Friday, May 27, 2011

Lodsys and videophone patent troll double down and attack Android after Apple's iOS

Quite frequently, those who assert patents against Apple's iOS and its iOS-based devices also go after Google's Android (and Android-based devices). Most of the time it happens simultaneously, but today I found out that two patent trolls who recently attacked Apple's platform have expanded their activities and started to tackle Android.

Note that Lodsys hasn't sued yet; in that case we're talking about letters demanding royalties from little app developers who are economically defenseless unless a major player helps them. But Visual Interactive Phone Concepts, the videophone patent troll on whom I already reported yesterday, has sued Google. That is Android-related patent infringement lawsuit no. 43 by my count. If one counts not only patent but all intellectual property infringement lawsuits, it's no. 44 because then eBay's and PayPal's new lawsuit against Google, which relates in no small part to trade secrets (also an intellectual property right), must be added on top.

Those 43 patent -- or 44 intellectual property -- infringement lawsuits notably include Oracle's lawsuit against Google, in which there are signs of nervousness as Google just added the third law firm to its defense team...

I'll now discuss the latest in the Lodsys mess and below that one I'll talk about that videophone patent troll's two new lawsuits (filed today).


An Android app developer posted to the "Android Discuss" Google [discussion] group a request for "direction from Google" after he received a letter from Lodsys, claiming patent royalties for an Android app that offers in-app purchasing. I became aware of that post thanks to tweets pointing to this MacRumors article.

As I told ReadWriteWeb earlier today, that information hasn't been corroborated by anyone else yet, but that app developer's story is credible to me. In my Lodsys FAQ (published about a week before Apple's letter to Lodsys) I already addressed the question of whether Lodsys might make assertions against apps running on other platforms than Apple's iOS, and I pointed out that Lodsys's FAQ used the same language in connection with the patent license that -- even according to Lodsys's own representation -- had (well ahead of Lodsys getting to acquire those patents) been granted to Apple (although the companies clearly disagree whether or not that covers Apple's app developers in connection with in-app purchasing) and the licenses some other companies, of which Lodsys mentioned Google and Microsoft in particular, received.

In that FAQ I had also explained how I believe those companies (and others, including Nokia) received a license to those patents: most likely, they didn't do a deal on those patents in particular but licensed them along with about 30,000 other Intellectual Ventures portfolios while they belonged to that entity, which Apple, Google, Microsoft and others financed (for a complete list of Intellectual Ventures investors, check out this PatentlyO blog post).

Since Lodsys believes that Apple's license doesn't cover its app developers, it's logical and consistent that it takes the same position on Google's (and probably also on Microsoft's) license, if my assumption is right (which I'm pretty sure of) that they all have the same kind of license.

A couple of people asked me today whether I thought that Lodsys is going after Android developers because Apple's letter took care of iOS developers. The answer is absolutely positively NO. Apple's letter is not the end of the road for Lodsys. I'm convinced that Apple's reaction -- saying that their license covers app devs -- was just the most likely reaction of all possibilities Lodsys contemplated and, in fact, anticipated. Lodsys's own FAQ already addressed this even before Apple spoke out.

Lodsys will continue to pursue its agenda vigorously. Whether we will hear from them depends on whether they will go ahead and sue Apple and/or (more likely) some app developers. If all that happens now is closed-door negotiation with Apple and a private settlement, it may look like Lodsys never made the next step in this, but unless Apple pays them, the most likely next step will be for them to sue someone sooner or later.

The expansion of Lodsys's activities to Android apps (provided that the Google groups post is accurate, which I tend to believe it is) was probably also part of its original game plan. I hope we will soon find out whether Lodsys wrote to Android app developers only after or also before Apple's letter, but at any rate I'm sure it was part of the plan. Also, Lodsys doesn't have too much time to act before the patent it asserts against in-app purchasing will expire (at which point it could, however, still try to get paid for past "infringement").

The key question now is whether Google will take a similar stance vis-à-vis Lodsys as Apple did. I personally hope they will do at least that and hopefully do something better: tell their app developers what kind of coverage they have if they refuse to meet those royalty demands (something that Apple didn't state explicitly).

If you're an Android app dev who got contacted by Lodsys, please fill out my contact form. I will treat your information confidentially and won't publish anything about what you tell me before you grant your consent by email.

And let's not forget that there's a patent assertion going on against some little app developers that's even worse than Lodsys: MacroSolve is suing some of them, in at least one case without advance warning. MacroSolve's assertions targeted apps on multiple platforms (mostly iOS, Android and BlackBerry) from the start. No intervention by any of the platform makers is known in connection with MacroSolve yet.

Visual Interactive Phone Concepts sues Google and Verizon, two days ago sued Apple, AT&T and US Cellular

Yesterdady I reported on Visual Interactive Phone Concepts' lawsuits against Apple, AT&T and US Cellular. I then stated that "anyone building videophones based on other operating systems (such as Android) will also be asked to pay and, potentially, sued in the future." I just didn't know it was already in the making. Today that company also sued Google and the #1 wireless communications provider in the United States, Verizon. Those complaints (one for each defendant) were filed with the same court as the three previous ones: the U.S. District Court for the Eastern District of Michigan.

  • The accusation against Google is that "Google designs, manufactures and sells an operating system for mobile communication devices that are videophones. Google also provides to users products and services associated with and to be used with the mobile communication devices that contain means for inputting information into the videophone for purposes of accessing and ordering applications and means for viewing and receiving video and data from Google and other vendors." That operating system is undoubtedly Android. The "services" mentioned in the quoted passage would probably also include YouTube, but it isn't mentioned by name. The only example the complaint states appears to be the Android Market: "Google provides an application service for users to view, download, and use applications, music and books on their videophones (the 'Market')."

  • The accusations against Verizon are structurally consistent with those previously brought against the #2 and #7 in its market (AT&T and US Cellular), i.e., focus on services with a "central data server" (for details, see my related post). In Verizon's case, the services stated as examples include "a video on demand service [for] TV episodes and sports events", "a mobile music service", "a V Cast media manager service [for] miscellaneous media content", and "a Media Store service [for] ringtones, games and other applications".

We will see when that company starts more patent infringement suits. Maybe the five it filed this week are enough for the time being; maybe they still have appetite for more. They might go after some more networks, such as the #3, #4, #5 and #6 in the US market. They could also go after Android device makers or other platforms. They probably feel very strong now because, as I reported, their patents just recently withstood reexamination for the most part. And they have a long history of litigation going back to cases in 1999 and 2007 (as I also mentioned in my previous post on this subject)...

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