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EFF takes on Lodsys patent controversy

Dana Franklin

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Julie Samuels, a Staff Attorney at the Electronic Frontier Foundation (EFF), said Apple should join forces with its developers to dispute patent infringement complaints Lodsys, LLC sent to several independent iOS app-makers last week.

On May 13, a number of iOS developers reported being told their apps, by using the in-app purchase mechanism built into Apple's development kit, infringed on intellectual property owned by Lodsys, a patent holding company based in Texas. According to Lodsys, their patent specifically covers technology that allows end users to upgrade "light" editions of software to fully functional apps. Lodsys claims that Apple, Google, and Microsoft already pay to license the technology for themselves (possibly through investments in the patent portfolio of Intellectual Ventures), but licensing agreements with these tech giants do not extend to third party developers.

Unfortunately, Apple requires developers to use the in-app purchase mechanism it provides, and the Cupertino company's developer agreement does nothing to protect app creators from patent infringement claims against technology it builds into iOS. Samuels argues this is a "misallocation of burden" onto individual developers who often don't have the resources needed to combat infringement suits.

Even if a developer does explore the patent universe for possible pitfalls, it's unlikely he or she would look into any of Apple's technologies since most reasonable people (including lawyers) would expect the company to avoid exposing its app-makers to additional liability. App sellers already surrender 30% of the revenue from each sale to Apple; adding the threat of patent lawsuits or additional licensing fees may deter new and existing developers from choosing to create software for iOS.

Last we heard, Apple was "actively investigating" the Lodsys patent infringement claims. It's still not clear what actions the company will take next, but Samuels says, "by putting the burden on those least able to shoulder it, both Apple and Lodsys are harming not just developers but also the consumers who will see fewer apps and less innovation."

She hopes Apple will "do what's right and stand up for their developers and help teach the patent trolls a lesson."

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