1. Nothing in the letter commits Apple to defend the developers or to hold them harmless. Legally, Apple does not have to do this. One can only hope that its self-interest in protecting its app-store ecosystem will be enough to cause it to do what is right. For now, Apple is saying only that it will fully defend its "license rights." One can read more into this than is stated but that is all that is stated (of course, Apple's throwing its weight behind developers even at this level is no small thing).
2. The letter does not quote the license agreement in any way. Normally, if there is something definitive in such a document, it is put front and center in a letter of this type. This could mean that the license language is not as definitive as the tone of this letter might suggest. Only time, and a detailed review of the license language itself, will tell on this point.
3. It is plain that Apple wants to do the right thing for its developers. Yet the situation is trickier than that. As of now, Apple has no legal obligation to defend or hold them harmless, and that step is an order of magnitude greater than that of saying it will merely defend its license rights - and hence the hedging in the letter.
If the goal of the patent system is to promote innovation, then this case is Exhibit A for how it is failing. Thousands of patents are gathered up in a portfolio held by an IV affiliate and licensed in bulk ("monetized") to big players such as Apple, Microsoft, Google, etc., who in turn believe that they have clear rights to build systems around them. But the patents are "monetized" again to lesser players with shadowy relations to the original IV group, who in their turn try to "monetize" them further by attempting to double-dip with the original licensees based on limitations in the original licensing language. At each step, threats of lawsuits abound and nowhere can one find even one example of a patent developed by a company for its own innovative uses. Instead, we have the equivalent of shadowy trafficking in intangibles that are now being used, not to encourage innovation, but to attack the very developers who are trying to innovate. Positively Kafkaesque.
Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple’s license rights.
The letter explicitly states they think their rights include being able to let developers use the technology.
Because Lodsys’s threats are based on the purchase or use of Apple products and services licensed under the Agreement, and because those Apple products and services, under the reading articulated in your letters, entirely or substantially embody each of Lodsys’s patents, Lodsys’s threatened claims are barred by the doctrines of patent exhaustion and first sale.
At this point, isn't Apple saying there is nothing to hold developers blamess for?
This seems pretty clear (if not within full legalese) that Apple will go after Lodsys if they don't retract the letters.
Bigger question for me (as a legal noob): What is Apple's recourse? Is it to sue Lodsys for breach of contract? Would a cease and desist request be part of that?
You might want to consider hitting the return key a few more times with posts of that length though. :)
I'd have thought they'd be exceedingly rare in cases like this given the open ended liability that could result, certainly as part of an opening gambit.
If I were to speculate, the likely issue is whether the licensing for Apple's products (iPad, iPhone, iPad) effectively covers the downstream development of software intended to run on those devices. Lodsys would be arguing that the license does not extend to what the app developers do; Apple is saying in this letter it does and that Lodsys is misusing its patents if it claims otherwise (such misuse, if legally tenable, constituting grounds to invalidate the patents).
As to clawback, that would be highly unusual and would almost certainly not be in a license of this type made to major players.
That's a very good thing to hear. And extremely definitive. I'd imagine devs are breathing a lot easier now.
It would be but for the distinction between "undisputedly" and "undisputably". All this says is that it hasn't been disputed, not that it can't be.
I assumed it would, but if I'm reading MedImmune v. Genentech correctly then it doesn't even make it harder for Apple to challenge.
What had me annoyed now has me interested.
Legal cases are like chess - a series of small moves rather than one big bang and it's done.
Lodsys will undoubtedly have hoped that Apple wouldn't involve itself but it would seem unlikely they're going to be put off by a single letter. The very earliest I'd expect them to drop it would be the point at which they got a court summons from Apple or the point at which a settlement was reached (still I'm guessing the most likely outcome).
The next move will likely be an open letter from Lodsys disputing Apple's view and reasserting their claim which will put the ball back in Apple's court but I'd also guess that alongside the public discussions there will likely be private ones going on to which we'll obviously not be privy.
