Judge tosses Apple motion, allows patent troll Lodsys to continue rampage

http://arstechnica.com/tech-policy/2013/09/judge-tosses-apple-motion-allows-patent-troll-lodsys-to-continue-rampage/

by protomyth • 13 years ago

171 105 13 years ago

x00543• 13 years ago

Apple should hire a nation wide law firm to defend any and all apple developers who are sued by Lodsys fore these patents. Instruct the lawfirm to never settle and actively file actions on beheld of each client against Lodsys. It's simple, once they realize that no one will settle with them, they will go away.

Now, where on earth is that patent troll bill congress has been promising?

warfangle• 13 years ago

Congress is too busy attempting to filibuster the debate period to get anything done.

ajross• 13 years ago

If Apple is "instructing" that firm, then they aren't representing their clients' interests correctly. That sort of relationship is actually very hard to manage in the courts, which is why it's quite rare (and usually limited to true pro bono work by established non-profits).

fbuilesv2• 13 years ago

If Apple is "instructing" that firm, then they aren't representing their clients' interests correctly.

Sorry to pick on just one phrase of your comment but I'm honestly curious. How is the "not-representing the client's interests" thing a problem inside a court? Is it because the other side or the court will pick on it, or is it because it honestly does not represent a client's interests[0]?

[0] In this case, I can't imagine an app. developer not wanting help dealing with this specific problem, but I've never been in that position.

x00543• 13 years ago

Ok, instruct is probably a bad term, I know what you mean. What Apple can do is promise to indemnify the individual developer for any out of pocket expenses above and beyond the initial settlement offer, as long as the developer chooses to use the free legal defense apple would provide, and not settle the case.

If the lawyer and the developer, for what ever reason, decide that it's best to settle, it's fine, in that case the developer would have to pay out of pocket for the settlement, but they would be no worse off, and they would get a free attorney helping them in either case.

For apple this arrangement would be relatively inexpensive, as long as they hire a nation wide firm. Since the causes of action in each case are exactly the same, the defense would be exactly the same, same expert opinions, same motions, etc. For developers that publish to both Google Play and App Store, it's only fair if google would kick in 1/2 the costs, but if they do not, then it would be a huge PR win for apple. Basically, they would be saying, develop with us, and we will take care of you.

josephlord• 13 years ago

Yes they could do more to help but at least they are doing more than Google.

justinpombrio• 13 years ago

Here is what Lodsys has to say about the creator of the patents it asserts:

Abelow is not an officer or manager of Lodsys Group LLC, he has no interest in Lodsys patents, and he does not receive any revenue from the licenses granted by Lodsys in the patents he created.

jevinskie• 13 years ago

So Abelow is either a fool for not getting a cut from Lodsys or he is a patent gifting fairy.

randomfool3• 13 years ago

Neither- he already cashed out. He sold the patents years ago.

Just like you can sell stock to people completely unrelated to a company, you can sell patents too. Patent trolls are just efficient monetization of patents. The real problem is patent law (and judges preventing class-action to allow more efficient judgement of the validity of patents).

geuis7• 13 years ago

Why hasn't anyone addressed the probable criminal activity going on with these handful of judges in this one district of Texas? Just because someone has the title "judge" doesn't give them untouchable super powers. There's a giant reek of illegality coming from that area and someone needs to look under the covers.

My hypothesis is there's a payoff racket going on. There's a multi level system setup with a few insiders who know how to pay off the local judges to dismiss certain cases.

This is Texas. These people don't have some sense that big bad companies are beating up on little old inventors trying to protect themselves with patents as has been portrayed in the media. These people are generally small minded Jesus followers who can't name 20 states outside of Texas and would be hard pressed to remember the name of the Vice President.

I'm not speaking out of my ass either. I've lived in Texas. I have family there now.

