Why the Lodsys patent troll drama may not yet be over

Tue, May 24, 2011

Legal, News

Apple yesterday warmed the hearts of developers when it took a stand against Lodsys and effectively sent them a cease and desist letter warning them to stop trying to enforce patents iOS developers are undisputedly licensed under via Apple.

Apple’s letter reads in part: “Apple requests that Lodsys immediately withdraw all notice letters sent to Apple App Makers and cease its false assertions that the App Makers’ use of licensed Apple products and services in any way constitute infringement of any Lodsys patent.”

Hopefully Lodsys will retreat back into its cave like the patent troll it is and we won’t hear much from them anymore.

But there is a chance Lodsys will still make good on its promise to sue developers. Or, Lodsys might very well engage in a new dispute with Apple over whether or not iOS developers are entitled to patent protection under Apple’s licensing deal.

Highlighting why the Lodsys drama may no yet be over, the always in-depth FOSS Patents blog takes us through a few scenarios that might transpire in the wake of Apple coming to the rescue of iOS developers.

App developers have to understand that Lodsys can still sue them. Apple’s letter does not prevent Lodsys from doing that, and it would be a way for Lodsys to pursue its agenda. It wouldn’t make economic sense for Lodsys to sue a few little app developers based on the damage awards or settlements Lodsys might get out of such a lawsuit. However, for Lodsys it would still be worth it if this resulted in a lucrative settlement with Apple, or if it (alternatively) scared potentially thousands of app developers so much that they would pay. Lodsys would sue some app devs only to set an example, and for the ones to whom it happens, that would be an unpleasant situation.

Toss in travel expenses, legal expenses, depositions, subpoenas, and a Lodsys lawsuit is nothing but a pure headache for small time developers. Given the ferocity of Apple’s letter, we imagine Apple would certainly get involved should Lodsys actually try and sue developers, Apple’s cease and desist letter notwithstanding.

Lodsys claimed that it owns four patents, and only one of them was claimed to be infringed by in-app upgrades. Lodsys might still try to assert any or all of the other three patents against some app developers (or even the same one again but in connection with different infringement allegations). Since Apple has a license, it would certainly take a close look at such assertions to determine whether its license also benefits its app developers. But it’s hard to tell what Apple would do if Lodsys made assertions that relate to the apps themselves and not at all to the platform Apple provides.

Again, we can only hope that this Lodsys patent trolling nonsense is a thing of the past, but FOSS points out that Lodsys is already suing a conglomerate of large companies over printing patents that’s “collectively even more powerful than Apple” and so it would be “irresponsibly optimistic to assume that Apple’s letter all by itself is going to make Lodsys give up.”

We’ll be watching closely.


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