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Lodsys files suit against third-party App Store developers
Making good on its threats, Lodsys has filed suit today against several third-party iOS developers. According to Florian Mueller, Combay, IconFactory, Illusion Labs, Shovelmate, QuickOffice, Richard Shinerman, and Wulven Game Studios are among the developers targeted in the suit. A series of defensive blog posts on its site explains Lodsys's rationale for filing suit. "Lodsys chose to move its litigation timing to an earlier date than originally planned, in response to Apple's threat, in order to preserve its legal options." Lodsys also appears confident it will win these suits, claiming it will offer developers US$1000 if its claims aren't held up in court. Lodsys also claims that Apple's position, that App Store developers are covered because Apple has already paid licensing fees to Lodsys and developers are doing nothing more than using Apple's own APIs, does not protect developers from Lodsys pursuing claims against them. "Lodsys has sent a detailed legal position on the license interpretation issue, in writing to Apple that has been previously only verbally communicated."
Lodsys hits devs with lawsuit, $1,000 offer, and 1,000 words of eloquent prose
Are you sick of hearing from Lodsys? We know devs are, but the rather outspoken patent troll is at it again, hitting the blog to defend its good name. Hidden among today's posts is an announcement that the firm is taking the next steps with its accusations, filing a lawsuit against some of the developers it previously targeted and, get this, blaming Apple. It explains: "Lodsys chose to move its litigation timing to an earlier date than originally planned, in response to Apple's threat, in order to preserve its legal options." We're not sure which developers are targeted by this suit, specifically, but the firm has promised a $1,000 payment to each dev, "if it turns out that the scope of Apple's existing license rights apply to fully license you with respect to our claim relating to your App on Apple iOS." Devs may be tempted to spend that promised gift on a well-deserved vacation (or a WWDC conference pass), but with layers of LLCs protecting the man behind the curtain at Lodsys, we wouldn't be surprised it the firm disappeared before anyone sees a cent (or 99) of payment. Unfortunately, it appears that the saga continues, so if you've had enough of the patent troll, feel free to enjoy the rest of our content, Lodsys free. [Thanks, Andrew] Update: We've been told that the list of devs named in the lawsuit include: Combay, Iconfactory, Illusion Labs, Shovelmate, Quickoffice, Richard Shinderman, and Wulven Game Studios.
Talkcast tonight, 4pm HI/7pm PDT/10pm EDT: Memorial Weekend Edition!
Happy Memorial Day Weekend, kids! I've checked and double checked and it's Talkcast time! Since you're most likely off tomorrow, you have no excuse not to stay up late and join me for this week's Talkcast! We'll be spending a bit of time discussing the Lodsys Kerfuffle, developments on the current and future editions of Mac OS, and of course we'll be paying a visit to my house to discuss the latest on another operating system, iOS 5. Remember: When Kelly hosts the show, it means we have an aftershow! TUAWTF covers all manner of topics. Come for the show, stay for the aftershow. Your calls and questions help make the show the best it can be, otherwise I'm just talking to myself! To participate, you can use the browser-only Talkshoe client, the embedded Facebook app, or download the classic TalkShoe Pro Java client; however, for maximum fun, you should call in. For the web UI, just click the Talkshoe Web button on our profile page at 4 HI/7 PDT/10 pm EDT Sunday. To call in on regular phone or VoIP lines (Viva free weekend minutes!): dial (724) 444-7444 and enter our talkcast ID, 45077 -- during the call, you can request to talk by keying in *8. If you've got a headset or microphone handy on your Mac, you can connect via the free Blink or X-Lite SIP clients, basic instructions are here. (If you like Blink, the pro version is available in the Mac App Store.) Skype users with SkypeOut credit can call the main Talkshoe number; it's also a free call with the Google Voice browser plugin. Talk to you tonight!