Though nieve the documentation did seem sincere.
App developers can breath easy and know that this non-technical understanding regarding their patents and the use of a fully licensed API is being incorrectly interpreted by Lodsys.
Apple certainly can claim PR victory. They are always so cool under pressure. Each time some sort of scandal comes up they hol up, think about it, gage interest and consumer intent, then act accordingly.
No surprise he became a patent troll...
I find it interesting to see Apple invoke the First Sale Doctrine given the restrictions which it places upon its hardware (e.g. iPhone).
This matter will come down to whether or not Apple's existing license extends to third-party developers, based on the language in the patent license agreements.
I believe it's not necessarily a troll patent issue that Marco was talking about, this is what trolls are meant to do, anyway; I think it's an issue with the law itself and its enforcement.
Could you believe this some 40 years ago: "I'm going to pay this parasite tax just because I cannot be protected by anybody"? Try "associate with" instead of "protected by"!
In plain English: because Apple bought the patent from Lodsys, Lodsys cannot ask for any benefit that might be related to the patent. Period.
I tell my son there is no such thing as talent, just understanding. This keeps the As coming in, dude is awesome
Paying a troll is like dumping toxic waste on your water supply. It's, at minimum, inconsiderate. By doing that, they further enabled this troll to go after everybody else.
Considering that Apple has already licensed the patent before being sued, why do you call them a patent troll. How as Apple to know that they were going to go after other developers?
It could have, for all you know, been a legitimate patent licensing issue - unless you think anyone claiming infringement on any software patent is a patent troll - which is a stance I don't really disagree with, but that's a separate argument, I guess.
IANAL but by lawyer standards this strikes me as very, very tepid. If I were an app developer, I would at least feel a bit better that Apple has acknowledged the problem and has taken some position on my side... but I wouldn't feel much better.
> and delivery of applications (or “Apps”)
Basically making a direct relationship between the word application and apps. Either way, I think the whole App Store argument is ridiculous.
"See, the 30% we charge you isn't so bad after all, is it?"
That said, the "conspiracy theory" falls apart because this is ultimately self-serving by Apple; in-app purchases translate to money for them, and if developers are too scared to include content purchasing options in their apps (since in-app is the only permitted method, natch), it means a direct hit to Apple's bottom line. It isn't altruistic towards developers, so it's silly to see it as a justification of Apple's 30% cut.
Other Apple Exec: Add value to it.
Apple Exec: How do we do that?
Other Apple Exec: Show people that if they didn't use our methods and lose their 30%, they'll get sued for licensing fees for an in-app purchasing patent and probably lose it anyways.
Apple Exec: "Hey Lodsys, we're already paying you money, but could you do us a favor real quick..."
I'm not claiming this is what happened, because I sincerely don't think it is what went down. I'm just illustrating a theoretical and likely fictional path.
Per-subscription costs, however, are a different story.
0.5% doesn't seem much, but if they succeed in this, many more other patent trolls will come out of the woodwork and all will demand a small percentages. Lots of these quickly add up, with 100 patent trolls parasiting on your App, you lose already half the profit.
Implying they support software patents.
I can be opposed to the current income tax rate while still paying all my taxes. Observing the law should not be confused with endorsing the law.
They are not. Apple could have taken Lodsys to court for their patents were, in fact, quite feeble.
Now, thanks in part to Apple, Lodsys has enough money to litigate. The only way to crush a troll is if everyone refuses to pay extortion for worthless patents. Without a source of easy money, the troll dies.
You might disagree with that interpretation of the law but you should never claim that it’s an endorsement of software patents.
I do not know Apple’s stance on software patents but I simply cannot see how Apple’s actions in this case can be interpreted as revealing Apple’s stance on software patents in any way.
And yes. They failed to take a stand because it was cheaper not to. Does that look anything but revealing?
