Lodsys in a Panic to Keep Apple Out of Suit(groklaw.net)
groklaw.net
Lodsys in a Panic to Keep Apple Out of Suit
http://www.groklaw.net/article.php?story=20110828073533134
28 comments
Is that really what they're doing though?
The reason I ask is that their attempt to get discovery on the Apple license suggests that they don't know what the license covered (remember it was taken out not with Lodsys but with a previous patent holder).
If that's genuinely the position then they don't know what sort of case they've got. At the very best it would seem that they are hoping that there is enough wiggle room in the license to give them something but the request points to this being, at least to some degree, a punt as much as a clever legal move.
But to me what this really looks like is what we suspected it was all along - a legal shakedown of small, vulnerable developers without the finances or expertise to fight it.
Lodsys may or may not have a water tight legal case but from what we're seeing here they're certainly not geared up for a hardcore legal fight rooted in a solid basic case. Instead what they're doing seems to be throwing everything they can at it regardless of merit and hoping that something sticks.
In some situations that's a perfectly reasonable strategy - essentially if you're trying just to delay things and rack up costs for the other side to make settling look appealing - but against Apple who have enough money to fight this from pocket change and a vested interest not just in winning but in crushing you to put anyone else off the idea of ever trying this sort of thing again?
The reason I ask is that their attempt to get discovery on the Apple license suggests that they don't know what the license covered (remember it was taken out not with Lodsys but with a previous patent holder).
If that's genuinely the position then they don't know what sort of case they've got. At the very best it would seem that they are hoping that there is enough wiggle room in the license to give them something but the request points to this being, at least to some degree, a punt as much as a clever legal move.
But to me what this really looks like is what we suspected it was all along - a legal shakedown of small, vulnerable developers without the finances or expertise to fight it.
Lodsys may or may not have a water tight legal case but from what we're seeing here they're certainly not geared up for a hardcore legal fight rooted in a solid basic case. Instead what they're doing seems to be throwing everything they can at it regardless of merit and hoping that something sticks.
In some situations that's a perfectly reasonable strategy - essentially if you're trying just to delay things and rack up costs for the other side to make settling look appealing - but against Apple who have enough money to fight this from pocket change and a vested interest not just in winning but in crushing you to put anyone else off the idea of ever trying this sort of thing again?
Well obviously I’m speculating out of my ASSets, but legal discovery goes beyond “show us the contract.” They get to grill the lawyers and managers who drafted the contracts, review emails written about the contracts, and so forth. they ought to get a look at just about everything that might come up as evidence in a suit.
So I don’t know for sure whether they know what’s in the contract, but I would not say that just because they’re asking for discovery, therefore they have no idea what the contract says.
So I don’t know for sure whether they know what’s in the contract, but I would not say that just because they’re asking for discovery, therefore they have no idea what the contract says.
That's true but at the very least it suggests a weakness in what they have in place at the moment.
And what's written in the contract certainly can't be contradicted by anything before it. At best they're going to be able to fill in the gaps.
EDIT: I am also not a lawyer but this seems to be relevant: http://en.wikipedia.org/wiki/Parol_evidence_rule
Essentially where something exists in the contract in writing it can't be amended or contradicted by any other source.
What other material can be used for is to prove / disprove validity, provide clarification around ambiguity and so on.
That would seem to suggest that Lodsys at the very least aren't confident that the contract as written completely supports their case.
And what's written in the contract certainly can't be contradicted by anything before it. At best they're going to be able to fill in the gaps.
EDIT: I am also not a lawyer but this seems to be relevant: http://en.wikipedia.org/wiki/Parol_evidence_rule
Essentially where something exists in the contract in writing it can't be amended or contradicted by any other source.
What other material can be used for is to prove / disprove validity, provide clarification around ambiguity and so on.
That would seem to suggest that Lodsys at the very least aren't confident that the contract as written completely supports their case.
I'm having a hard time understanding how the lawyers who negotiated Apple's license never raised/confronted this issue.
I imagine they did, but Lodsys hope to convince a judge that the wording chosen doesn’t say what everyone else on the entire planet thinks it says.
Why else would Lodsys be working so hard to keep Apple out of the lawsuits? They don’t want to have this debate with Apple’s lawyers, they want to have this debate with whomever the small ISVs can afford. If this lawsuit was in “good faith,” they’d welcome Apple to the party. If they had the law on their side, Apple would have no choice other than allow their ISVs to be raped or pay Lodsys a shakedown fee to stop suing the ISVs.
Why else would Lodsys be working so hard to keep Apple out of the lawsuits? They don’t want to have this debate with Apple’s lawyers, they want to have this debate with whomever the small ISVs can afford. If this lawsuit was in “good faith,” they’d welcome Apple to the party. If they had the law on their side, Apple would have no choice other than allow their ISVs to be raped or pay Lodsys a shakedown fee to stop suing the ISVs.
From what I can tell, Apple didn't get its license from Lodsys. It's possible that Lodsys doesn't even know what Apple's license consists of, and thus the requests for discovery. I think it looks like Webvention screwed Lodsys over, selling them a patent without informing them that all the good targets have been licensed already. When this hit everyone was wondering why Apple wouldn't get coverage for their developers locked down. It seems they did, but no one told Lodsys.
No they didn’t get their license from Apple, but that doesn’t mean Webvention screwed Lodsys over. I suspect that Lodsys have an odious but well-understood plan to troll companies that are thought to infringe, but saw this as a fairly low-risk opportunity to try for a big windfall. I think they’re hoping for some hush money from Apple, but if they don’t get it they’ll go after smaller fish that haven’t played the shakedown game with Intellectual Ventures.
