Apple has come to the defense of iPhone and iPad app developers under pressure to fork over a portion of their in-app purchase revenue to a US patent-holder known as Lodsys. Last week, Lodsys sent letters to iOS developers that use in-app purchasing, asking that they hand over about half a per cent of their US revenue as a …
Hmm, bit of a poser this one.
I can readily see that, by definition, the license that Apple have purchased must cover them, people selling Apple products (acting in effect as Apple's agents) and of course the end-point customer to whom these products are sold. I am absolutely no expert but I cannot quite see how such a license would cover third-party *producers* of goods and services designed to function with Apple products. Apple's interpretation would seem to suggest that anybody making anything that can be used in conjunction with Apple products is covered if Apple say they are covered (ie Apple say that they are a partner). Does anybody here have more of a clue and can explain this area of the law? I must admit that I am puzzled, Apple appears to be claiming very wide-ranging rights under this license, surely the right to name/protect third-party producers under the terms of *Apple's* license would have to be explicitly stated in said license? The devs after all not employed and paid by Apple to manufacture on Apple's behalf (like Foxcom is) goods which Apple then own and thereafter sell to customers directly or via third-party retailers, they are independent *producers*. Their products do not become Apple's property at any stage even though they are sold via the AppStore. Apple assert that they *are* explicitly granted such rights in this license. Any way we can find out *where* in this license they feel that they are granted such rights?
We havn't seen the license
I assume Apple paid enougth cash so that they could allow 3rd party software developers to be covered by the license when creating software for Apple products and only Apple products . This I think is the important part of Apples claim : "Under its license, Apple is entitled to offer these licensed products and services to its customers and business partners, who, in turn, have the right to use them.".
Pretty much "Game over" if thats the case.
This may be a stretch
but it might be similar to an OS developer licensing the use of an MP3 decoder from a third party holding the patent. Presumably, anyone using the decoding API available to the OS would then not need to also obtain a license from that third party. In which case, it would be up to the OS developer and the patent holder to set a fair price on the patent's use, knowing any developer or user of that system would likely make use of the API.
Hell if I know whether that is feasible, or even applies in this case. It's patent law, not rocket science. That's why it takes longer to sue a large corporation than build a space agency capable of getting a few guys to the moon for a few rounds of golf.
re: bit of a poser
The App Store is a service provided by Apple, the apps constitute part of that service and Apple has a license to use the patents in its services?
Begging the question
"Their products do not become Apple's property at any stage even though they are sold via the AppStore."
They don't? I mean, I haven't read the entire developer license agreement, not being an iOS developer, but I'd wager that it uses the same language to describe their developers as their deal with Lodsys uses. Lodsys probably didn't read the fine print before trying to spring this trap.
...i've got my iMode (2.5G) handset. Its business model allowed paying for subscription services and applications from my cellular contract, without explicitly using a credit card. If this aint prior art, then what is?
@a_been re "We havn't seen the license"
Indeed we have not seen the license which is precisely why I asked in my posting:
"Any way we can find out *where* in this license they feel that they are granted such rights?"
What makes me curious about this business is that *if* Apple ensured that they *did* purchase such rights then I am quite certain their legal dept would have ensured that the necessary clauses in the license agreement put the issue beyond any dubiety. That being the case why does Lodsys think that they have a case? They must have known that the devs would contact Apple the moment they received those letters and that it would indeed be "game over" as you put it *if* those rights were explicit in the license. The whole business is very peculiar.
more like ..apple have more (patent)lawyers and money.....
"Pretty much "Game over" if thats the case."
The point is
That the entire chain responsible for performing the patented actions is owned by Apple and licenced to it's devs by them. They call an Apple API and wait for a response. If they had rolled their own in-app purchase system then they probably wouldn't be covered (but Apple wouldn't let said code into the App store anyway).
I'm going to place a prominent notice on my website, proclaiming my business is an authorized Apple partner.
Best not do that
You can put whatever you wont on your website, dosn't stop you going to jail for fraud.
Going to be interesting to see Apple refunding money to all the developers. With Apple taking a stand, the developers will be taken to court and will face much higher damages than had they accepted the simple 1/2%.
Having said that, Lodsys smells an awful lot like ACS:Law - if they REALLY thought they had a case, why aren't they taking the developers straight to court? No, they've decided to demand money with menances, demanding a small amount to "make the problem go away".
Devil's in the detail, and I'm sure the lawyers will make a pretty penny examining the contract in very very very fine detail.
All any developer need do is apply to the court to have Apple added as an essential party to the case, then stand back and watch Apple's legal team rip LodSys to bits.
Absolute worst case Apple will have to agree a change to their licensing costs to cover additional parties. Best case LodSys have to pay legal costs (they get less than nothing).
"why aren't they taking the developers straight to court? No, they've decided to demand money with menances, demanding a small amount to "make the problem go away"."
Because there is a due process, LODsys need to attempt to resolve this properly by offering a contract with the developers and then if the developers refuse; a court case can ensue.
Whether the infringement is valid or not, that is the process that needs to be undertaken.
Anyone else get the distinct impression the patent wording is a heady blend of bullshit, whale-song, marketing weasel words with a drizzle of pure bollox on the top?
F*ing patent bolloxs.
That patent is completely impenetrable and insanely vague. It lists handheld calculator as prior art, how about a god damn mobile phone!!!
In-app payment is provided by an Apple API. By using that API you aren't infringing a patent that has been licenced by the provider of that API (Apple).
Just suppose a game developer used DirectX and there was a patent dispute against DirectX, you wouldn't expect a person using DirectX to have to also pay for a licence when Microsoft had already.
