

Lodsys in a Panic to Keep Apple Out of Suit - grellas
http://www.groklaw.net/article.php?story=20110828073533134

======
raganwald
Lodsys is not “confused on the law.” Lodsys’s _argument_ is confused on the
law, Lodsys the entity is perfectly aware of the law and is attempting to
“exploit” the law and the system.

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."

~~~
Tyrannosaurs
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?

~~~
raganwald
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.

~~~
Tyrannosaurs
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.

------
jerf
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.

~~~
rhizome
It's like Microsoft/SCO all over again, only this time it's Myhrvold/Lodsys.

~~~
josephcooney
Was there ever any shred of evidence that the actions of SCO were influenced
or directed by MS? I'm legitimately curious.

~~~
rhizome
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#Microsoft_funding_of_SCO_controversy)

~~~
RexRollman
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.

------
lukejduncan
Can we start referring to Lodsys as Lodsys/Intellectual Ventures? IV makes
money off these suits as well...

~~~
kenjackson
But Apple from IV...

[http://business.timesonline.co.uk/tol/business/entrepreneur/...](http://business.timesonline.co.uk/tol/business/entrepreneur/article7127608.ece)

"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?

~~~
wes-exp
To be fair, aren't those companies just victims of IV's patent shakedowns
rather than IV co-conspirators?

~~~
technoslut
It's fair to say they're both. By these companies and institutions backing
down, they exacerbated the problem.

------
tritchey
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.

------
collint
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?

~~~
SmilingRob
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.

------
ja2ke
I'm confused on this -- Is Webvention another IV spinoff like Lodsys, or are
they an actual independent patent holding company?

~~~
mikeryan
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.

~~~
ja2ke
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.

------
lawnchair_larry
Has it been confirmed yet that Lodsys is a trolling front for Intellectual
Ventures?

~~~
schrototo
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...

~~~
lawnchair_larry
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 :)

