EFF And App Developers Alliance To Court: Don't Let Patent Troll Lodsys Avoid Apple's Attempt To Intervene In Bogus Threats
from the patent-exhaustion-is-exhausting dept
We’ve covered patent troll Lodsys a bunch of times. If you don’t recall, it’s one of many patent trolls using patents it obtained via Intellectual Ventures, to shake down tons of mobile app developers, not for anything unique that they developed, but rather because they use Apple and Google’s basic in-app payment mechanisms to let people buy stuff from within the app. Lodsys has been particularly aggressive in going after smaller independent developers who likely can’t afford a full defense. Lodsys has claimed that Apple and Google each have licensed the patents, and that shows the validity of the patents in question, but they ignore that those licenses came from deals with IV that covered a wide portfolio of patents, not this one in particular. Furthermore, Lodsys, really, really wants to avoid anyone pointing out that the fact that Apple and Google already licensed these patents suggests that developers who use Apple and Google’s tools are covered by those licenses under the concept of patent exhaustion, which says that if a supplier licenses a patent to build it into a product, the patent holder doesn’t get to double/triple/quadruple collect, by demanding licenses from everyone up and down the supply chain.
Apple, in fact, has tried to intervene in the cases that Lodsys has actually filed (against a subset of the companies to which it has sent threatening demand letters). However, it appears that Lodsys has been quite aggressive in getting companies in such cases to settle (likely by making such a settlement super cheap — much cheaper than actually going to court) and then arguing that Apple cannot intervene since the case is actually settled.
EFF and the App Developers Alliance (disclosure: the App Developers Alliance sponsors this blog, but we’ve been covering Lodsys since long before they existed, and will continue to cover them going forward as is newsworthy) have now filed an amicus brief arguing that the court should deny Lodsys’ attempt to keep Apple out of one of these cases, because it should be determined once and for all if app developers are immune from Lodsys’ questionable threats via Apple’s own license. As the brief notes, without this, app developers have significant uncertainty when receiving a threat letter — and with it a strong incentive to just settle, even if they strongly believe they do not infringe upon the patent (or that the patent is invalid).
If this Court rules in Apple’s favor, it would also grant certainty to the
millions of app developers in this country who face an open-ended threat from Lodsys. It would
have the added benefit of putting litigants and potential targets in other en masse end-user suits
on notice of the scope of risk they might be undertaking when they face these demands.