FAQ for Lodsys targets
As Rory Kehllan-Jones correctly noted in his note of the same name, patent trolls are a profitable American business. And Lodsys is one of the most prominent representatives of this cohort. She is known for her numerous lawsuits against various IT companies (even there was a story with Kaspersky Lab), so it’s not surprising that the American patent troll fund paid a lot of attention to patent trolls in general (and Lodsys in particular), which even prepared special explanations for those who can be under the gun at Lodsys. And although it seems that Lodsys is already a thing of the past, this reference material from EFF may be useful for familiarization, as it allows you to trace the motives, tactics of the patent troll and can help orient in their actions in the event of a similar situation.
A letter with requirements of 1 is not a claim. In other words, if you received only a letter, Lodsys does not sue you, so you are not required to provide a response. The letter serves as a way to “draw your attention” to the Lodsys patents - this means that if you find a violation of the rights to a patent, the court can also determine that such a violation was “intentional”. An intentional violation (as opposed to an unintentional violation) can lead to an increase in the amount of damages. It should be thought that this letter starts ticking the “hours of damages”, which will finally stop in court.
Lodsys claims my use of in-app purchases and upgrade opportunities violate their patents, but Apple, Google or another third party provided me with this technology. Can I just report this to Lodsys?
You can, but it will not help. Lodsys claims that Google and Apple have already licensed its patents, which Google and Apple seem to have agreed with their former owner, Intellectual Ventures. Unfortunately, the use of technology opens up to you the potential liability for a violation. The good news is that Apple and Google licenses covering Lodsys patents may also cover you using them. The bad news is that this question is currently pending before the court and may not have a definite answer for years.
Unlike many agreements, agreements for developers and Apple and Google do not protect their developers from lawsuits regarding the intellectual property they provide. This (unfortunately, in our opinion) is the price of placing your application on the Apple App Store or Android Market 2 . We wrote earlier that this irrational distribution of the load has detrimental consequences, namely causing harm to developers and consumers who will face fewer applications and innovations.
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Apple filed a petition 3 for filing a lawsuit in Texas, arguing that the law (and its license covering Lodsys patents) allowed it to provide technology to its developers without further claims of copyright infringement. The question of whether Apple will be able to implement this legal argument (for example, to enter the process) is currently pending in court, and we hope to learn about the decision soon. If the court allows Apple to enter the process, it will take years before a final decision is made on its legal claims. 4 (Note: the decision in favor of Apple will also suggest a successful outcome for Android developers, if Google presumably takes advantage of the same legal argument).
In August, Google filed a request for re-examination of patentability in a dispute between parties in the United States Patent and Trademark Office for two Lodsys patents filed against application developers. Re-examination of patentability is a procedure conducted by the Office, initiated by a third party, challenging the validity of the patent. Re-examinations are a process that is much cheaper and often much faster than a lawsuit in federal court. The agency agreed to consider some of Google’s arguments, but Lodsys will have the opportunity to defend itself. It looks like at least a year (not as long as the lawsuit) will take place before receiving a decision from the Office - and then it is unlikely that the patents will be completely revoked. Rather, the claims will be narrowed down. If this happens, the remaining claims will or may not be able to cover payments within applications and functional upgrades, as is the case now with Lodsys claims.
If you have already acquired a license or entered into an agreement, the provisions of such documents apply. Therefore, if patent claims are changed, your obligations under the agreement or license will not be changed (unless the license provides that it will change if claims change).
The court can come to both decisions. Since the case is pending in the Eastern District of Texas, it is unlikely that it will be stopped (this district is notorious for deciding not to stop such cases, which is one of the reasons why plaintiffs like Lodsys file claims here).
As long as your application is available for sale in the United States (or sold in the United States), Lodsys may sue you for violating its US patents.
Again, it depends on your license terms. One license option offered by Lodsys requires you to pay Lodsys (in accordance with the terms of the agreement) for all uses of the technology contained in its four patents, and Lodsys on its part relieves all claims based on such patents.