It sounds to me like a very greedy patent troll. But by feeding them in the first place you sustain them.
Why would I need a licence to call a function?
When I use a function within a programme all I do is something along the lines of
I neither know nor care how the function works, that is the job of the company that provided me with the function for use within that enironment.
In effect none of my code executes the technique that is licenced, this is done by code that the providing company has written (& I assume has a licence for).
Calling an in game shopping cart an 'invention' is what I would call a sham.
The Apple App Store is the only place that Apple iOS Apps can officially be sold. Developers developing Apps for sale in this App Store are effectively therefore sub-contractors to Apple; their "rate" being 70% of the sale price of the app. As subcontractors to Apple, they would be covered by any licenses which cover Apple.
That's my take on it, anyway. I agree with the comment comparing these chancers with ACS:Law. If they were sure of their ground, they would begin an Action in the courts.
Stupid Yanks and their stupid patent system...
attack the patents... patents on software should not be allowed as they are basically patents on mathematics and that is not patentable.
OK, fun's over Lodsys
Lodsys, come on you've had your little 15 minute slot of free PR, proding the fruity one, now it's back into obscurity if you don't mind please.
Hmmm I can't remember if this is correct but did I not read a while back that Apple were not allowing in app purchases to bypass the app store?
Could this just be their way of reinforcing that? Get Lodsys to send out letters then jump to the devs defence! See, It was all for your benefit after all!
As I said I may not have read correctly or even remembered correctly. Either that or I see conspiracy everywhere?
What you mean they did land on the moon? I'll get my coat.
So who is next?
It sounds like Apple have a strong case against this blatant patent troll, but you just know the troll is going to turn their attention to other platforms next, with probably Android next in line, as thats said to be the fastest growing new mobile market.
Its a sick twisting of the law that this ridiculously easy and obvious patent was ever allowed.
Even worse the initial filing date of this patent was August 1992, but by applying for extensions, they have been able to extend the lifespan of the patent by more than a decade!. The trolls have gamed the patent system to extend the patent's lifespan long enough to go after the mobile phone developers.
The patent shouldn't even be complex rocket science, its just being used as a buy now button patent, so why allow the extensions. The patent was finally granted over 11 years later than it should have been. But then looking at the ridiculous scope of the patent its near impossible to see it was ever a buy now button, but rather has been massaged into being a buy now button patent over the years of its extensions (probably as they saw the phone industry growing they added claims to cover more of what they saw). The patent makes 74 claims that sound like just about the entire functionally of phones or even desktop computers and then combining that with the Internet. I can't see anything thats new. Phones, computers and the Internet all predate this patent.
Its a sick twisting of the law. What gets me is these patent trolls have no shame. It looks like they have twisted the patent around to suit their goals and are now trying to use it to run a sick crooked modern day extortion racket and worse still the government are complicit in that extortion racket, as they are allowing patents like this to exist and the government also allows the patent system to be exploited to run a modern day extortion racket.
The more I hear about these patent trolls the more appalled I am of the whole patent system and legal system that allows it to continue.
if you look on their site - they answer the question "Why is Lodsys contacting Application publishers and website publishers rather than Operating system vendors or device manufacturers?" - with some stupid hotel analogy - basically saying that Apple built the hotel and the application publishers are the hotel owner. I think they have it all wrong.
If they want to use a hotel analogy, it's better to think of it like a brothel - Apple are the brothel owner, and the applications are the whores. Apple collect your membership fee and the in-app purchase covers hourly rates and extras. Either way it's the owner who collects the payment, regardless of which hooker you are with...
I don't think Apple could lose this if they tried...
I think the following analogy actually applies in general, never mind this whole patent shakedown:
"If they want to use a hotel analogy, it's better to think of it like a brothel - Apple are the brothel owner, and the application[ developer]s are the whores."
Apple and Lodsys would then be the pimps (not literally, Mr Lawyer, just for this analogy), the latter considerably more than the former, because as patent holders they don't do any of the hard work but merely collect the takings.
Patent is invalid, obvious, prior art
Smart metering started all that YEARS ago ... getting the customer involved in load control and immediate feedback ... the company I work for supplied that kind of ability and interaction across wireless networks before their patent was filed.
Apple buying gatekeeper
Apple is buying a gatekeeper to it's walled garden.
It is plenty of examples before the patent was filed or granted of shareware with this funktion as prior art.
It would'nt be har for Apple to chruch this patent but they chose to pay and give legimity to the patent troll.
Beware all free developers. The troll is coming for you
no lawsuit - dang
It's a pity that Lodsys didn't start with filing suit, as Righthaven did.
Because then Apple could object to any attempt to withdraw the suit and make sure the case was heard and the patent invalidated.
Pity they can't do that. These patent trolls deserved it.
Don't feed the Troll,
it may come back and bite you!
Not in Apple's Interests
@ Peter 39
Why would apple do that? It's makes much more sense to scare the patent holder away from iOS devs and let them go after other platforms (Win Mobile, ANdroid, Blackberry, etc). Then apple get to say look you can use this functionality in iOS with no patent problems but if you dev for something else...
Worst case scenario the others fight it and it is found nvalid and Apple doesn't pay, This is a win win for Apple if they can scare Lodsys away without flexing thier legal muscles.
That makes no sense
Since Lodsys has said both Google and Microsoft are also licensed for the technology.
So if Apple scares them away on those grounds, it also scares them away from the others - unless there are technical or legal differences in implementations of app updates or payments, but I'm not aware of any that would change this outcome.
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