Monday, June 13, 2011

All four Lodsys patents now also challenged in Southern California by anti-virus software maker ESET

There are now five Lodsys-related lawsuits. Lodsys itself has already filed three infringement lawsuits against a total of 27 defendants (against Brother, HP, Samsung others in February; then against seven mobile app developers; and most recently, on Friday, against adidas, Best Buy and others). Last week, ForeSee Results filed a declaratory judgment action against all four Lodsys patents in the Northern District of Illinois (that federal court is based in Chicago). And another such pre-emptive lawsuit was filed on Friday and today made its way into the electronic court records system: anti-virus software maker ESET (corporate website, Wikipedia entry) filed a declaratory judgment action against Lodsys with the U.S. District Court for the Southern District of California.

In this Scribd folder you can find ESET's complaint, the letter Lodsys sent to ESET (materially consistent with those received by app developers but sent out in March, while app developers were apparently contacted in May and June), and an email sent by Lodsys to ESET's lawyers along with a claim chart. That claim chart shows that Lodsys alleges ESET's anti-virus software's upgrade function infringes the '078 patent. The claim charts Lodsys sent to mobile app developers (see the attachment to this Lodsys letter to Illusion Labs, which Apple used as an exhibit to its motion to intervene) documented the same allegations based on the same patent.

Like ForeSee Results, ESET attacks all four Lodsys patents, asking for a declaration that it doesn't infringe them as well as a declaration of their invalidity.

Brother and Lenovo also requested (as counterclaims to Lodsys's first lawsuit) declaratory judgment of invalidity concerning the two patents asserted in the lawsuit against app developers (though not with respect to the other two Lodsys patents). This means that the two patents over which Lodsys is suing app developers are now under declaratory judgment attack in three courts by four companies (in the Eastern District of Texas by Brother and Lenovo, in the Northern District of Illinois by ForeSee Results, and in the Southern District of California by ESET).

ESET's lawsuit has something else in common with the action taken by ForeSee Results: they are also represented by first-rate lawyers. JonesDay is a leading global law firm. I know that they do, just for an example, a lot of work for SAP in the U.S., Europe and Asia.

With all that's going on, I guess Lodsys has already sent out tons of letters and may be continuing to do so on a daily basis. They attack everyone large and small, and a couple of Lodsys's targets apparently decided not to wait for a lawsuit (like Apple did) but launched pre-emptive strikes in districts of their choice. Lodsys would obviously prefer to duke it all out in East Texas.

By the way, four of the five Lodsys-related lawsuits -- all but the one against Brother, HP et al. in February -- were filed during the last two weeks. While I doubt that complaints will continue to be filed at that rate, it's quite possible that there'll be more. The fact that Lodsys picks so many fights suggests that they really have the funding in place to afford a number of parallel lawsuits. Also, all of this adds pressure on them to force companies into payments, and they may step up their pressure on app developers now. As long as Apple and Google don't give definitive guarantees that app developers should simply ignore Lodsys's requests for payment, this will present a number of developers with a tough choice.

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