
Judge tosses Apple motion, allows patent troll Lodsys to continue rampage - protomyth
http://arstechnica.com/tech-policy/2013/09/judge-tosses-apple-motion-allows-patent-troll-lodsys-to-continue-rampage/
======
chetanahuja
The texas east district stuff is fascinating. What if the app and software
developers start licensing their apps with a license and technical measures
explicitly excluding East Texas (or the entire state of texas, for extra
safety) from the operation of the app.

It could be enforced by some soft of geofencing at app startup that splashes a
"You're from East Texas, our app doesn't work there" type language. Will that
affect the ability of the trolls to venue shop at least (if not to bring the
suite in the first place).

Of course an even better response would be if smartphone vendors disable their
entire OS's in that district. That might be fun.

~~~
possibilistic
I like this idea a lot.

If the population living in the causative region understands the nature of
what their governing body is doing to impact and infringe upon on the rest of
the world, maybe they'll change who holds the relevant positions of power.

It would be great if we could do this to websites and technology in general as
well. Maybe we can start with this kind of campaign [1], but utilize geo-IP
targeting.

[1] [http://internetdefenseleague.org/](http://internetdefenseleague.org/)

~~~
saryant
It's a federal court, the State of Texas has nothing to do with it. These
judges are appointed by the President.

~~~
anologwintermut
With the recommendation and consultation of the representative for the
district and the two Senators for the state. Who clearly have something to do
with this. How else can you explain east texas being the venue of choice?

~~~
saryant
A friend of mine who's a patent lawyer explained it to me once. Some time back
the chief judge started putting patent cases at the top of his docket so his
district became known as a having "rocket docket" and began attracting patent
cases from across the country. A cottage industry sprung up in the area and
the rest is history.

~~~
kyrra
One suggestion was that the court was the least busy federal court around (all
the other federal courts were swamped with drug cases). So patent cases
started appearing there. Once the judges in the area became so-called
"experts" on it, more and more companies started to file their cases there.

NPR (well, technically This American Life) did a special on it a couple years
ago[0]. It's fun to listen to. It may not tell the whole story, but it at
least paints a decent picture.

[0] [http://www.thisamericanlife.org/radio-
archives/episode/441/w...](http://www.thisamericanlife.org/radio-
archives/episode/441/when-patents-attack)

------
x0054
Apple should hire a nation wide law firm to defend any and all apple
developers who are sued by Lodsys fore these patents. Instruct the lawfirm to
never settle and actively file actions on beheld of each client against
Lodsys. It's simple, once they realize that no one will settle with them, they
will go away.

Now, where on earth is that patent troll bill congress has been promising?

~~~
ajross
If Apple is "instructing" that firm, then they aren't representing their
clients' interests correctly. That sort of relationship is actually very hard
to manage in the courts, which is why it's quite rare (and usually limited to
true pro bono work by established non-profits).

~~~
fbuilesv
> If Apple is "instructing" that firm, then they aren't representing their
> clients' interests correctly.

Sorry to pick on just one phrase of your comment but I'm honestly curious. How
is the "not-representing the client's interests" thing a problem inside a
court? Is it because the other side or the court will pick on it, or is it
because it honestly does not represent a client's interests[0]?

[0] In this case, I can't imagine an app. developer not wanting help dealing
with this specific problem, but I've never been in that position.

~~~
ps4fanboy
> "Instruct the lawfirm to never settle"

~~~
fbuilesv
I automatically made the association in my mind that not only would they
defend you, they'd fund the thing. Thanks for making my misunderstanding
obvious :)

------
justinpombrio
Here is what Lodsys has to say about the creator of the patents it asserts:

> Abelow is not an officer or manager of Lodsys Group LLC, he has no interest
> in Lodsys patents, and he does not receive any revenue from the licenses
> granted by Lodsys in the patents he created.