You can start by sending an EFF message to info@eff.org . (If you are a lawyer who wants to help, please write to info@eff.org with your contact information or contact information of your company and the states in which you are admitted to legal practice, with the subject of the letter “Lodsys Attorney Addition”. )
You can also transfer funds to the Appsterdam Legal Fund, information about which you can find here .
Finally, the law allows you to represent yourself in court on your own. However, we do not recommend this to you, especially with regard to a patent dispute (which usually is a complex litigation).
Your lawyer needs to answer this question. But, unfortunately, it does not matter. The patent troll business model often follows whether the truly “indisputable patents” underlying the patents to be protected or the defendant really infringes the patents. Instead, the patent troll is trying to get an agreement (or license) that is cheaper than the lawsuit itself would cost, leaving many potential defendants to simply settle the case.
Yes, definitely! The only way to fight back is to unite the work of application developers. You can also get involved in the activities of Appsterdam, the application development team that created the legal foundation to help developers. And besides all the rest, help EFF and other digital rights organizations in overcoming the patent system in the direction of innovation. Go to our homepage for more information about this.
The only option to be sure that Lodsys will not send you such a letter is not to use upgrades or payments within applications. Unfortunately, for many this solution is not suitable. For clarity, simply using your upgrades or payments within applications does not mean that Lodsys will target you.
Not. Patent holders may sue for damages incurred during the entire term of the patent and six years after such a period expires. You can choose to ignore the letter from Lodsys for other reasons, but this should not be due to their expiration soon.
Note per.
I received an email from Lodsys requiring my response within 21 days. Do I have to answer?
A letter with requirements of 1 is not a claim. In other words, if you received only a letter, Lodsys does not sue you, so you are not required to provide a response. The letter serves as a way to “draw your attention” to the Lodsys patents - this means that if you find a violation of the rights to a patent, the court can also determine that such a violation was “intentional”. An intentional violation (as opposed to an unintentional violation) can lead to an increase in the amount of damages. It should be thought that this letter starts ticking the “hours of damages”, which will finally stop in court.
Lodsys claims my use of in-app purchases and upgrade opportunities violate their patents, but Apple, Google or another third party provided me with this technology. Can I just report this to Lodsys?
You can, but it will not help. Lodsys claims that Google and Apple have already licensed its patents, which Google and Apple seem to have agreed with their former owner, Intellectual Ventures. Unfortunately, the use of technology opens up to you the potential liability for a violation. The good news is that Apple and Google licenses covering Lodsys patents may also cover you using them. The bad news is that this question is currently pending before the court and may not have a definite answer for years.
Why don't Apple or Google pay for my protection?
Unlike many agreements, agreements for developers and Apple and Google do not protect their developers from lawsuits regarding the intellectual property they provide. This (unfortunately, in our opinion) is the price of placing your application on the Apple App Store or Android Market 2 . We wrote earlier that this irrational distribution of the load has detrimental consequences, namely causing harm to developers and consumers who will face fewer applications and innovations.
')
What is Apple’s petition for joining the process?
Apple filed a petition 3 for filing a lawsuit in Texas, arguing that the law (and its license covering Lodsys patents) allowed it to provide technology to its developers without further claims of copyright infringement. The question of whether Apple will be able to implement this legal argument (for example, to enter the process) is currently pending in court, and we hope to learn about the decision soon. If the court allows Apple to enter the process, it will take years before a final decision is made on its legal claims. 4 (Note: the decision in favor of Apple will also suggest a successful outcome for Android developers, if Google presumably takes advantage of the same legal argument).
What is Google’s request for a re-examination of patentability?