Apple is a corporation. That is exactly how corporations behave: they do not take a stand unless they see material benefit in doing so. If you want to claim that something is revealing about Apple's view of patents, perhaps you should consider the number of patents Apple has.
Also, an analogy: if someone mugs me and I hand over my wallet, that does not mean that I'm endorsing the process of mugging. It means that I've decided that the known cost of complying (the contents of my wallet) is less than the potential cost of any injuries I might sustain in the process of fighting back.
A lot of people believe Apple used its patents, for example, to block Android from getting certain features. There's also speculation that MS spent a lot of time dealing with legal issues before WP7 -- which is why WP7 has different design decisions in so many places Apple has patents -- and one reason it was so late after WM6.1.
It's speculation, but it sounds like Apple may have used its patents as a way to stop competition on other carriers. Is that good or bad? I don't know, but it's legal.
And note that having patents doesn't protect you against trolls. Trolls don't care as they usually don't have product. Patents are only defensive against other actual product companies.
Regarding the accuracy of my comment, see http://www.macworld.com/article/46460/2005/08/ipodpatent.htm... for a quick summary of how Microsoft patented a key aspect of the iPod's navigation UI 5 months after Apple released the iPod and then demanded licensing fees. Apple ended up settling for $100 million. This is an actual product company.
The article that you linked to, while interesting, is purely opinion. Its argument hinges on the assumption that exclusivity with AT&T was a bad business deal for Apple, which I would strongly disagree with. I didn't like the lock-in as a consumer, but the deal was excellent for Apple because it gave them control over the carrier in a way other phone manufacturers had only dreamed of until that point.
"Last month the United States Patent and Trademark office denied Apple a patent for some user interface elements of the popular iPod MP3 player, citing a patent submitted by Microsoft developer John Platt five months BEFORE Apple’s claim."
Whereas you say Microsoft patented a key aspect of the iPod's navigation UI 5 months after Apple released the iPod and then demanded licensing fees. Obviously MS couldn't patent something used in a product months after release (and if they did it would be overthrown in court).
> A similar method outlined in a Microsoft researcher's patent application, filed after the iPod was introduced but before Apple sought its own patent.
Apple couldn't file for a patent after it released the iPod. You have to do it before public disclosure. And of course MS couldn't have gotten the patent if Apple had released the iPod.
To bring in the Groklaw quote mentioned:
"The rejected Apple application is not exactly a critical one. It also doesn't appear that the Microsoft patent covers the subject matter of the Apple application, rather it was used as an example to deny the Apple application because it isn't an original idea.
Platt's application covers a way to automatically generate playlists from songs similar to one or more song manually chosen by the user. As an example of usage, Platt described a portable music player that uses a menu hierarchy for navigation. The menus aren't really the invention though.
The Apple application, on the other hand, is all about hierarchical menus. Yes, seriously, that's what they were trying to patent, the idea of using a tree of menus to operate a portable music player. Can you believe it? (I knew you could.) I'd chalk this rejection up to an example of the USPTO doing some good.
The rejected Apple application is 10/282,861 - Graphical user interface and methods of use thereof in a multimedia player
The Platt application is 10/158,674 - Auto playlist generation with multiple seed songs"
This makes a LOT more sense. The Apple patent was rejected because it wasn't an invention. And the MS patent went through because it was actually patenting something that wasn't in the iPod.
Their software patents too are always very specialized, with no real vague areas that can be used for patent trolling. Not that they need to make a habit of patent trolling when they can print money with their sales anyway.
Even a tiny startup company full of web 2.0 rockstars who hate software patents will be advised to patent as much as they can, because if they don't, some other count will come along and patent their stuff from under them and force THEM to pay.
Pretty much nobody likes the software patent system except for software patent trolls, and as such we have to deal with it. Software patents won't go away until bad people go away.
that is what is happening
did you see how many people on HN (who are coders) want to abolish software patents?