Lodsys shifts in-app purchasing target to Android devs following Apple response
We figured Apple's firm response to Lodsys earlier this week regarding its claims against iOS devs would prompt the patent holder to move on to its next target, and sure enough, it looks as if said target has been selected. Unfortunately, a group of Android app devs have now found themselves in the Texas-based company's crosshairs, which is citing the same patent infringement that Apple recently addressed, relating specifically to in-app upgrade purchases. As was the case with the last round of letters, Lodsys is demanding licensing fees from small, individual developers, who don't have the resources to fight back. Lodsys appears to be maintaining its trend of ignoring media requests, so we're keeping an eye on the patent troll's blog to see if anyone comes up to the surface to defend this latest round of allegations. In the meantime, plugging your ears while humming and ignoring the mailman might not be such a bad idea... you know, if you do this kind of thing for a living.
Developers band together to fight Lodsys if necessary
After Lodsys started sending threatening letters to developers, Apple took some time to issue a statement to developers hit by the notices which seemed to provide cover for them. Unfortunately, nothing in Apple's letter to developers said, "We'll pick up the tab for any legal costs you incur." So a band of developers have decided to pool their resources and secure counsel to help defend any legal action should Lodsys actually file suit against any of them. I was informed that Villain and Iconfactory are two of the shops banding together, and I was asked to help spread the word. While I can agree that hiring a lawyer to deal with a lawsuit is prudent advice, I feel it is worth noting that no action has yet been taken in court, and Apple seems locked in a staring contest with Lodsys. One blink and they are toast. Then again, I am not a lawyer. Villain CEO Dane Baker asked to relay this message: "Villain received an infringement notice and we disagree with it. We're asking all iOS developers who received similar notices from Lodsys to get in touch with me to discuss pooling resources in the event of a lawsuit. Any interested developers can e-mail me at dane@villainhq.com." I applaud the effort and hope they never have to use any funds to fight anyone in court; let's hope they can leave it to Apple, with its vast coffers and crack legal team, to defend its licenses instead.
Apple responds to Lodsys infringement accusations, says developers are not responsible
Apple has responded to developers targeted by Lodsys, a patent holding firm that accused iOS devs of infringing on its intellectual property covering in-app upgrade purchases. In a letter from Apple dated today, the company claims that Lodsys's accusations are baseless, and explains that devs, or "App Makers," are "entitled to use this technology free from any infringement claims by Lodsys," because Apple has already licensed the technology on their behalf. Apple's response is firm, and as expected, the company is in full support of developers. Jump past the break for the full letter from Apple legal.
Apple responds to Lodsys patent claims, backs up developers (Updated)
Update 2: Macworld just posted the complete text of the letter sent by Apple's legal department to Lodsys, as has CNET. You can view the text of the letter below, or see the full-color version on Scribd. The letter asserts definitively that Apple's license for the Lodsys patents covers the developers who are using App Store upgrade technologies. "[The] technology that is targeted in your notice letters is technology that Apple is expressly licensed under the Lodsys patents to offer to Apple's App Makers. These licensed products and services enable Apple's App Makers to communicate with end users through the use of Apple's own licensed hardware, software, APIs, memory, servers, and interfaces, including Apple's App Store. Because Apple is licensed under Lodsys' patents to offer such technology to its App Makers, the App Makers are entitled to use this technology free from any infringement claims by Lodsys." --- A flurry of tweets from developers indicates that Apple will be taking an active role in dealing with the patent infringement complaints from Lodsys, LLC. This comes a few days after the Electronic Frontier Foundation issued a statement urging Apple to assist its developers in the fight. Although none of the developers we spoke with could comment, it seems clear from the public tweets that a collective sigh of relief is going through the developer community about now. "The sheer amount of support from everyone regarding the patent matter is quite humbling. Can't say thanks enough," Iconfactory's Gedeon Maheux tweeted. The Lodsys situation was also a primary focus of Sunday's TUAW talkcast. Listen to the full discussion and an interview with Maheux here. Update 1: The Loop quotes the letter from Bruce Sewell, Apple Senior Vice President and General Counsel as saying, "Apple is undisputedly licensed to these patents and the App Makers are protected by that license." Show full PR text BY EMAIL AND FIRST-CLASS MAIL May 23, 2011 Mark Small Chief Executive Officer Lodsys, LLC [Address information removed] Dear Mr. Small: I write to you on behalf of Apple Inc. ("Apple") regarding your recent notice letters to application developers ("App Makers") alleging infringement of certain patents through the App Makers' use of Apple products and services for the marketing, sale, and delivery of applications (or "Apps"). Apple is undisputedly licensed to these patent and the Apple App Makers are protected by that license. There is no basis for Lodsys' infringement allegations against Apple's App Makers. Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple's license rights. Because I believe that your letters are based on a fundamental misapprehension regarding Apple's license and the way Apple's products work, I expect that the additional information set out below will be sufficient for you to withdraw your outstanding threats to the App Makers and cease and desist from any further threats to Apple's customers and partners. First, Apple is licensed to all four of the patents in the Lodsys portfolio. As Lodsys itself advertises on its website, "Apple is licensed for its nameplate products and services." See http://www.lodsys.com/blog.html (emphasis in original). Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them. Second, while we are not privy to all of Lodsys's infringement contentions because you have chosen to send letters to Apple's App Makers rather than to Apple itself, our understanding based on the letters we have reviewed is that Lodsys's infringement allegations against Apple's App Makers rest on Apple products and services covered by the license. These Apple products and services are offered by Apple to the App Makers to enable them to interact with the users of Apple products-such as the iPad, iPhone, iPod touch and the Apple iOS operating system-through the use or Apple's App Store, Apple Software Development Kits, and Apple Application Program Interfaces ("APIs") and Apple servers and other hardware. The illustrative infringement theory articulated by Lodsys in the letters we have reviewed under Claim 1 of U.S. Patent No. 7,222,078 is based on App Makers' use of such licensed Apple products and services. Claim 1 claims a user interface that allows two-way local interaction with the user and elicits user feedback. Under your reading of the claim as set out in your letters, the allegedly infringing acts require the use of Apple APIs to provide two-way communication, the transmission of an Apple ID and other services to permit access for the user to the App store, and the use of Apple's hardware, iOS, and servers. Claim 1 also claims a memory that stores the results of the user interaction and a communication element to carry those results to a central location. Once again, Apple provides, under the infringement theories set out in your letters, the physical memory in which user feedback is stored and, just as importantly, the APIs that allow transmission of that user feedback to and from the App Store, over an Apple server, using Apple hardware and software. Indeed, in the notice letters to App Makers that we have been privy to, Lodsys itself relies on screenshots of the App Store to purportedly meet this claim element. Finally, claim 1 claims a component that manages the results from different users and collects those results at the central location. As above, in the notice letters we have seen, Lodsys uses screenshots that expressly identify the App Store as the entity that purportedly collects and manages the results of these user interactions at a central location. Thus, the technology that is targeted in your notice letters is technology that Apple is expressly licensed under the Lodsys patents to offer to Apple's App Makers. These licensed products and services enable Apple's App Makers to communicate with end users through the use of Apple's own licensed hardware, software, APIs, memory, servers, and interfaces, including Apple's App Store. Because Apple is licensed under Lodsys' patents to offer such technology to its App Makers, the App Makers are entitled to use this technology free from any infringement claims by Lodsys. Through its threatened infringement claims against users of Apple's licensed technology, Lodsys is invoking patent law to control the post-sale use of these licensed products and methods. Because Lodsys's threats are based on the purchase or use of Apple products and services licensed under the Agreement, and because those Apple products and services, under the reading articulated in your letters, entirely or substantially embody each of Lodsys's patents, Lodsys's threatened claims are barred by the doctrines of patent exhaustion and first sale. As the Supreme Court has made clear, "[t]he authorized sale of an article that substantially embodies a patent exhausts the patent holder's rights and prevents the patent holder from invoking patent law to control postsale use of the article." Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617 (2008). Therefore, 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. Very truly yours, Bruce Sewell Senior Vice President & General Counsel Apple Inc.
EFF takes on Lodsys patent controversy
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."
