Patent trolls are evil. However, we’re used to patent trolls attacking big companies like Microsoft, Google, and Apple, who themselves keep the broken patent system intact – so it’s kind of what goes around comes around; schadenfreude if you will. However, what if a patent troll carefully threatens to sue a number of smal-time iOS developers, knowing full well that these small developers cannot fight back due to the iOS developer agreement? What kind of low-point have we hit then?
Sometimes, I wish I was making this stuff up. A ‘company’ called Lodsys is threatening to sue several small-time iOS developers for infringing a patent which is, somehow, related to in-application purchases. More specifically, the patent is related to the use of an ‘upgrade’-button to upgrade a light version of an application to the full version.
“Our app, Mix & Mash, has the common model of a limited free, lite, version and a full version that contains all the features. We were told that the button that users click on to upgrade the app, or rather link to the full version on the app store was in breach of US patent no 7222078,” writes Rob Gloess of Computer LogicX, “We couldn’t believe it, the upgrade button!?!”
The developers who have received threats from Lodsys say it goes like this: they have 21 days to negotiate a licensing agreement with Lodsys for the patent in question, or else they’ll face legal action. This is remarkable not only because, well, it’s just plain evil, but also because the in-application purchasing framework is actually Apple technology; developers just add it to their code.
The iOS developer agreement states that Apple retains ownership of the In App Purchase API, while also stating that iOS developers are forbidden from “[entering] into any settlement or like agreement with a third party that affects Apple’s rights or binds Apple in any way, without the prior written consent of Apple”. In other words, all the affected iOS developers can do is forward the legal documents to Apple, and hope Apple is going to do something. They can’t negotiate a license agreement with Lodsys because the iOS developer agreement forbids it. They’re between a rock and a hard place, as Adam Engst explains.
“So what it comes down to is that Thomson, McCarron, and other iOS developers are being threatened by Lodsys for using Apple intellectual property under license from Apple, in such a fashion that they cannot even settle without violating the iOS Developer Program License Agreement,” he explains, “They can’t legally agree that Apple’s In App Purchase API violates Lodsys’s patents, and no matter what, there’s no way Apple would give permission for such a settlement due to the chilling effect it would have on iOS development in general.”
So, the only thing the affected iOS developers can do at this point is wait and hope Apple is going to step in. Lodsys’ strategy, therefore, seems to be to use these small developers to force Apple to settle quickly, since letting this situation go on for too long will have a negative effect on the iOS ecosystem. It’s decidedly clever.
It’s funny, though; what Lodsys is doing is no different from Microsoft abusing the patent system to maffia phone manufacturers to smear Android, or from Apple abusing the patent system because they can’t compete against Android on merit. However, when Apple and Microsoft do it, the mainstream press calls it a patent suit – whereas Lodsys’ actions are somehow labelled as extortion. The fact of the matter is that they’re all using the exact same patent system and playing by the exact same rules. If what Lodsys is doing is extortion, than whatever Apple and Microsoft are doing is extortion as well.
I really do feel for the iOS developers. They are the real victims here. We’re looking at what is most likely a new low, caused by a system advocated by governments and companies – large and small – the world over. If this hurts the iOS ecosystem, and therefore, Apple, they have nobody to blame but themselves.
Anywho, neither Apple nor Lodsys have replied to requests for comments, however, the original inventor behind Lodsys’ patents, Dan Abelow, was unaware of his patents being used by Lodsys in this way. He had sold them to the patent troll years ago, and he was surprised about the news. In other words, he has nothing to do with Lodsys – I thought this was important to note.