There's some serious corruption going on and it needs looking into.

benologist2• 13 years ago

That seems highly unlikely given that Apple etc aren't retarded and would have pursued that theory if they thought it was possible.

andybak2• 13 years ago

This is the worst quality top comment I've seen on HN in a while. I hope it doesn't stay top.

k-mcgrady• 13 years ago

> "This is Texas. These people don't have some sense that big bad companies are beating up on little old inventors trying to protect themselves with patents as has been portrayed in the media. These people are generally small minded Jesus followers who can't name 20 states outside of Texas and would be hard pressed to remember the name of the Vice President."

Grow up. There's no need to insult over 25m people based only on your personal experience and conspiracy theory.

dctoedt8• 13 years ago

Why hasn't anyone addressed the probable criminal activity going on with these handful of judges in this one district of Texas? ... My hypothesis is there's a payoff racket going on. There's a multi level system setup with a few insiders who know how to pay off the local judges to dismiss certain cases.

Careful there. Unless you've got more than a hypothesis, what you're saying borders on the libelous. (Not that a federal district judge would deign to notice. The judges are public figures, so you have enhanced protection under the First Amendment, but making a statement like this, without evidence to support it, might qualify as the type of "malice" that can pierce the First Amendment protection.)

The judge is constrained by long-established rules. Article III of the U.S. Constitution limits the power of the federal courts to actual cases and controversies. If the parties to a lawsuit settle the case, then that case is moot, and with very limited exceptions, the judge is automatically stripped of pretty much all authority in the matter. (You wouldn't want it any other way, given that Article III judges are appointed, not elected, and for life.)

The battle isn't necessarily over. Apple might well be able to make a case on appeal that it should be allowed to continue to litigate against Lodsys, on grounds that the same issue is likely to come up again and be settled again, thereby evading judicial review. That's a standard exception to the mootness doctrine [0], and the U.S. Court of Appeals for the Federal Circuit is likely to give it serious consideration.

Disclosure: I'm a Texan; a lawyer, also admitted in California; and a patent litigator in a previous life.

[0] http://en.wikipedia.org/wiki/Mootness#Capable_of_repetition....

sillysaurus2• 13 years ago

This is the definition of "What the fuck." Why should he be careful about what he says on a forum, just because he's talking about a judge? He didn't threaten anybody.

option_greek• 13 years ago

"The judge is constrained by long-established rules. Article III of the U.S. Constitution limits the power of the federal courts to actual cases and controversies."

Even if that was the case, assuming nothing bad is going on, there has to be a reason all these cases end up there. It's too frequent to be a coincidence.

mistercow4• 13 years ago

Don't terms like "probable" and "my hypothesis" pretty obviously make this a statement of opinion, and therefore immune to libel claims?

geuis7• 13 years ago

Thanks for a well-discussed and well-thought response, which is more than the other responses garnered. "Go back to Slashdot", "You're a biggot", etc.

I say what I think and while some people don't like what I say, I try to be as realistic about a situation as I can be. So yes, on average Texans are among the most devout Christians and among the worst educated in the United States. There are more than enough public statistics to back this up.

In response to your libel statement, while I respect your background, that is entirely not the point.

It's actually exactly the response I would expect from someone or a group who are involved in nefarious acts and are being called out on it. Rather than addressing the accusation and presenting evidence to the contrary, they seek to attack and silence the investigator by throwing out accusations of libel. It's a tactic of snakes.

Unless I am seriously misunderstanding what happened here, which is possible, there was no mutual settlement here. Lodsys was allowed to unilaterally settle. Most of Apple's arguments were just ignored. Quoting from the article,

"The East Texas judge overseeing Lodsys' systematic patent attack on app developers has refused to even consider Apple's motion. Instead, he allowed the patent-holding company to settle all its cases—and then dismissed Apple's motion as moot. By doing so, US District Judge Rodney Gilstrap—who has inherited the patent-happy East Texas court that once belonged to patent-troll favorite T. John Ward—has enabled Lodsys to threaten developers for months, and perhaps even years, to come."