Apple "actively investigating" Lodsys patent infringement claims
The Guardian reported that Apple is "actively investigating" the Lodsys patent infringement claims. Beginning on May 13, several iOS developers began reporting that they had been served with patent infringement notices regarding the use of upgrade buttons and in-app purchases in their apps. The company behind the patent infringement claims turned out to be Lodsys, a patent holding company based in Texas. As our friend (and actual, real-life lawyer) Nilay Patel points out, the patent in question is US Patent #7,222,078, which Lodsys bought from inventor Dan Abelow in 2004 (Abelow remains a consultant to Lodsys and works with Webvention, the holder of some of his other patents). Currently, Lodsys is giving iOS developers 21 days to purchase licenses to use its patents, or face legal action. Understandably, many of the developers were unsure of what to make of Lodsys' claims, so they began contacting Apple's legal department seeking advice. There's no word yet on the actions Apple will take from its investigation of the Lodsys patent claim, but it's nice to see that the company is standing behind its developers (if the Guardian report can be taken at face value; no other sources have come forward to note Apple's actions). However, The Guardian states that Apple is not expected to respond to the claims until later this week. Until then, developers can read about Lodsys response to criticism of its claims here. Also FOSS Patents has put together an excellent Q&A titled "What app developers need to know about Lodsys and the in-app upgrade button patent problem." Engadget also checked in with the EFF for advice on the patent situation. If you're curious about some of Abelow's other patents, check out his site's listing of abstracts. The one labeled "Accessing, Assembling, and Using Bodies of Information" is worth a read.
Lodsys vs. Apple Devs: EFF helps us dig deeper
The developers targeted by Lodsys's patent infringement accusations last week have been in a sleepless holding pattern, awaiting response from Apple before making their next moves. Electronic Frontier Foundation (EFF) staff attorney Julie Samuels says that Apple legal is likely hard at work reviewing the patent in question, however, and should be in touch soon. Though it's very unlikely that Cupertino won't offer assistance, devs will also be able to turn to EFF for advice, where they may even be paired with pro bono patent attorneys. Besides offering this bit of good news, Samuels was able to help us dig deeper into Lodsys, and the dirty business of patent suits. To get some perspective, we reached out to Lodsys CEO Mark Small and EFF (which tends to side with developers). We have yet to hear back from Mr. Small, but EFF was kind enough to give us its take on the situation. Click through for the full rundown.
Lodsys responds to targeted iOS developers
I had a hunch my email to Mark Small of Lodsys landed on the day his inbox blew up, and according to the Lodsys blog, that's exactly what happened. The patent holding company has posted a lengthy Q&A on its blog, clarifying why it sent out requests to individual developers to license its "upgrade" technology for in-app purchases and lite-to-full upgrade functionality. According to Lodsys, Apple (as well as Google and Microsoft) already licenses the Lodsys technology for upgrading, but this licensing does not extend to third-party developers. Considering Apple only sells a handful of apps to begin with, and of those apps I'm not aware of any that offer in-app purchases (let alone a "lite" version), obviously this licensing wouldn't apply to those apps. It would, however, apply to all third-party developers like those getting notices last week. So either Apple didn't license things properly, or the onus is really on developers to come to terms with Lodsys. It's fair enough for Lodsys to offer licensing, although I have to say their attitude in the Q&A is very defensive. At times (the remark about "pixie dust" in particular) they sound as if third party licensing isn't even possible -- which is ridiculous. Of course it is. Apparently Apple either didn't do it or there's been a misunderstanding. Either way we'll keep an eye on things -- because this isn't going away, nor is Apple's App Store and iOS ecosystem.
Lodsys comments on iOS patent infringement, receives hate mail, death threats
We'd typically expect a plaintiff to remain mum with legal action pending, but in a bizarre twist, Lodsys has taken to its blog to defend its reputation -- or something. You may recall the patent holding firm's letter, sent to individual Apple iOS developers last week demanding licensing fees for a somewhat-obscure patent. Understandably, the letters and related coverage prompted a negative response from developers and supporters. Posts to the Lodsys blog may be in response to inappropriate emails received over the weekend, which include death threats and "hateful bile" sent to Mark Small, the firm's CEO. Click on through for full details.
