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EFF takes on Lodsys patent controversy

by Dana Franklin May 21st 2011 at 9:00AM

Lodsys, LLCJulie Samuels, a Staff Attorney at the Electronic Frontier Foundation (EFF), said Apple should join forces with its developers to dispute patent infringement complaints Lodsys, LLC sent to several independent iOS app-makers last week.

On May 13, a number of iOS developers reported being told their apps, by using the in-app purchase mechanism built into Apple's development kit, infringed on intellectual property owned by Lodsys, a patent holding company based in Texas. According to Lodsys, their patent specifically covers technology that allows end users to upgrade "light" editions of software to fully functional apps. Lodsys claims that Apple, Google, and Microsoft already pay to license the technology for themselves (possibly through investments in the patent portfolio of Intellectual Ventures), but licensing agreements with these tech giants do not extend to third party developers.

Unfortunately, Apple requires developers to use the in-app purchase mechanism it provides, and the Cupertino company's developer agreement does nothing to protect app creators from patent infringement claims against technology it builds into iOS. Samuels argues this is a "misallocation of burden" onto individual developers who often don't have the resources needed to combat infringement suits.

Even if a developer does explore the patent universe for possible pitfalls, it's unlikely he or she would look into any of Apple's technologies since most reasonable people (including lawyers) would expect the company to avoid exposing its app-makers to additional liability. App sellers already surrender 30% of the revenue from each sale to Apple; adding the threat of patent lawsuits or additional licensing fees may deter new and existing developers from choosing to create software for iOS.

Last we heard, Apple was "actively investigating" the Lodsys patent infringement claims. It's still not clear what actions the company will take next, but Samuels says, "by putting the burden on those least able to shoulder it, both Apple and Lodsys are harming not just developers but also the consumers who will see fewer apps and less innovation."

She hopes Apple will "do what's right and stand up for their developers and help teach the patent trolls a lesson."



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Julie Samuels, a Staff Attorney at the Electronic Frontier Foundation (EFF), said Apple should join forces with its developers to dispute...
 

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new.writer9

Apple pretty much had no choice except to come out swinging on behalf of its developers. The company's been under so much pressure and scrutiny about this that, had it not defended the developers, its image would have suffered terribly, perhaps irreparably. That said, however, I'm glad Apple finally did step up to the plate. Hopefully, Apple's actions will make Lodsys and other trolls think twice about trying to take out one-man app shops and other "easy targets" via patent litigation -- especially those that have big guns on their side.

May 30 2011 at 8:01 PM Report abuse rate up rate down Reply
Smith

I have inside information that tells me that Apple is in negotiations with Lodsys and if it should come to it, they will shoulder the burden of the licensing fees themselves on behalf of the developers. 
Lodysys doesn't want to take this to court any more than Apple does.
Because of this, it is in the best interests of Apple and everyone involved that they don't make any statements on the matter until the situation is resolved.

The inside information is from a trusted source... common sense.

May 21 2011 at 12:24 PM Report abuse rate up rate down Reply
tarun

Sometimes I really wonder about the EFF - making pronouncements that are that painfully obvious doesn't do much to inspire confidence.

Of course Apple will end up taking on the litigation, since they required the use of the in-app upgrades and would like to continue to do so. Plus the harm to the app store would be massive without that kind of support. Finally, if one of the developers gives in, then it sets a nasty precedent that will make it much harder for Apple to win in a later case, when for example, they come after the iTunes app which also allows purchases.

May 21 2011 at 10:36 AM Report abuse rate up rate down Reply
2 replies to tarun's comment
artifex

"when for example, they come after the iTunes app which also allows purchases."

Well, except Apple is apparently already paying for the privilege of doing this. So I don't think they'll go after iTunes. Still, it would suck for Apple if they had to go back on their desire to force in-app payments on the developers. (Oh, and that company that was going to offer books but folded up shop instead might be able to reopen after all)

May 21 2011 at 11:50 AM Report abuse rate up rate down Reply
tarun

I did forget they had a first party license...