This is why I stand by my question of corruption. Another commenter posted about no one finding corruption out of normal bounds. At least someone has been looking into it. But when you smell smoke, something's burning. These cases keep getting the same rulings over and over, in one area of the country, by the same judges, in an area of business that is essentially parasitic and damaging to the very nature of my industry. It has to stop

moocowduckquack6• 13 years ago

Surely the words "probable" and "hypothesis" are what means it is almost definitely not libellous. A hypothesis is the start of reason, not the conclusion of it. To state a hypothesis is to admit to a suspicion that something is possible, not to state something to be true.

cft• 13 years ago

Easy mr. Patent Lawyer.. Read this: Lodsys can be sure it will continue to draw Judge Gilstrap as long as it files its cases in Marshall, Texas. The other judge who considers patent cases filed there is US District Judge Leonard Davis; but since Judge Davis' son William "Bo" Davis is Lodsys' lawyer, the company's cases will all be redirected to Gilstrap.

I think this is grounds for further investigation.

drone• 13 years ago

I'm not speaking out of my ass either. I've lived in Texas. I have family there now.

Yes, you are. And you're a bigot to boot.

efa2• 13 years ago

Everyone knows you are allowed to be bigoted when it's white southerners or Christians. duh!

nsxwolf• 13 years ago

Religious bigotry == instant downvote. Go back to Slashdot.

ktr100• 13 years ago

Foresee successfully moved to have the venue changed to Northern Illinois and still settled... I think it's more than the location. It's the system that's broken!

http://www.research-live.com/news/legal/foresee-settles-lods...

aspensmonster• 13 years ago

It's Texas. With its Republican judiciary and Republican legislature and Republican executive branch, you'd think that things like cronyism and corruption and rackets and other forms of meddling with the Invisible Hand of the Free Market would be frowned upon. You'd think Texas would be a paragon of Free Market economic ideology.

But who am I kidding, you've lived here too. Minus a short stint in Denver, I've lived here my whole life. People can say you're speaking out your ass and call it bigotry all they want --and demand you return to Slashdot; it seems Hacker News considers itself above such lowly forums as Slashdot and Reddit-- but it doesn't change the truth of the matter. A majority of the citizenry of this state make their opinions on such matters perfectly clear with every vote in every election they participate in. Hell, there's a significant contingent belonging to the Tea Party who think the Republicans don't go far enough. They were significant enough to elect a Tea Party representative to the U.S. Senate. That's mental. The only real hope Texas has is that eventually the Hispanic block grows to eclipse the Republican block without falling prey to the Catholic priests who say in so many words that Jesus wanted you to vote Republican.

wakkalakka• 13 years ago

This is not about red vs. blue, Republican vs. Democrat, liberal vs. conservative, or anything else like it.

Everyone tries to get their patent cases heard in this particular district in Texas the same way that everyone incorporates in Delaware. It's one particular legal venue that just happens to be friendly to certain vested interests. The reason to seek out this venue is because of nothing more than apolitical favoritism towards patent holders. That's all. Don't make this into something it's not.

DenisM• 13 years ago

In all honesty of would be better if the two of you went somewhere else with your inflammatory rethoric. If you have a case, or a hypothesis for one, state it clearly, and without name-calling. There are enough places on the Internet for mud-slinging, let's keep at least one or two for civilized discourse.

randomfool3• 13 years ago

It's not so much corrupt judges as the local economy has found a niche with patent lawsuits. All these lawsuits bring in lots of big-spending lawyers and various support staff. Patent lawsuit litigation brings a major influx of money here- everyone knows it and no one wants to rock the boat.

efa2• 13 years ago

Just because you lived in Texas doesn't give you a pass in saying such a hateful thing. This is the most ignorant thing I've seen on HN in a long time.

geuis7• 13 years ago

You're partly right. I'm not particularly happy that a) I expressed myself this way and b) its the top voted comment on this article. There's a deeper message that I was trying to get across but this came out pretty badly.

geuis7• 13 years ago

It's too late for me to edit my comment. If you read through some of the subsequent discussion you can see where a couple of helpful people cleared up some misconceptions I had when posting initially.