~~~
jevinskie
So Abelow is either a fool for not getting a cut from Lodsys or he is a patent
gifting fairy.

~~~
randomfool
Neither- he already cashed out. He sold the patents years ago.

Just like you can sell stock to people completely unrelated to a company, you
can sell patents too. Patent trolls are just efficient monetization of
patents. The real problem is patent law (and judges preventing class-action to
allow more efficient judgement of the validity of patents).

------
31reasons
Microsoft -> Nathan Myhrvold (former CTO) -> Intellectual Venture (founder) ->
Lodsys -> Threatening Apple Developer

Hmmm.

~~~
rsynnott
Google and Apple also have links to Intellectual Ventures. I suspect Lodsys
would be happily going after WinPhone developers if not for the platform's
relative irrelevance; so far they've concentrated on iOS and Android
developers.

------
geuis
Why hasn't anyone addressed the probable criminal activity going on with these
handful of judges in this one district of Texas? Just because someone has the
title "judge" doesn't give them untouchable super powers. There's a giant reek
of illegality coming from that area and someone needs to look under the
covers.

My hypothesis is there's a payoff racket going on. There's a multi level
system setup with a few insiders who know how to pay off the local judges to
dismiss certain cases.

This is Texas. These people don't have some sense that big bad companies are
beating up on little old inventors trying to protect themselves with patents
as has been portrayed in the media. These people are generally small minded
Jesus followers who can't name 20 states outside of Texas and would be hard
pressed to remember the name of the Vice President.

I'm not speaking out of my ass either. I've lived in Texas. I have family
there now.

There's some serious corruption going on and it needs looking into.

~~~
dctoedt
> _Why hasn 't anyone addressed the probable criminal activity going on with
> these handful of judges in this one district of Texas? ... My hypothesis is
> there's a payoff racket going on. There's a multi level system setup with a
> few insiders who know how to pay off the local judges to dismiss certain
> cases._

Careful there. Unless you've got more than a hypothesis, what you're saying
borders on the libelous. (Not that a federal district judge would deign to
notice. The judges are public figures, so you have enhanced protection under
the First Amendment, but making a statement like this, without evidence to
support it, might qualify as the type of "malice" that can pierce the First
Amendment protection.)

The judge is constrained by long-established rules. Article III of the U.S.
Constitution limits the power of the federal courts to actual cases and
controversies. If the parties to a lawsuit settle the case, then _that case_
is moot, and with very limited exceptions, the judge is automatically stripped
of pretty much all authority in the matter. (You wouldn't want it any other
way, given that Article III judges are appointed, not elected, and for life.)

The battle isn't necessarily over. Apple might well be able to make a case on
appeal that it should be allowed to continue to litigate against Lodsys, on
grounds that the same issue is likely to come up again and be settled again,
thereby evading judicial review. That's a standard exception to the mootness
doctrine [0], and the U.S. Court of Appeals for the Federal Circuit is likely
to give it serious consideration.

Disclosure: I'm a Texan; a lawyer, also admitted in California; and a patent
litigator in a previous life.

[0]
[http://en.wikipedia.org/wiki/Mootness#Capable_of_repetition....](http://en.wikipedia.org/wiki/Mootness#Capable_of_repetition.2C_yet_evading_review)

~~~
geuis
Thanks for a well-discussed and well-thought response, which is more than the
other responses garnered. "Go back to Slashdot", "You're a biggot", etc.

I say what I think and while some people don't like what I say, I try to be as
realistic about a situation as I can be. So yes, on average Texans are among
the most devout Christians and among the worst educated in the United States.
There are more than enough public statistics to back this up.

In response to your libel statement, while I respect your background, that is
entirely not the point.

It's actually exactly the response I would expect from someone or a group who
are involved in nefarious acts and are being called out on it. Rather than
addressing the accusation and presenting evidence to the contrary, they seek
to attack and silence the investigator by throwing out accusations of libel.
It's a tactic of snakes.

