Apple has responded to Lodsys suing individual developers of applications on the app store by filing a motion to intervene in the lawsuits being filed in Eastern Texas. According to the filing reports available at FOSS Patents, Apple is banking on the theory that since they paid for the rights to use the patents, they get to license the right to use that in their SDKs. Otherwise, Lodsys would get paid twice for their patents, which would violate exhaustion and first sale doctrines. They are also claiming that the developers do not have the financial means to fight the lawsuits to their conclusion, which is cause for Florian Mueller to figure that Apple is paying the legal fees for these suits.
As of this writing, Google has not made a statement regarding this situation. At least one developer, Illusion Labs, has an Android game affected by this litigation.
Lodsys is also under pressure from ForeSee Results Inc., who have fired a declaratory judgement action against Lodsys on behalf of their clients including Adidas and Best Buy, claiming that all four of their patents are invalid. Notable about this is that it was filed in Illinois, which ForeSee is claiming has jurisdiction due to the fact that Lodsys CEO Mark Small – who ForeSee is claiming is Lodsys’ only employee – operates out of and lives in Illinois, despite formally doing business out of East Texas. East Texas is anecdotally known to be extremely friendly towards patent holders in these types of cases.
Lodsys has continued to threaten developers with litigation. According to Florian Mueller, the most recent letter he has seen was dated June 1st.
Analysis: I find it hard to believe that a court wouldn’t look at these facts and determine that they’re being played for fools:
1) Lodsys purchased patents from Intellectual Ventures (who acquired Dan Abelow’s initial patents) and immediately started sending out infringement notifications. (source)
2) Lodsys specifically targeted smaller developers, giving credence to the theory that they were fighting people who could not fight back.
3) Lodsys, despite being almost entirely based out of Illinois, claims that it works out of Texas. However, they do no other business other than patent licensing, in an area of the country where patent litigation notoriously goes in favour of patent holders.
How can any judge see these circumstances and not believe that they’re being used? It’s a farce, and it makes a mockery of our legal system. It also makes a mockery of America’s patent ownership laws, but those have been derided for so long that it would seem unsporting to kick them further.
Florian Mueller believes that the infringement case that Lodsys is going to argue has the potential to work. However, he also notes that maybe it’s time for them to throw in the towel and back off a bit, due to the sheer legal capitol of the companies involved in their suits; Apple, Best Buy, Adidas and potentially Google at the same time would be too much for any company, much less a one-man outfit who’s playing fast and loose with the rules. I agree with him 100%. They’re rolling the dice BIG time here.