforce the patent. Additionally patents could not be acquired unless a product was involved, or a company owning a patent was being acquired. I want to disallow companies whose sole existence is to enforce and license patents they did not initially file and who never plan to have a product. I still maintain that the point of a patent is not to enrich the inventor, but to help the inventor recoup R&D costs.

One of the things that bothers me about these types of suits/threats is the anonymity of the real parties in interest. That, combined with the submarine nature of the patent I mentioned on Twitter the day this broke, echoed by @hodas above, and the targeting of small fish, makes this situation a test of my NPE sympathies. The small size of the revenue streams Lodsys seems to be targeting makes me question whether there may be motives other than settlements with the developers. I've described those thoughts here: http://www.applepatent.com/2011/05/lodsys-v-apple-devs-fud-for-app-store.html

It would be nice to know who really owns Ferrara Ethereal and Lodsys. That would shed some light on whether this is justifiable monetization of a patent the inventor himself could not afford to assert, or a potential abuse of the system that might help justify reform.

PS: I have only been an attorney for five years, and am still paying off lots of student loans and other debts from my three-year break from "real life" for law school, so I most certainly do NOT own a mansion and a yacht!

gmerin, actually my name is on the post, I believe.

My point in announcing my background was to say that on the one hand I do know patent law, and, on the other hand, I also have a background in CS so I can appreciate where developers are coming from.

My point is that I have spent a lot of time thinking about these specific issues. And I don't think I made the sort of "you're wrong, just accept it" post where touting my credentials is intended to avoid discussion. I agree that the patent system is severely busted. I was just pointing out that most of the fixes that first jump to mind have problems once you think about what they would actually entail.

One of the big problems in software patents is what are known as "submarine patents" that rely on a number of "continuation" filings. Often they enable an inventor to claim stuff for which there is plenty of prior art at the time the patent is applied for, but to get the advantage of a much earlier effective filing date (called the priority date), so that you would have to show that the invention was known at that earlier date. This patent is actually a submarine patent in that it was filed in 2003 but has to be treated as though it was filed in 1992 (see the "Related US Application Data" on the first page of the patent.) That is the source of a lot of bad software patents. IN this case, though I actually don't see a lot of problems arising from the submarining. It appears that what is being claimed in the patent (read the claims beginning in column 91) is something he envisioned in 1992 when he wrote the specification (the whole preceding part) assuming that he did not augment the specification along the way. (That used to be allowed, but is not anymore.)

Putting serious limits on "continuation practice" to limit the ability to create submarine patents would be a big improvement in the system, and the Patent Office has tried to do that. Unfortunately, the most serious attempt to do it has been blocked by the courts for the moment at least. It will probably require an act of congress to fix it, rather than an act of the Patent Office. (see http://en.wikipedia.org/wiki/Continuing_patent_application#Attempted_changes_by_USPTO_to_continuation_practice for a reasonably good discussion.)

First I will say that I AM in fact a patent attorney. I also have a Ph. D. in computer science and was a professor of computer science before becoming an lawyer.

I have NOT looked at all the details of this situation as yet, though I did take a QUICK glance at the patent. But I am not going to get into the details right now.

The issue I want to talk about is the idea talked about by david in post # 5 above, that you not be allowed to sue over a patent unless you have a product. This is a common suggestion, and at first glance it sounds like a reasonable solution to the patent troll problem (and I do agree that there IS a patent troll problem).

But there are a few problems with the idea. First of all, it does not necessarily create much of a barrier. For example, based on my quick reading of this particular patent, I could whack up an implementation of a product based on the description in a weekend, then throw i up on the app store, and BAM I would have qualified to sue under the proposed new restriction. Indeed the whole point in this particular instance is that anyone who could put together an app is (supposedly) selling a product that is covered by the patent. So all a troll would have to do is hire a CS major for a weekend of work and they would have solved their problem. For many software patents the barrier would be insignificant.

On the flip side, suppose that the situation involves a patent where the invention would require huge resources to develop a product. Yes this would be a barrier to trolls. But it would also destroy protection for truly innovative small inventors whom the patent system was originally devised to protect (there were nothing but small inventors in the 18th century) and whom I think everyone would agree should be protected. Imagine you are a car fanatic and spend every weekend fiddling with the engine in your car. One night you have brilliant mind-bending revolutionary idea for a new engine design. But, of course, manufacturing engines is a multi-million dollar business and by day you are a system support tech at a local business, making $50K a year. You file a provisional patent application and then you manage to get an appointment at GM and explain your idea, but they say they are not interested. The following year GM rolls out a car using your new engine design and makes $2Billion in additional profit. You initiate a law suit but it gets tossed out because you never made or sold a product embodying the patent.

This is a harder system to fix than you think! There are some much more limited procedural adjustments that are happening in the courts however that may make some differences. For example, in the past the courts in the Eastern District have been loathe to transfer cases to other courts. The Federal Circuit Court of Appeals, however, has been admonishing them lately to be more reasonable about granting transfers where the case has no apparent connection to the District.

(On a small note, Leonard Davis who ruled on the Mirror Worlds v APple case is in the Tyler Division of the Eastern District, not the Marshall Division, though both divisions are popular with patent plaintiffs.)

I have a practical defence plan. Be based outside of the USA where most of this crap originates. :)

The UK is catching up fast though. This whole thing is wrong on so many levels, I don't know where to start. Corporate bullying should be right up on the political agenda as it affects the economy in a big way.

Curious to know if anyone has any practical strategies for defending against these types of attacks against our (indie devs') businesses? That is, strategies for lowing your risk of being vulnerable to lawsuits, etc.

Such as, would it help to have your app covered by your own patent(s)? Even if they include someone else's previously patented "inventions?" As I understand it, you can "invent" something and patent it that builds on a previous invention. If that's true, though, then I can't see how any patent infringement is ever actionable as no two products are ever the same and there is always a hole in every patent.

So, question 1 is, does it make sense for small, indie devs to spend the $ to get their own patents? Or is it a better strategy to hope and pray that you don't get one of these letters from a troll?

This where capitalism starts to eat itself!!!!

It sounds like this guy is trying to claim a patent on the very idea of in app purchases. Something Apple is pushing hard. So I would say that the whole section whatever doesn't apply.

Honestly I think the reason they didn't go after Apple is cause they are hoping to scare a few developers into settling. If they challenge Apple, they are more likely to lose nd have the patent invalidated as too broad