Unless I am seriously misunderstanding what happened here, which is possible,
there was no mutual settlement here. Lodsys was allowed to unilaterally
settle. Most of Apple's arguments were just ignored. Quoting from the article,

"The East Texas judge overseeing Lodsys' systematic patent attack on app
developers has refused to even consider Apple's motion. Instead, he allowed
the patent-holding company to settle all its cases—and then dismissed Apple's
motion as moot. By doing so, US District Judge Rodney Gilstrap—who has
inherited the patent-happy East Texas court that once belonged to patent-troll
favorite T. John Ward—has enabled Lodsys to threaten developers for months,
and perhaps even years, to come."

This is why I stand by my question of corruption. Another commenter posted
about no one finding corruption out of normal bounds. At least someone has
been looking into it. But when you smell smoke, something's burning. These
cases keep getting the same rulings over and over, in one area of the country,
by the same judges, in an area of business that is essentially parasitic and
damaging to the very nature of my industry. It has to stop

~~~
DannyBee
"Unless I am seriously misunderstanding what happened here, which is possible,
there was no mutual settlement here. Lodsys was allowed to unilaterally
settle. Most of Apple's arguments were just ignored. "

You are seriously misunderstanding. There is a mutual settlement between
Lodsys, and the _actual defendants in the lawsuit_.

Apple is not a party to the lawsuit except as an intervenor. If the parties to
the lawsuit want to settle, that's their call. If Apple wants to sue Lodsys
for tortuous interference or something else, that's fine, it's a different
suit.

Otherwise, what would happen is you'd end up with a lawsuit that was against 7
companies, none of whom were still in the action.

Your suggestion is essentially that Apple should be able to prevent the actual
_defendants and plaintiffs_ from ending the lawsuit, because Apple has a
problem with one of the plaintiffs.

If the defendants wanted to keep fighting, Apple's motion should probably have
been granted. However, except in circumstances involving non-parties (like
class actions), once folks want to settle, intervenors can't really object, as
it should be.

Note that the article is also some really bad reporting. Apple's motion to
intervene in the lawsuit was actually granted: "SEALED MEMORANDUM OPINION and
ORDER - Apple has satisfied each of the four requirements for intervention as
a matter of right under Rule 24(a)(2). The Court finds that permissive
intervention is also appropriate under Rule 24(b). To avoid any potential
prejudice to Lodsys rights under the License Agreement such intervention shall
be and is hereby limited to the issues of license and patent exhaustion.
Apples Motion to Intervene is GRANTED-IN-PART to the extent and as specified
herein. Motions terminated: 4 MOTION to Intervene filed by Apple, Inc.. Signed
by Judge Rodney Gilstrap on 4/12/12\. (ehs, ) Modified on 4/12/2012 (ch, )."

So Apple was given a right to be heard as an intervenor, but once the
underlying jurisdiction terminated due to the settlement, they have no
standing, and all of their motions are moot.

Note that apple could have prevented this outcome. If they had indemnified app
developers by agreement (instead of disclaiming all liability), they likely
would have been impleaded, which would have made them an actual defendant.

They don't get to have their cake and eat it too.

~~~
geuis
Thanks for clearing that up. It makes what was said before make more sense
now.

------
josaka
I think these patents have expired. US 7,620,565 and 7,222,078 date back to an
August 1992 parent application, and were themselves filed in 1999, after the
20-years from priority date rule went into effect. Neither was granted patent
term extension. So they should have expired last year.

------
Iftheshoefits
How are any of these patents valid, especially in application to mobile
application technology? I'm not a lawyer; I'm seriously baffled as to how any
of them, in application to mobile "pay to upgrade" (or any other "customer
interaction") flows, aren't obvious. It's the first thing I thought of when I
first thought to write a mobile application and how to make money off of it.

------
javajosh
The threat that Lodsys represents to anyone doing technology is so large that
it would seem to make sense to band together. I'm thinking along the lines of
creating a "Patent Defense Cooperative" where members pay a certain amount
every month for the three purposes of a) patent lawsuit insurance, b) to fund
lobbying efforts to reform the patent system, and c) scrutinize a judicial
apparatus that seems biased in favor of patent trolls.

