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How to cost-effectively deal with Lodsys and other app patent trolls

Florian Mueller from FOSS Patents has put up a heart-breaking yet pragmatic set of recommendations for developers on how to cost-effectively deal with Lodsys and other patent trolls who target small, independent app makers. (If you're a mega corporation with billions of dollars in the war chest this obviously doesn't apply to you.) While Apple has filed a motion to intervene, there's no guarantees that it'll work, and it's unknown what, if any, support they're providing iOS developers beyond that. Google has yet to do or say anything, leaving Android developers entirely in the lurch. So...

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Google brings Pi, Apple beats them to Nortel LTE patent punch?

Some more information has come to light about the Nortel patent auction, which saw a consortium that included Apple win big, and Google get frozen out. According to Reuters, however, Google had some fun along the way:

"It became clear that they were bidding with the distance between the earth and the sun. One was the sum of a famous mathematical constant, and then when it got to $3 billion, they bid pi," the source said, adding the bid was $3.14159 billion.

"Either they were supremely confident or they were bored."

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Apple part of $4.5 billion Nortel patent acquisition, Google not

According to Reuters, a consortium of tech companies, including Apple, BlackBerry maker RIM, Microsoft, EMC, Sony, and Ericsson have won the auction to acquire Nortel's mammoth $4.5 billion dollar mobile patent portfolio. How much of that will come from Apple is currently unknown, though RIM is on the line for $770 million and Ericsson, $340 million. The companies are expected to pool the patents and use them both to protect against patent lawsuits and, of course, launch lawsuits of their own.

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Regarding Apple patents [Updated]

Just because Apple files for a patent doesn't mean we'll ever see an Apple product using or based on that patent. Just because Apple is granted a patent doesn't mean we'll ever see an Apple product using or based on that patent. It certainly doesn't mean every patent filing deserves a "...for the next iPhone!" or " the next iPad!" headline. We've been just as guilty of that at TiPb as anyone, so I'm certainly not jumping on a soapbox here. (I'm slumping against the side of it in exhaustion.)

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Apple ups the ante in Samsung "copy cat" lawsuit

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Apple has upped the stakes in their look-and-feel "copy cat" lawsuit against Samsung, taking the complaint from 38 to 63 pages, and now accusing Samsung of "products that blatantly imitate the appearance of Apple's products to capitalize on Apple's success." According to FOSS Patents, Apple goes so far as to quote the media to help set up its case:

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How to deal with a Lodsys patent claim against your app

Even though Apple has now filed a motion to intervene, Patrick T. Igoe, Esq., writing for Groklaw, gives his opinion on how developers should deal with a lodsys patent claim made against the iPhone or iPad app (or Android, or other platform).

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Nokia vs Apple lawsuit settled [Updated]

Lodsys disregards Apple, files suit against 7 iOS developers

Lodsys has decided to ignore Apple's strongly worded demand they cease harassing iOS developers, and instead decided to file suit against 7 of them, including Combay Inc. (Mega Poker Online Texas Holdem), Iconfactory (Twitterrific), Illusion Labs (Labyrinth), Shovelmate (69 Positions), Quickoffice, Richard Shinderman (Hearts), Wulven Games (Shadow Era). Says Lodsys:

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Apple tells Lodsys that developers are licensed, asks them to withdraw threats [updated]

According to The Loop, Apple has sent a letter to patent holder Lodsys, asking them to stop threatening iOS developers with patent infringement letters.

“Apple is undisputedly licensed to these patents and the App Makers are protected by that license,” wrote Bruce Sewell, Apple Senior Vice President and General Counsel.

Good for Apple. More as this develops.

UPDATE: Macworld has the full text of Apple's response letter. Here are some good bits. [Macworld]

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.

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.

UPDATE 2: FOSS Patents weighs in with Florian Mueller's analysis [FOSS Patents]

I don't mean to be negative here. I just want to make all app developers fully aware of the issues they may still face. Since Lodsys is already suing a group of large players, which is collectively even more powerful than Apple, it would be irresponsibly optimistic to assume that Apple's letter all by itself is going to make Lodsys give up. Unless Apple settles the deal with Lodsys (neither the terms of such a deal nor the mere fact might ever be announced -- Lodsys might simply never follow up on its original infringement assertions), there will be some next step in this process, and things could still get nasty. So let's be optimistic today, but let's also be cautious.

UPDATE 3: Nilay Patel offers his thoughts as well [This is my Next]

The big question now is whether Lodsys is willing to take Apple to court in order to challenge that license interpretation; Lodsys would be fairly foolish to have not considered exactly this situation when they formulated their business plan. We’ll see what happens, but for the moment things have taken a promising turn.

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EFF: Apple should defend developers in face of patent threats

The Electronic Frontier Foundation (EFF) has called on Apple to be developers' knight in shining armor in face of threats from patent trolls. As TiPb covered in our special edition iPhone Live podcast with FOSS Patent's Florian Mueller, iOS developers including James Thomson of PCalc and the Iconfactory, makers of Twitterrific have received letters from patent holding company, Lodsys, asking for licensing fees for the use of in-app purchases for in-app upgrades. The EFF sees that position as untenable:

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