Lodsys in a Panic to Keep Apple Out of Suit

http://www.groklaw.net/article.php?story=20110828073533134

by grellas • 15 years ago

129 28 15 years ago

raganwald4• 15 years ago

Lodsys is not “confused on the law.” Lodsys’s argument is confused on the law, Lodsys the entity is perfectly aware of the law and is attempting to “exploit” the law and the system.

It’s a clear case of “Gotcha, you neglected to get wording protecting your developers, so even though we all knew what you thought you were licensing, we’ll try to screw you just because it doesn’t cost us that much to try."

sunchild• 15 years ago

I'm having a hard time understanding how the lawyers who negotiated Apple's license never raised/confronted this issue.

raganwald4• 15 years ago

I imagine they did, but Lodsys hope to convince a judge that the wording chosen doesn’t say what everyone else on the entire planet thinks it says.

Why else would Lodsys be working so hard to keep Apple out of the lawsuits? They don’t want to have this debate with Apple’s lawyers, they want to have this debate with whomever the small ISVs can afford. If this lawsuit was in “good faith,” they’d welcome Apple to the party. If they had the law on their side, Apple would have no choice other than allow their ISVs to be raped or pay Lodsys a shakedown fee to stop suing the ISVs.

Tyrannosaurs3• 15 years ago

Is that really what they're doing though?

The reason I ask is that their attempt to get discovery on the Apple license suggests that they don't know what the license covered (remember it was taken out not with Lodsys but with a previous patent holder).

If that's genuinely the position then they don't know what sort of case they've got. At the very best it would seem that they are hoping that there is enough wiggle room in the license to give them something but the request points to this being, at least to some degree, a punt as much as a clever legal move.

But to me what this really looks like is what we suspected it was all along - a legal shakedown of small, vulnerable developers without the finances or expertise to fight it.

Lodsys may or may not have a water tight legal case but from what we're seeing here they're certainly not geared up for a hardcore legal fight rooted in a solid basic case. Instead what they're doing seems to be throwing everything they can at it regardless of merit and hoping that something sticks.

In some situations that's a perfectly reasonable strategy - essentially if you're trying just to delay things and rack up costs for the other side to make settling look appealing - but against Apple who have enough money to fight this from pocket change and a vested interest not just in winning but in crushing you to put anyone else off the idea of ever trying this sort of thing again?

raganwald4• 15 years ago

Well obviously I’m speculating out of my ASSets, but legal discovery goes beyond “show us the contract.” They get to grill the lawyers and managers who drafted the contracts, review emails written about the contracts, and so forth. they ought to get a look at just about everything that might come up as evidence in a suit.

So I don’t know for sure whether they know what’s in the contract, but I would not say that just because they’re asking for discovery, therefore they have no idea what the contract says.

jerf• 15 years ago

Very little in this sort of thing surprises me, but this passed the threshold: "Lodsys next argues that it should be granted the right to conduct discovery on the Apple license in order to establish that the license doesn't grant whatever rights Apple claims." Apparently, Lodsys doesn't even know what license has been extended to Apple. Which is slightly less silly than I'm making it sound because it was the previous patent owner that did it, but still.... does seem a rather disadvantageous position to be trying to prosecute litigation from, almost to the point of bad faith if not actually over the line.

Tyrannosaurs3• 15 years ago

That's spectacular.

No wonder they don't want to defend it against Apple, aside from Apple's financial and legal might, they seem to have no idea what they might actually be defending against.

"Your license doesn't say that! At least we think it doesn't, can you just let us have a look at it to check?"

rhizome2• 15 years ago

It's like Microsoft/SCO all over again, only this time it's Myhrvold/Lodsys.

josephcooney• 15 years ago

Was there ever any shred of evidence that the actions of SCO were influenced or directed by MS? I'm legitimately curious.

collint• 15 years ago

This isn't quite the point of the article but holy crap is this an awful patent:

“[a] communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location"

What on earth could that NOT mean?

SmilingRob• 15 years ago

It couldn't mean when each unit communicates independently to the central location. The app uses the app store independently from the upgrades to purchase upgrades. Instead of talking to the upgrade locally and "carrying the results of the two-way interaction" to the app store.

That's my opinion on the legalese because Apple shows screenshots of the app store in the middle of the communication process.

lukejduncan• 15 years ago

Can we start referring to Lodsys as Lodsys/Intellectual Ventures? IV makes money off these suits as well...

kenjackson• 15 years ago

But Apple from IV...

http://business.timesonline.co.uk/tol/business/entrepreneur/...

"Now he has attracted more than $5 billion (£3.4 billion) from Intel, Sony, Apple, Nokia and Microsoft to fund cutting edge research into green power and technologies for the developing world."

Should we start referring to it as Lodsys/Apple?

wes-exp• 15 years ago

To be fair, aren't those companies just victims of IV's patent shakedowns rather than IV co-conspirators?

ja2ke2• 15 years ago

I'm confused on this -- Is Webvention another IV spinoff like Lodsys, or are they an actual independent patent holding company?

mikeryan• 15 years ago

Webvention (which is really one guy Dan Abelow) was the company which originally filed the patent. IV/Lodsys bought the rights to the patent from them (him). Note this is how IV gets their patents - they purchase them from existing patent holders for the most part.

The confusion seems to be that Apple actually licensed the patent from Webvention, not Lodsys and that license would transfer with the sale of the patent rights. From this filing it looks like Lodsys hasn't read the existing licenses which transferred over, which is a bit absurd.

ja2ke2• 15 years ago

Thanks! I know that IV buys patents up and then doles them out to litigation-only spinoffs, but I didn't know how far down the line Webvention was.

lawnchair_larry2• 15 years ago

Has it been confirmed yet that Lodsys is a trolling front for Intellectual Ventures?

schrototo• 15 years ago

Lodsys shares an "office" (a nondescript door in a corridor of empty rooms) with one of Intellectual Ventures' known shell companies. I'm sure it's just a coincidence...

lawnchair_larry2• 15 years ago

I wasn't trying to express skepticism - the whole thing smells pretty bad. I was just looking forward to seeing the nail in that coffin :)

tritchey• 15 years ago

I've seen the current software patent debacle compared to a nuclear standoff. Reading this article made me think of another analogy: Gangs. How long until independent developers will need to either join the Bloods or the Crips in order to fall under the umbrella of their protection? Unless you are a paid-up member of the Apple or Google development programs, you are a potential victim of random drive-by-lawsuits. Even if you are a member you may get shot at, but the gang will retaliate on your behalf.

Lodsys in a Panic to Keep Apple Out of Suit

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