Tuesday, July 12, 2011

First app developer gets 30-day extension to answer Lodsys's complaint

Four days ago I reported that the first app developers have already been given a deadline by the U.S. District Court for the Eastern District of Texas to answer Lodsys's patent infringement complaint (filed on May 31, 2011). In the same post I explained that a 30-day extension is relatively easy to get, and indeed, the first app developer -- Iconfactory (known for Twitterrific and other programs) -- has already been granted such an extension.

Here's the form that Iconfactory's lawyers -- the firm of Findlay Craft -- submitted to the court today:

11-07-12 Iconfactory Motion for Extension of Time

Today the judge granted the request:

Defendant's Unopposed First Application for Extension of Time to Answer Complaint is GRANTED pursuant to Local Rule CV-12 for Iconfactory, Inc. to 8/25/2011. 30 Days Granted for Deadline Extension.( sm, )

So the new deadline for Iconfactory's answer is August 25, 2011.

You may have noted that the form stated "unopposed", and the order repeated that word. An "unopposed" motion is usually filed if the lawyers of the moving party (the "movant") checked with the lawyers of the other party and were told that they don't intend to file an opposition brief to the motion. This simplifies things for the court. In this case, Lodsys could hardly have prevented the extension anyway. A 30-day extension is granted "as a matter of course", and Lodsys itself just requested and received a one-month extension to respond to Apple's motion to intervene. But if a defendant asked for a second extension, an opposition brief by Lodsys could succeed.


The East Texas law firm hired by Iconfactory is relatively small: four attorneys. Lodsys's law firm in Texas is even smaller (one lawyer named Bo Davis). But most of the local law firms in East Texas are small. They are, however, frequently supported by lawyers based in other cities. At this stage it's possible that Iconfactory itself pays for its counsel. However, should we see a very large and expensive law firm involved at a later stage, then it would be more likely that Apple actually provides the funding.

In my opinion, it's not a good idea for app developers to engage in litigation with Lodsys. It won't take long before they spend more money on lawyers than they'd spend paying Lodsys its 0.575% royalty. In my opinion, app developers should obtain legal counsel but focus on the most direct path to a solution, obtaining blanket coverage from Apple (and/or Google) or otherwise focusing on a license agreement. I believe some of the advice that app developers get to defend themselves is politically motivated, and often misleading.

Lodsys continues unabatedly to send out letters -- to developers in the US and in other countries

Today I saw a German-language tweet about Lodsys. A member of a small app development team based in Germany received a FedEx package from Lodsys, containing the usual infringement assertions. I have put him in contact with people who maintain a mailing list of "lodsysed" app developers, after explaining to him that a refusal to pay Lodsys may result in them naming him as a defendant in a Texas lawsuit.

I usually read about new Lodsys assertions at least once a day either on Twitter or by mail (via this blog's contact form). I also discussed this issue with TiPb's Rene Ritchie toward the end of this podcast.

No one should take Lodsys's assertions lightly.

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