When it comes time to litigate, Lodsys is nothing more than a coward
The mere mention of Lodsys can often evoke a visceral response of disgust, not too surprising given that Lodsys in the eyes of many epitomizes the worst type of patent troll. Lodsys, if you recall, is a patent holding company that began targeting independent iOS developers back in May of 2011.
One of the four patents Lodsys has been asserting covers "methods and systems for gathering information from units of a commodity across a network" and Lodsys has been using it to go after any company that makes use of in-app purchasing.
While Lodsys has since gone after larger development companies, Lodsys' original strategy involved going after small and independent iOS developers without the requisite resources to mount a viable legal defense. As a result, many view Lodsys as nothing more than a shakedown artist insofar as it demands licensing agreements from developers under the threat of litigation.
But when push comes to shove, Lodsys doesn't want its patent infringement suits to go to trial. In truth, when a company has the resources to actually fight back, Lodsys can't run away with its tail between its legs fast enough.
Lodsys talks a big game, but its reluctance to go to trial underscores the weakness of its patent portfolio and its fear of having a case decided on the merits.
As a recent example, one of the companies Lodsys went after was Kaspersky Lab, an internet security firm based out of Moscow.
Ars Technica reports:
It's a classic troll situation. The '078 patent is a continuation of a continuation application, a way of essentially gaming the system to keep shifting claims while maintaining an earlier priority date. The patent shows a fax machine that asks a user for feedback about how effectively it operates, ranked on a scale of 1-5.
The accused Kaspersky product? The company's "renew license" button, present in many of its software programs, which is nothing more than a hyperlink to an online store. By clicking that button, a customer was giving its "perception" of the product, Lodsys argued, thus treading on the claims of its patent.
Only thing is, Kaspersky had no intention of settling with a patent troll like Lodsys and was willing to go to trial on the matter.
So what happened with a trial set to begin on October 7?
Lodsys blinked, dismissing its case against Kaspersky with prejudice.
"Faced with the prospect of having to actually prove its case," the Electronic Frontier Foundation writes, "Lodsys surrendered. Lodsys would rather get nothing than see a binding decision on the merits of its claims."
Eugene Kaspersky recently penned an enjoyable blog post detailing his company's victory against Lodsys. It reads in part:
I won't bore you with the details of the proceedings. I will say that this isn't the first time we've done battle with trolls, so we're up to speed on how to deal with this vermin. The main thing is to have a strategy and tactics, to immediately supply all information requested (including source code!), to quickly respond to complaints, and to demonstrate to the court both openness and a readiness to solve the matter. And of course to also exude calmness, confidence, and firmness in one's position.
Trolls, on the other hand, do everything to make things difficult; for example, we had to analyze more than 2,000 documents that formed the basis of the troll's case in a very short period of time. Based on our analysis we had to come up with crushing counter-arguments. And it was those counter-arguments that actually did finally crush our opponent, seeing Lodsys not even having the courage to show up in court! We maintained that we did not infringe any of Lodsys's patents and that their claims were invalid.
The takeaway, Kaspersky writes, is that patent trolls can be defeated. Indeed, this isn't the first we've heard of Lodsys abandoning its litigation strategy in the face of a determined defendant willing to fight back.
While true, and perhaps encouraging, the unfortunate reality is that many defendants, especially independent developers, simply don't have the time or resources to engage in protracted legal battles.
Nonetheless, it's always refreshing to see a company take on a patent troll like Lodsys and emerge victorious.
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