I would certainly join such an organization as an individual inventor and
technologist. This can't be a new idea. Has anyone else thought of doing this?

~~~
AnthonyMouse
>patent lawsuit insurance

Lawsuit insurance is interesting. The problem seems to be that if an insurance
company is funding the defense then they have the same incentive to pay a
settlement rather than fight that anyone else does, and that would just cause
even _more_ money to go into the pockets of trolls by giving them a deep
pocket in the form of the insurance company, exacerbating the problem (and
making the premiums unaffordable).

But let's suppose we solve that by stipulating up front that the insurance
money can't be used for a settlement. If you want the money then you have to
fight; it can only go to lawyers, not plaintiffs. _That_ would be an
interesting dynamic. (Obviously plaintiffs would hate it with the fire of a
thousand suns because it would cause all but the most blatantly liable
defendants to fight.)

> to fund lobbying efforts to reform the patent system

That sounds pretty sensible.

> scrutinize a judicial apparatus that seems biased in favor of patent trolls

I don't see this going anywhere. It is _far, far_ easier to lobby to have the
law changed by Congress after a judge does something you don't like than to
actually have the judge punished for the ruling. What you may want to do here
is to lobby for sympathetic judges to be appointed to e.g. the Eastern
District of Texas or the Federal Circuit (which has jurisdiction over patent
appeals), but that's obviously not a short-term solution because the turnover
rate isn't that high.

~~~
mcherm
> The problem seems to be that if an insurance company is funding the defense
> then they have the same incentive to pay a settlement rather than fight that
> anyone else does

Not true at all. The difference is that the individual needs to factor in the
cost of one defense (tens of thousands of dollars at a minimum - PLUS the
chance of loosing and then going out of business) versus the cost of the
settlement (perhaps a few tens of thousands of dollars). Financially, it makes
no sense to pursue the case.

The insurance pool needs to factor in the cost of ONE defense (tens of
thousands of dollars at a minimum -- PLUS the chance of loosing and then owing
a court's determination of a "reasonable cost" for licensing the patent for
all the pool's clients) versus the cost of ALL the settlements (a few tens of
thousands of dollars times how ever many clients the pool has).

A pool doesn't need to get very big before it's financially advantageous to
pursue cases you are likely to win and to settle cases you are likely to lose.
(By comparison, for individual companies, the best short-term benefit is
gained by settling in ALL cases.)

------
robomartin
Six million developers in the US iOS ecosystem?

If that's the case that is a massive number of people, particularly if you
consider employees and contractors they might work with.

Perhaps I am being a simplistic moron. To me the solution to these problems is
to make a lot of noise. A lot of it. And to do it continuously. And to do it
through all available media and channels. And not to stop until the issue is
dealt with by legislators. You want coverage by every single media outlet on a
daily basis.

This community can make something like that happen. It's isn't that difficult
if top level companies take lead. With one simple addition to their websites
the entire world would become aware of the issue that is killing innovation in
tech circles.

This is a community that has the power to do this. If this community unites
behind a common message tomorrow the entire world could start to feel the
pressure. Political leaders will have to both acknowledge and act to solve the
problem.

This is not a war that will be won one battle at a time. This is a war that
needs to be won through legislative action. There are far more people affected
by bullshit patents than most imagine. All we need is an organization under
which we could all unite and start making noise. Banners on all websites. Pop-
ups on all apps. Whatever it takes.

Would it be inconvenient to our users? Possibly. However, you have to consider
the idea that there's a huge opportunity here to educate everyone and, at the
same time, highlight the fact that a more sensible patent system would
actually improve things across the world. I am not going to do them math, but
I am sure one could easily show economic advantages which will include job
creation.

I wish I had the standing, time and resources to launch such a thing. I don't.
There are well-funded companies with more than enough resources to devote to
such an effort. To borrow from Bravehart:

Help us. Help yourselves! Now is our chance, now! If we join, we can win. If
we win, well then we'll have what none of us have ever had before; freedom to
create; freedom from the fear of trolls; the ability to innovate to the extent
of our abilities; the freedom to create whatever our minds can imagine. You
are the technology leaders and there is strength in you. Unite us. Unite us!

