App Developers: Lodsys is Back. It's Time to Beat this Troll.
It's been nearly two years since we first reported about Lodsys, the patent troll who targeted app developers. You might remember that Lodsys had actually filed lawsuits against some app developers in Texas; that case was (and is) slowly moving forward. We hadn't heard anything else from Lodsys in the meantime and assumed (foolishly, perhaps) that it was waiting to see what the judge said. This week, that all changed. It appears that Lodsys sued at least ten more app developers—many smaller players along with larger ones such as Walt Disney.
First, a quick refresher on Lodsys: Lodsys claims that typical "click to upgrade" functionality found in apps infringes two patents that it owns. Lodsys starting by targeting iOS and Android app developers, sending letters demanding that those developers pay Lodsys a license fee (and providing proposed licenses like this one). Lodsys' claims on their face were troubling, but the story was more complicated. For starters, the technology that Lodsys claimed infringes its patents is provided to the app developers by Apple and Google. That's right, the developers don't even create this technology themselves. In other words, when they use this technology, they are taking on risks that they never could have contemplated. After countless app developers received these threatening letters, Lodsys went ahead and filed a lawsuit against 11 app developers in federal court in Texas. That case is still pending.
Now, to both Apple and Google's credit, each got involved to defend its app developers. Apple filed a Motion to Intervene in the lawsuit, arguing that the law (and its license covering the Lodsys patents) allows it to provide its app developers the technology at issue free from claims of infringement. The Court granted Apple's motion to appear in the case, which is good news, but it could still take years before there is a final ruling on its legal claims. (Note: a ruling in Apple’s favor would also bode well for Android developers, as Google could presumably make the same legal argument.)
Google took action of its own, filing a Request for Inter Partes Reexamination with the Patent and Trademark Office on the two patents Lodsys is asserting against app developers. A reexamination is a proceeding before the PTO, brought by a third party to challenge the validity of a patent. The PTO agreed to consider some of Google’s arguments, but it will likely take some time (though not as long as litigation) to get a decision—and then there is no guarantee that the patents will be fully invalidated. Perhaps more likely, the claims will be narrowed. If that happens, they remaining claims may or may not cover the in-app payment and upgrade functionality that Lodsys claims they currently do.
We've been watching these legal developments closely, and all seemed quiet on the Lodsys front. But, as we said above, this week, that all changed. Lodsys is back at it, and this time, again, it's doing more than merely threatening. It's actually filing lawsuits. These lawsuits against app developers are just part of a dangerous recent trend of patent trolls going after end-users. For example, a shadowy collection of shell companies has been blanketing the nation with letters demanding that companies pay them $1000 per employee for the privilege of using standard office technology like scanners and email. And another patent troll is targeting the podcasting community.
So what do you do if you're an app developer? First, you can check out the FAQs we provided when Lodsys first came on the scene. Second, you can reach out to the Application Developers Alliance (you should email email@example.com), an important group and ally in this fight that's working hard to organize app developers facing the Lodsys threat. Finally, continue watching this space for more updates; we'll continue to post news as it becomes available.
If you'd like help finding a lawyer, you can start by emailing EFF at firstname.lastname@example.org. (If you’re a lawyer who is willing to help out, please email email@example.com with your contact information or the contact information for your firm, and the states in which you are licensed to practice law with the subject line "Lodsys Attorney Addition.")