Wednesday, June 22, 2011

Lodsys asks for two more months to answer Apple's motion to intervene and keeps sending letters to Android developers

[Update] Lodsys now claims that the motion discussed in this blog post was "FILED IN ERROR" and has replaced it with a new one asking for only one more month, not two. I have published the corrected motion and the "FILED IN ERROR" notice in this new blog post. [/Update]

Timing is key in legal processes. I just blogged about a court order denying Samsung early access to the iPhone 5 and the iPad 3, and the implications it may have on the timing of Apple's possible motion for a preliminary injunction.

The week before last, Apple filed a motion to intervene in Lodsys's lawsuit against seven app developers. I was hoping for Apple's intervention to be allowed very soon, but we may all have to wait. Lodsys would have had to respond to Apple's motion by June 27, 2011 (Monday) but just asked the court for additional time -- for two months, in fact. Lodsys would like to have time until including August 27, 2011.

I have published Lodsys's motion on Scribd.

In that motion, Lodsys claims that "[t]his extension is not for purposes of delay" (though it will undoubtedly have that effect) and claims to have Apple's blessings:

Counsel for Lodsys conferred with counsel for Apple and Apple does not oppose the relief [i.e., the extension] requested herein.

Formally, this still has to be approved by the court. Two months appears excessively long to me, but since Apple doesn't object, the judge may rubberstamp this motion. However, it's also possible that the judge grants less time, such as only one additional month rather than two. And no matter how much time the judge grants, Lodsys may not wait until the very end.

At any rate, it will take time before Apple is (hopefully) admitted as an intervenor. The problem is that the seven app developers who have been sued and, meanwhile, formally summoned will now have to react to Lodsys's complaint. Based on Lodsys's request for such a long extension, it may be possible for the sued app developers to also get two more months to reply. But that's not certain.

The biggest problem is that app developers need to know from Apple and Google how they should handle Lodsys's missives. Lodsys continues to send out letters demanding royalties. Whoever gets contacted by them needs to know whether the platform makers will provide blanket coverage to app developers. Otherwise, app developers may be well-advised to sign a reasonable license agreement as a smarter alternative to the enormous costs of U.S. patent litigation.

It's possible that part of the reason for Lodsys requesting this additional time is that they're secretly negotiating with Apple and Google. I said before (more than once, in fact) that Lodsys has a pretty good chance of getting paid either by the platform makers or by many little app developers.

Lodsys continues to attack Android developers

In May it already became known that Lodsys also sent out letters to Android app developers, and one of the accused products in Lodsys's lawsuit against app developers is Labyrinth for Android.

Yesterday, Cory Trese, a developer of Android games, reported on Twitter that he just received a FedEx transmittal from Lodsys. Here are some of his tweets -- Cory describes his views and feelings quite vividly:

#1: Just got a big package of legal BS from LodSys LLC about Star Traders RPG for #Android. I guess using @GoogleMobile SDK = Infringing ?

#2: @AndroidPolice Did all #Android devs wake up to FedEx man w/ legal threats and a big package of patent print outs? I up late doing updates!

#3: @AndroidPolice LodSys LLC claims Star Traders RPG is infringing on U.S. Pat. No. 7,222,078 they sent me screenshots of my naughty #Android

#4: @DroidGamers I think my house is the FedEx man's first stop. I saw the Marshall, TX Lodsys LLC return and thought "oh here we go again!"

[Update] Lodsys is in an administrative disarray. Not only did it replace its motion (now asking for one more month, not two) but it also contacted Cory and asked him to send the original letter back -- he will get a new one, so the threat is still there, and as Cory noted on Twitter, they didn't do that analysis of his game by coincidence. For the latest in this context, please see this new blog post, which quotes four new tweets from Cory. [/Update]

So far, nothing is known about Google's position on the Lodsys issue. Apple didn't do as much as I'd have liked them to do, but at least they wrote a letter to Lodsys and shared it with many app developers, and they filed that motion to intervene in the lawsuit. But Google hasn't said or done anything to the best of my knowledge. That's very disappointing.

Android app developers need to know how to respond to Lodsys's letters. Let me again quote Cory Trese, the developer of Star Traders:

With this tweet he asked Google's outspoken iPhone hater Tim Bray for guidance:

@timbray Advice for concerned #Android devs? You told me "Google will support Android developers" at #io2011 boot camp. Was it real? Lodsys!

And this point is also very well-taken:

For me I suppose this Lodsys LLC event will be a major determiner in how I feel about Google and Apple regarding developer relations/support

I support Cory and everyone else who feels that way. Apple and Google: it's long overdue that you tell your developer communities how to deal with Lodsys's letters and the risk of ruinous U.S. patent litigation. Please speak out. They can't wait until the court in Texas maybe grants Apple's motion for an intervention in late August or September. They need guidance right here and now.

If Apple and Google continue to remain silent, I may soon have to recommend to app developers to take a license from Lodsys on reasonable terms. I'd hate to do that. Far be it from me to support a troll. It's just about what the responsible choice is for each developer under the circumstances. None of them should be sued into bankruptcy. That's my concern. It should also be Apple's and Google's concern, even though their hands may be tied in some ways due to the agreement under which they licensed Lodsys's patents (almost certainly from Intellectual Ventures while it owned those patents, not from Lodsys itself).

I hope Android app developers who got contacted by Lodsys will make contact with each other the way many iOS devs have already connected.

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