I still think there's something shady going on in that district but I don't want to put forward any specific assertions about criminal activity.

Don't upvote my comment if it sounds like righteous fervor and you agree with it because of that.

clavalle3• 13 years ago

I don't think it is as clear cut as flat out bribery but these judges know what side their bread is buttered.

They live there. They are friends with hotel and restaurant owners. Their family members are local patent attorneys. They have relatives that own 'commercial office buildings' that are nothing more than empty offices for a convenient mailing address for shell companies.

If they started looking less friendly to plaintiffs they know all of that out-of-town cash would dry up to a great extent. They would become a pariah, which, in a small town is not something you can easily hide from.

*Edit: The same can be said for the juries as well.

rayiner• 13 years ago

These are federal judges. They have life tenure. Fewer patent cases just means more time for golf.

giardini• 13 years ago

Please do not make angry and spiteful accusations without presenting any supporting evidence whatsoever. If you have evidence then please present it either here or to the proper authorities.

You should be more careful about what you say.

I am surprised that HN doesn't mark these posts down. Less foolish statements have been censured by the powers that be on this forum.

joe_the_user• 13 years ago

The system is transparently corrupt in the larger, common sense of the word.

The corrupt players, unfortunately, may have enough false-Chinese walls and connections that they cannot be brought up for the violation of any particular laws.

The situation, in fact, is one that has become standard in the US. We can see as a broader example the "revolving door" where ex-government officials join industry and vice-versa. As long as particular, explicit payoffs can be avoided, the overall process of favoring certain players and approaches and having a strong expectation of a payoff in the end is basically legal.

Edit: at end of article - Lodsys can be sure it will continue to draw Judge Gilstrap as long as it files its cases in Marshall, Texas. The other judge who considers patent cases filed there is US District Judge Leonard Davis; but since Judge Davis' son William "Bo" Davis is Lodsys' lawyer, the company's cases will all be redirected to Gilstrap. That this kind of essentially incestuous relationship is allowed should say a lot.

pyre2• 13 years ago

That this kind of essentially incestuous relationship is allowed should say a lot

How so? Would you rather that the judge be related to the plaintiff's lawyer? Would you not be crying "Conspiracy! Corruption! Favouritism!" then? Should the judge's son be disallowed from practicing law?

saryant4• 13 years ago

You do realize that Texas doesn't appoint or elect these judges, the President does, right?

javajosh2• 13 years ago

The threat that Lodsys represents to anyone doing technology is so large that it would seem to make sense to band together. I'm thinking along the lines of creating a "Patent Defense Cooperative" where members pay a certain amount every month for the three purposes of a) patent lawsuit insurance, b) to fund lobbying efforts to reform the patent system, and c) scrutinize a judicial apparatus that seems biased in favor of patent trolls.

I would certainly join such an organization as an individual inventor and technologist. This can't be a new idea. Has anyone else thought of doing this?

randomfool3• 13 years ago

Sweet- so Apple can join this and infringe on anyone's patents and get their legal bills paid for?

Seriously though, it would have to have some clear definition of patent troll.

It would be interesting to have some sort of insurance- say $5million to be spent in case of patent lawsuit. Make a clear public statement- we will never settle and WILL spend $5m in case of a lawsuit. Would make it very counter-productive for small-time trolls.

This is essentially what NewEgg did and it makes sense.

javajosh2• 13 years ago

You are right. Luckily there is a fairly well known, small list of patent trolls (the people mind you, not the meaningless shell companies) that could be simply enumerated, with the charter of the cooperative allowing additions (but never removals). I mean, I'd pay $20/mo for Lodsys protection alone.

