Apple’s letter to Lodsys, the patent troll firm that’s trying to shake down iOS developers, seemed to be great news for that beleaguered bunch. But not so fast, says one prominent intellectual property attorney. The fight’s still on.
On May 13, Lodsys sent nastygram legal notices to a slew of iOS developers telling them that they were violating its patents for in app purchases, and asking them to pay up. Apple responded with a letter to the Lodsys today, essentially telling it to get bent. But according to Florian Mueller, an intellectual property attorney and blogger who has been covering the case (quite eloquently!) this is just ann opening salvo, and developers shouldn’t put their knives away just yet. Mueller notes:
App developers have to understand that Lodsys can still sue them. Apple’s letter does not prevent Lodsys from doing that, and it would be a way for Lodsys to pursue its agenda. It wouldn’t make economic sense for Lodsys to sue a few little app developers based on the damage awards or settlements Lodsys might get out of such a lawsuit. However, for Lodsys it would still be worth it if this resulted in a lucrative settlement with Apple, or if it (alternatively) scared potentially thousands of app developers so much that they would pay. Lodsys would sue some app devs only to set an example, and for the ones to whom it happens, that would be an unpleasant situation.
[I] t’s still going to be very unpleasant to be sued by Lodsys. Apple would probably do whatever they can to shield you from the need to spend much time on this, but you would have to approve any pleadings and motions in your name, and you might have to testify in court if they successfully subpoena you.
Assuming they sue you in Eastern Texas, you might have to travel there.
Horrors! And worse, for developers, he notes:
Now let’s look at the possible outcomes of such a lawsuit. If Lodsys loses and Apple covers your legal fees, you’re fine. However, if the final ruling is that there is/was an infringement of a valid patent and that Apple’s licence does not benefit iOS app devs, the position taken by Apple in today’s letter to Lodsys would be proven wrong. To be clear, I think Apple’s letter explains very convincingly why Apple is right and Lodsys is wrong. But there’s always some uncertainty about litigation of this kind. So on a purely hypothetical basis, if Lodsys won, Apple would have been wrong. In that case, it would be hard for app devs to claim that Apple has a legal responsibility to cover them — including whatever the damage awards would be — since the court(s) would have found that the app developers are liable for their own creations.
In other words, now it’s time for the lawyers to earn their pay cheques.