In August, Google filed a request for re-examination of patentability in a dispute between parties in the United States Patent and Trademark Office for two Lodsys patents filed against application developers. Re-examination of patentability is a procedure conducted by the Office, initiated by a third party, challenging the validity of the patent. Re-examinations are a process that is much cheaper and often much faster than a lawsuit in federal court. The agency agreed to consider some of Google’s arguments, but Lodsys will have the opportunity to defend itself. It looks like at least a year (not as long as the lawsuit) will take place before receiving a decision from the Office - and then it is unlikely that the patents will be completely revoked. Rather, the claims will be narrowed down. If this happens, the remaining claims will or may not be able to cover payments within applications and functional upgrades, as is the case now with Lodsys claims.
What if Google-initiated re-examination changes the status of patents after I have already acquired a license or entered into an agreement with Lodsys?
If you have already acquired a license or entered into an agreement, the provisions of such documents apply. Therefore, if patent claims are changed, your obligations under the agreement or license will not be changed (unless the license provides that it will change if claims change).
Will Google-initiated re-examination of lawsuits against application developers stop?
The court can come to both decisions. Since the case is pending in the Eastern District of Texas, it is unlikely that it will be stopped (this district is notorious for deciding not to stop such cases, which is one of the reasons why plaintiffs like Lodsys file claims here).
I am abroad. Can Lodsys sue me?
As long as your application is available for sale in the United States (or sold in the United States), Lodsys may sue you for violating its US patents.
If I sign the license with Lodsys, can I be their target again if I release a new and different application?
Again, it depends on your license terms. One license option offered by Lodsys requires you to pay Lodsys (in accordance with the terms of the agreement) for all uses of the technology contained in its four patents, and Lodsys on its part relieves all claims based on such patents.
Where can I find a lawyer?
You can start by sending an EFF message to info@eff.org . (If you are a lawyer who wants to help, please write to info@eff.org with your contact information or contact information of your company and the states in which you are admitted to legal practice, with the subject of the letter “Lodsys Attorney Addition”. )
You can also transfer funds to the Appsterdam Legal Fund, information about which you can find here .
Finally, the law allows you to represent yourself in court on your own. However, we do not recommend this to you, especially with regard to a patent dispute (which usually is a complex litigation).
Do developers who use payments within applications or upgrades violate Lodsys patents?
Your lawyer needs to answer this question. But, unfortunately, it does not matter. The patent troll business model often follows whether the truly “indisputable patents” underlying the patents to be protected or the defendant really infringes the patents. Instead, the patent troll is trying to get an agreement (or license) that is cheaper than the lawsuit itself would cost, leaving many potential defendants to simply settle the case.
Should application developers come together to fight Lodsys?
Yes, definitely! The only way to fight back is to unite the work of application developers. You can also get involved in the activities of Appsterdam, the application development team that created the legal foundation to help developers. And besides all the rest, help EFF and other digital rights organizations in overcoming the patent system in the direction of innovation. Go to our homepage for more information about this.
I am about the first publication of the application. What should I do to be sure that Lodsys will not send me a letter?
The only option to be sure that Lodsys will not send you such a letter is not to use upgrades or payments within applications. Unfortunately, for many this solution is not suitable. For clarity, simply using your upgrades or payments within applications does not mean that Lodsys will target you.
Lodsys patents expire next year. Should I wait for this to happen?
Not. Patent holders may sue for damages incurred during the entire term of the patent and six years after such a period expires. You can choose to ignore the letter from Lodsys for other reasons, but this should not be due to their expiration soon.
Note per.
- ↑ This refers to letters that Lodsys sends out to those whom it regards as violators of its patents ( 908 , 834 , 078, and 565 ). You can read more about such a letter that GroupCamp received, for example, here .
- ↑ Apparently, this material was prepared by EFF staff at the time when Google Play bore its previous name.
- ↑ You can read more about the petition here .
- ↑ The court eventually refused Apple to grant the petition, including because some companies identified by Apple in their petition have already settled controversial issues with Lodsys, having signed the relevant agreements.
Source: https://habr.com/ru/post/300684/
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