May 21 2011 at 11:51 AM Report abuse rate up rate down Reply
Vincent Vatcher

I've already taken measures to ensure I don't get served by Lodsys. Three days ago I removed one of my free apps with an in-app purchase from sale in the United States. I'll bring it back once this whole ordeal gets sorted. If Apple doesn't help developers out like myself, then the App Store would become a lot less desirable to develop for. I pay $99 a year and 30% of my revenue to Apple in order to sell my apps, if they want to hang us out to dry after making it mandatory to use their API's than it would leave a very bad taste in my mouth.

While I don't believe Lodsys' patent covers in-app purchasing, I certainly don't have the funds to fight it in court if they sued me.

May 21 2011 at 10:14 AM Report abuse rate up rate down Reply
4 replies to Vincent Vatcher's comment
jonathan ober

who are the lawyers going to sue when the rest of us get taken today?

May 21 2011 at 9:56 AM Report abuse rate up rate down Reply
Cy Starkman

I'd have to say it seems pretty unlikely that Apple will let iOS developers deal with this by themselves. It would be a disaster.

Interestingly from what I've read it relates specifically to free apps and in app purchases/upgrades. I recall apple originally saying free apps will always be free but then they dropped the position. That has opened up the smurfs fiasco and now this.

Has a hint of karma in it perhaps, shrug

May 21 2011 at 9:53 AM Report abuse rate up rate down Reply
2 replies to Cy Starkman's comment
Charli

This has nothing to do with free pricing and in apps purchases as a way around that rule.

This is about those Lite/with ads v paid/without ads upgrades. Or rather an internal mechanism to make that switch. (It's odd that LodSys is focusing on just that because really all add ons via In App are the same thing tech wise, but whatever. )

Which the article is a little wrong about. Apple encourages, but doesn't require you go in app for such a change. there can be, and often are, two separate versions for the whole free/paid thing. Personally I think they should be requiring it from a user POV but whatever, I don't make their rules.

Speaking of rules, Apple is NOT required to defend developers in any legal matter, no matter how many developers are hit. When you sign up and submit apps you actually confirm to Apple that you have all needed legal rights for your app and if sued you are on your own.

UNLESS, LodSys is full of caca about Apple only licensing for themselves. That is likely what Apple's lawyers are investigating. Exactly what does the agreement say. If it in fact does say that Apple and all partners have the right then Apple will step up and correct that error in information from LodSys.

OR LodSys is full of caca about Apple licensing anything at all and the lawyers have a whole stack of prior development on the tech that Apple and the 3rd parties use, showing that it is not the same as Lodsys's tech and was created from prior Apple invention (all appropriate patents in place). etc

All that said, cases like this remind me why I feel that Patents should be treated like Trademarks in the sense that if you let offenses slides, regardless of cost or gain, then you are deemed not really caring that folks are using your stuff and you get nada in damages if you are even allowed to make a claim and stop anyone from continued abuse. Cut the money out of the loop and folks won't be popping up when there's finally huge money on the line to protect their invention (which is what patents are actually all about)

May 21 2011 at 1:35 PM Report abuse rate up rate down Reply
TheBasicMind

@Charlie,

Your analysis is almost certainly wrong and/or misleading and I hope anyone concerned about these patents does their own research. There are several Lodsys patents. The main one under contention is not constrained to advertising and can be viewed on the USPTO website here:

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=7620565.PN.&OS=PN/7620565&RS=PN/7620565

I've written a couple of blog posts in which I have given an assessment of the threat for anyone who may be concerned about Lodsys. If you think they may affect you, you should refer yourself directly to the original patent documents and get your own legal advice. I have written a brief analysis of the main patent, available here (though these posts should not be taken as a replacement for legal advice):

http://broadstuff.com/archives/2518-App-Vendors,-Fear-Not-the-Troll-or-In-App-Upgrade-Lodsys-Patent-Can-Be-Circumvented.html

And some further analysis here:

http://broadstuff.com/archives/2519-Lodsys-issue-a-response,-but-more-questions-are-raised.html

Though I re-iterate, if you are at all concerned, get legal advice, (or wait for a response from Apple, but again, if none is forthcoming, get legal advice).

May 21 2011 at 7:27 PM Report abuse rate up rate down Reply
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