Lodsys warns iOS devs, alleges in-app purchases infringe its patent
A handful of iOS developers received letters this week from a patent holding firm claiming that their applications that offer in-app purchases infringe on the firm's intellectual property (IP). The letter threatens legal action if developers don't license the patent within 21 days. Lodsys, the firm in question, has apparently patented a system that collects usage data and facilitates feedback between a customer and vendor, though it doesn't address financial transactions specifically. The allegedly infringing applications use Apple's in-app purchase tool to encourage users to upgrade to a paid version after downloading a free app. Though it's possible that Lodsys has sent a similar warning to Apple, only individual developers confirmed receiving the document. This makes us wonder if the company is skipping the well-armed big target in favor of the little guys. Several developers posted on Twitter after receiving the letters, including Patrick McCarron (Shanghai for iPad), James Thomson (PCalc), and Matt Braun (MASH). They're understandably unwilling to share too many details at this point -- even though Apple developed the framework, developers could still be liable. Lodsys appears to be in the business of launching suits referencing U.S. patent 7,222,078, having gone after Canon, HP, Samsung, and other giants earlier this year. As the developers that have come to light so far are independent, with limited budgets, some have reached out to Apple legal for assistance, and are awaiting response. We aren't seeing the connection between the patent and in-app purchases, though that's ultimately up to a federal court to determine, if the firm even files a lawsuit. Drama in its finest form, folks.
Lodsys patent claim threatens independent developers, what next?
Following up from this morning's flurry of news surrounding a series of legal threats to independent developers, there's this thorough and wonderful dissection of the situation by Florian Mueller, an intellectual property activist. On his blog he states, "...companies like Apple will look at these issues on a case-by-case basis and make a determination in each case how far they go with their support." As Macworld pointed out early on, Section 6.2 of the iOS Paid Apps Agreement seems to put the liability for any infringement back on app developers. But that's unlikely to happen. Still, it's a sticky situation that (once again) turns our attention to some ugly truths about our courts and our patent system. The patent in question, according to Cnet, appears to be patent number 7,222,078, an invention of Dan Abelow. Abelow is a successful inventor and in his resume he notes that his communication and customization patents are licensed and owned by Lodsys, LLC. I'm not a lawyer, but Mueller points out that the patent is broad, covering "methods and systems for gathering information from units of a commodity across a network" and in today's case (along with a previous infringement threat to Computer Logic X) is being applied to the "upgrade" button used to transition free iOS apps to their paid equivalents; it could possibly apply more broadly against the mechanism for in-app purchasing. Again, I'm no lawyer, but I'm not so sure it's that the patent is too broad, but that it is being very loosely applied here.
iOS developers hit by patent infringement complaints for using in-app purchase
This morning, several iOS developers have tweeted that they have been served with papers regarding their applications' use of in-app purchases. PCalc Lite developer James Thomson tweeted that he received a FedEx package of legal papers this morning. Thomson lives in Scotland. As Thomson clarifies, he hasn't been sued yet, but he's "been told that I am infringing their patent, they want me to license it, and I have 21 days." Chicago-based developer Patrick McCarron confirmed that he too had met with identical circumstances. Both developers have declined to name the party of the complaint, and both will be consulting with Apple, whose in-app purchase mechanism they are using, before making any further statements. Thomson told John Siracusa it was not MacroSolve, a company that has been increasing its enforcement of patents around mobile tech. In-App purchase is the mechanism by which applications can offer upgrades and extended features to customers from inside the application, creating an extended revenue flow after the initial software purchase. Many developers use this feature to provide free-to-paid pathways or to offer upgrades, subscriptions and booster packs. More as this develops. If you are an independent developer served with a similar complaint and would like to discuss it with TUAW, please contact us here. Update: MacRumors suggests this is Lodsys, based on previous claims against some pretty large printer companies and a conversation with developer Rob Gloess over a potential lawsuit surrounding an "upgrade" button in his apps. But the Lodsys patents appear to target "upgrade" mechanisms, not in-app purchases. Of course, the meaning of an in-app purchase to enable certain features or add-ons could be construed as an "upgrade." Still, we as yet have no confirmation that Lodsys is behind the current notices being sent out, but we have reached out to them for comment. Update 2: Both MacRumors and Macworld are reporting independent verification of these claims coming from Lodsys. Well, Lodsys, good luck with that. If you think Apple will roll over and let you scuttle the App Store, you haven't been reading the news for the past several years. Update 3: Nilay Patel tweets that he believes patent portfolio kingpins Intellectual Ventures may be behind this. His tweet: " The patent was assigned to Ferrara Ethereal LLC, which is an IV shell company. They must have given some enforcement rights to Lodsys." It just keeps getting better, doesn't it?