For example, if someone gives away free software for some kind of Open Source store on Linux with whatever it is they think infringes their patents, they’ll go after all the developers who use it, and there’ll be no umbrella licensee to intervene.
For example, if someone gives away free software for some kind of Open Source store on Linux with whatever it is they think infringes their patents, they’ll go after all the developers who use it, and there’ll be no umbrella licensee to intervene.
Very little in this sort of thing surprises me, but this passed the threshold: "Lodsys next argues that it should be granted the right to conduct discovery on the Apple license in order to establish that the license doesn't grant whatever rights Apple claims." Apparently, Lodsys doesn't even know what license has been extended to Apple. Which is slightly less silly than I'm making it sound because it was the previous patent owner that did it, but still.... does seem a rather disadvantageous position to be trying to prosecute litigation from, almost to the point of bad faith if not actually over the line.
That's spectacular.
No wonder they don't want to defend it against Apple, aside from Apple's financial and legal might, they seem to have no idea what they might actually be defending against.
"Your license doesn't say that! At least we think it doesn't, can you just let us have a look at it to check?"
No wonder they don't want to defend it against Apple, aside from Apple's financial and legal might, they seem to have no idea what they might actually be defending against.
"Your license doesn't say that! At least we think it doesn't, can you just let us have a look at it to check?"
It's like Microsoft/SCO all over again, only this time it's Myhrvold/Lodsys.
Was there ever any shred of evidence that the actions of SCO were influenced or directed by MS? I'm legitimately curious.
Mostly circumstantial, but I think the duck test passes:
http://en.wikipedia.org/wiki/SCO-Linux_controversies#Microso...
http://en.wikipedia.org/wiki/SCO-Linux_controversies#Microso...
It kind of funny when you think about it: Novell sold DR-DOS to Caldera specifically so Caldera could sue Microsoft (Novell didn't want to do it themselves for PR reasons). Caldera would reach a settlement with MS in 2000 and, later that same year, would use some of those funds to help finance their purchase of SCO.
It seems to me that, in a limited manner, Novell reaped what it sowed.
It seems to me that, in a limited manner, Novell reaped what it sowed.
Can we start referring to Lodsys as Lodsys/Intellectual Ventures? IV makes money off these suits as well...
But Apple from IV...
http://business.timesonline.co.uk/tol/business/entrepreneur/...
"Now he has attracted more than $5 billion (£3.4 billion) from Intel, Sony, Apple, Nokia and Microsoft to fund cutting edge research into green power and technologies for the developing world."
Should we start referring to it as Lodsys/Apple?
http://business.timesonline.co.uk/tol/business/entrepreneur/...
"Now he has attracted more than $5 billion (£3.4 billion) from Intel, Sony, Apple, Nokia and Microsoft to fund cutting edge research into green power and technologies for the developing world."
Should we start referring to it as Lodsys/Apple?
To be fair, aren't those companies just victims of IV's patent shakedowns rather than IV co-conspirators?
It's fair to say they're both. By these companies and institutions backing down, they exacerbated the problem.
IV is like Microsoft's (and IBM's perhaps) frankenstein.
I've seen the current software patent debacle compared to a nuclear standoff. Reading this article made me think of another analogy: Gangs. How long until independent developers will need to either join the Bloods or the Crips in order to fall under the umbrella of their protection? Unless you are a paid-up member of the Apple or Google development programs, you are a potential victim of random drive-by-lawsuits. Even if you are a member you may get shot at, but the gang will retaliate on your behalf.
This isn't quite the point of the article but holy crap is this an awful patent:
“[a] communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location"
What on earth could that NOT mean?
“[a] communication element associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location"
What on earth could that NOT mean?
It couldn't mean when each unit communicates independently to the central location. The app uses the app store independently from the upgrades to purchase upgrades. Instead of talking to the upgrade locally and "carrying the results of the two-way interaction" to the app store.
That's my opinion on the legalese because Apple shows screenshots of the app store in the middle of the communication process.
That's my opinion on the legalese because Apple shows screenshots of the app store in the middle of the communication process.
I'm confused on this -- Is Webvention another IV spinoff like Lodsys, or are they an actual independent patent holding company?
Webvention (which is really one guy Dan Abelow) was the company which originally filed the patent. IV/Lodsys bought the rights to the patent from them (him). Note this is how IV gets their patents - they purchase them from existing patent holders for the most part.
The confusion seems to be that Apple actually licensed the patent from Webvention, not Lodsys and that license would transfer with the sale of the patent rights. From this filing it looks like Lodsys hasn't read the existing licenses which transferred over, which is a bit absurd.
The confusion seems to be that Apple actually licensed the patent from Webvention, not Lodsys and that license would transfer with the sale of the patent rights. From this filing it looks like Lodsys hasn't read the existing licenses which transferred over, which is a bit absurd.
Thanks! I know that IV buys patents up and then doles them out to litigation-only spinoffs, but I didn't know how far down the line Webvention was.
Has it been confirmed yet that Lodsys is a trolling front for Intellectual Ventures?
Lodsys shares an "office" (a nondescript door in a corridor of empty rooms) with one of Intellectual Ventures' known shell companies. I'm sure it's just a coincidence...
I wasn't trying to express skepticism - the whole thing smells pretty bad. I was just looking forward to seeing the nail in that coffin :)
It’s a clear case of “Gotcha, you neglected to get wording protecting your developers, so even though we all knew what you thought you were licensing, we’ll try to screw you just because it doesn’t cost us that much to try."