AnthonyMouse2• 13 years ago

Sweet- so Apple can join this and infringe on anyone's patents and get their legal bills paid for?

Presumably it would cover litigation costs but not liabilities. So if you lose at the end, you still lose and have to pay damages out of your own pocket.

Seriously though, it would have to have some clear definition of patent troll.

Not necessarily. You might not classify the likes of IBM as a "patent troll" under some definitions, but having some sort of litigation expenses insurance when they come knocking would certainly be welcome. Why not avoid the hair splitting exercises and just have the insurance kick in whenever someone makes a patent infringement claim against you?

AnthonyMouse2• 13 years ago

patent lawsuit insurance

Lawsuit insurance is interesting. The problem seems to be that if an insurance company is funding the defense then they have the same incentive to pay a settlement rather than fight that anyone else does, and that would just cause even more money to go into the pockets of trolls by giving them a deep pocket in the form of the insurance company, exacerbating the problem (and making the premiums unaffordable).

But let's suppose we solve that by stipulating up front that the insurance money can't be used for a settlement. If you want the money then you have to fight; it can only go to lawyers, not plaintiffs. That would be an interesting dynamic. (Obviously plaintiffs would hate it with the fire of a thousand suns because it would cause all but the most blatantly liable defendants to fight.)

to fund lobbying efforts to reform the patent system

That sounds pretty sensible.

scrutinize a judicial apparatus that seems biased in favor of patent trolls

I don't see this going anywhere. It is far, far easier to lobby to have the law changed by Congress after a judge does something you don't like than to actually have the judge punished for the ruling. What you may want to do here is to lobby for sympathetic judges to be appointed to e.g. the Eastern District of Texas or the Federal Circuit (which has jurisdiction over patent appeals), but that's obviously not a short-term solution because the turnover rate isn't that high.

mbreese• 13 years ago

The problem seems to be that if an insurance company is funding the defense then they have the same incentive to pay a settlement rather than fight that anyone else does

Unless more than one client of the insurance company might be on the hook for the patent. In which case, they'd simply have to figure out if it was worthwhile to fund one lawsuit to the end, in order to see if they could save money for the other client's policies.

Lets say that settling will cost $50,000 and taking the case to trial will cost $200,000 w/ a high likelihood of success. For a single company, the calculation is simple - settle, it's cheaper. But, if an insurance company is behind 5 companies that all might be sued for infringement, then it would make sense to fight at least one of the suits in order to try to save the settlement fees from the other four.

mcherm• 13 years ago

The problem seems to be that if an insurance company is funding the defense then they have the same incentive to pay a settlement rather than fight that anyone else does

Not true at all. The difference is that the individual needs to factor in the cost of one defense (tens of thousands of dollars at a minimum - PLUS the chance of loosing and then going out of business) versus the cost of the settlement (perhaps a few tens of thousands of dollars). Financially, it makes no sense to pursue the case.

The insurance pool needs to factor in the cost of ONE defense (tens of thousands of dollars at a minimum -- PLUS the chance of loosing and then owing a court's determination of a "reasonable cost" for licensing the patent for all the pool's clients) versus the cost of ALL the settlements (a few tens of thousands of dollars times how ever many clients the pool has).

A pool doesn't need to get very big before it's financially advantageous to pursue cases you are likely to win and to settle cases you are likely to lose. (By comparison, for individual companies, the best short-term benefit is gained by settling in ALL cases.)

chetanahuja• 13 years ago

The texas east district stuff is fascinating. What if the app and software developers start licensing their apps with a license and technical measures explicitly excluding East Texas (or the entire state of texas, for extra safety) from the operation of the app.

It could be enforced by some soft of geofencing at app startup that splashes a "You're from East Texas, our app doesn't work there" type language. Will that affect the ability of the trolls to venue shop at least (if not to bring the suite in the first place).

Of course an even better response would be if smartphone vendors disable their entire OS's in that district. That might be fun.

possibilistic• 13 years ago

I like this idea a lot.

If the population living in the causative region understands the nature of what their governing body is doing to impact and infringe upon on the rest of the world, maybe they'll change who holds the relevant positions of power.

It would be great if we could do this to websites and technology in general as well. Maybe we can start with this kind of campaign [1], but utilize geo-IP targeting.

[1] http://internetdefenseleague.org/

saryant4• 13 years ago

It's a federal court, the State of Texas has nothing to do with it. These judges are appointed by the President.

cobrausn2• 13 years ago

Apparently geolocation is now to be a form of discrimination we can really get behind!

hrabago• 13 years ago

I've wondered about this, too. Would this approach be a legit workaround for this problem?

comex• 13 years ago

Note that since Lodsys apparently sues over use of in-app purchases, you don't even have to block the app entirely, which would fall foul of the App Store guidelines on iOS (2.22) and might alienate users. Just disable the in-app purchases...

josaka• 13 years ago

I think these patents have expired. US 7,620,565 and 7,222,078 date back to an August 1992 parent application, and were themselves filed in 1999, after the 20-years from priority date rule went into effect. Neither was granted patent term extension. So they should have expired last year.

31reasons• 13 years ago

Microsoft -> Nathan Myhrvold (former CTO) -> Intellectual Venture (founder) -> Lodsys -> Threatening Apple Developer

Hmmm.

SeanLuke• 13 years ago

You forgot to include the Modernist Cuisine link.

rsynnott• 13 years ago

Google and Apple also have links to Intellectual Ventures. I suspect Lodsys would be happily going after WinPhone developers if not for the platform's relative irrelevance; so far they've concentrated on iOS and Android developers.

Iftheshoefits2• 13 years ago

How are any of these patents valid, especially in application to mobile application technology? I'm not a lawyer; I'm seriously baffled as to how any of them, in application to mobile "pay to upgrade" (or any other "customer interaction") flows, aren't obvious. It's the first thing I thought of when I first thought to write a mobile application and how to make money off of it.

robomartin• 13 years ago

Six million developers in the US iOS ecosystem?

If that's the case that is a massive number of people, particularly if you consider employees and contractors they might work with.

Perhaps I am being a simplistic moron. To me the solution to these problems is to make a lot of noise. A lot of it. And to do it continuously. And to do it through all available media and channels. And not to stop until the issue is dealt with by legislators. You want coverage by every single media outlet on a daily basis.

This community can make something like that happen. It's isn't that difficult if top level companies take lead. With one simple addition to their websites the entire world would become aware of the issue that is killing innovation in tech circles.

This is a community that has the power to do this. If this community unites behind a common message tomorrow the entire world could start to feel the pressure. Political leaders will have to both acknowledge and act to solve the problem.

This is not a war that will be won one battle at a time. This is a war that needs to be won through legislative action. There are far more people affected by bullshit patents than most imagine. All we need is an organization under which we could all unite and start making noise. Banners on all websites. Pop-ups on all apps. Whatever it takes.

Would it be inconvenient to our users? Possibly. However, you have to consider the idea that there's a huge opportunity here to educate everyone and, at the same time, highlight the fact that a more sensible patent system would actually improve things across the world. I am not going to do them math, but I am sure one could easily show economic advantages which will include job creation.

I wish I had the standing, time and resources to launch such a thing. I don't. There are well-funded companies with more than enough resources to devote to such an effort. To borrow from Bravehart:

Help us. Help yourselves! Now is our chance, now! If we join, we can win. If we win, well then we'll have what none of us have ever had before; freedom to create; freedom from the fear of trolls; the ability to innovate to the extent of our abilities; the freedom to create whatever our minds can imagine. You are the technology leaders and there is strength in you. Unite us. Unite us!

Judge tosses Apple motion, allows patent troll Lodsys to continue rampage

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