EFF Urges Apple to Support Developers Against Lodsys Patent Threat

The Electronic Frontier Foundation (EFF) today issued a statement calling on Apple to defend App Store developers against patent lawsuit threats from Lodsys, a company seeking licenses from developers for their use of in app purchasing and upgrade links.

The EFF lays out its case that because the developers are taking advantage of Apple's developer tools to deploy the functionality being cited in the dispute, Apple is in the best position to defend against the threat.
This is a problem that lawyers call a misallocation of burden. The law generally works to ensure that the party in the best position to address an issue bears the responsibility of handling that issue. In the copyright context, for example, the default assumption is that the copyright owners are best positioned to identify potential infringement. This is because, among other reasons, copyright owners know what content they own and which of their works have been licensed. Here, absent protection from Apple, developers hoping to avoid a legal dispute must investigate each of the technologies that Apple provides to make sure none of them is patent-infringing. For many small developers, this requirement, combined with a 30 percent fee to Apple, is an unacceptable cost.
Apple's developer agreement, however, precludes developers from turning to Apple for assistance in legal disputes, meaning the company could leave developers to fend for themselves.

Many observers have, however, argued that it is in Apple's best interest to step into the situation, shouldering the cost and effort in order to protect its valuable ecosystem of independent App Store developers. If developers are reluctant to embrace the App Store for fear of being targeted by lawsuits driven by their use of Apple technology, the platform could suffer significantly.
By putting the burden on those least able to shoulder it, both Apple and Lodys are harming not just developers but also the consumers who will see fewer apps and less innovation. We hope that going forward companies like Apple will do what's right and stand up for their developers and help teach the patent trolls a lesson.
Meanwhile, one week has passed since the first notices from Lodsys arrived in developers' hands, leaving two weeks until the firm's deadline for licensing passes and at which point it has threatened to file suits against the developers. Apple has yet to address the issue publicly, but the company is famous for waiting to speak until it has a firm grasp of the facts at hand rather than trying to address public relations crises as quickly as possible.

Top Rated Comments

(View all)

113 months ago
Apple should obviously aim at protecting those who have made its Store what it is today.
Rating: 6 Votes
113 months ago
Come on, Apple. Grow a pair and protect those developers that have invested in your success.
Rating: 5 Votes
113 months ago
Developers should expect something for that 30% Apple App Store tax besides just distribution.
Rating: 5 Votes
113 months ago
Apple doesn't have time to deal with this they're too busy suing everybody and their brother.
Rating: 3 Votes
113 months ago
My opinion is that Lodsys has a right to its patent. But then I saw that Apple is complying with that patent already. Can one application of the patent require both Apple and the developers to pay patent right costs? If Apple is already paying for the use of it, does that not cover the developers selling apps within Apple's app store and running on Apple's iOS devices?

Should be interesting.
Rating: 3 Votes
113 months ago
Apple will have to respond. But, it takes time for them to investigate these things. Patent law is notoriously obscure and convoluted and I'm sure there's many, many possibilities and potential pitfalls involved. Apple has to be very careful as to what response they make and the exact wording of it. If they're already licensing Lodsys patents themselves, it gets even trickier for them.

Look at Apple's history, they generally do not respond to anything until they have a complete, thoroughly investigated solution or explanation ready to go. iPhone4 antennas, the cel tower "tracking", the Hon Hai suicides and worker abuse allegations, the white iPhone production problems, the various security exploits, and so on. They wait until they have the full grasp of the situation before they officially respond. Which is smart but can be annoying for those with a vested interest.

While it may look like they have their head buried in the sand and are doing nothing, I'm sure that is not the case.
Rating: 3 Votes
113 months ago
Software development is a mine field of patents. Software patents are not fostering innovation, they are stifling it. Drastic change is needed to fix this.

Software patents should only be considered valid during litigation when a valid software product incorporating the invention is actively marketed and sold by the patent holder that holds the patent. You can hold the patent until its normal expiration, but if you plan on going after somebody for using it, then you must be marketing and selling a real software product (and not just some bogus facade of a product) that incorporates the patent.

If you don't produce a viable product incorporating the invention within 24 months (i.e.: you are squatting on it and waiting for somebody to stumble across it on their own and thus infringe) then the patent should enter a "dormant" state. During the dormant state, any company incorporating the invention into a product automatically receives a perpetual unrestricted license to use the patent. The patent can only become active again once the patent holder releases (and makes available for sale) a software product that does incorporate the invention. However, any companies leveraging the invention during the dormant state are automatically grandfathered in because of the automatic perpetual unrestricted license.

If the patent holder releases a product, but ceases to make that product available that incorporates the patent for a 24-month period or fails to sell a minimum number of software product licenses within that 24-month period for their product (i.e.: the product is not viable), then the patent should also enter the dormant state.

Basically, this makes it far more expensive for patent trolls to operate, and it prevents folks from squatting on patents and then realizing their value once somebody else innovates and invents the same thing for themselves. You can hold your patent, but if five years down the road somebody else innovates in a way to create value for your patent you can then choose to release your own product, but all you can do about the already-released products of other companies is thank them for showing you how useful your patent might have been if you had gotten off your butt and done something with it.
Rating: 2 Votes
113 months ago
Maybe I'm completely wrong here, but I think there is no way that Lodsys is going to file suit over these small alleged infringements on their patent.

Doing some quick reading, it looks like most patent claims cost ~$1,000,000 to go through the court system, and it is very difficult to get attorney's fees/costs from the defendant unless you can prove that the infringement was willful.

I do not think that Lodsys is going to risk $1M USD on each developer potentially to get less than $5,000 per claim.

This is a scare tactic. They want to make these developers pay up, but their payout if they take them to court is nowhere near the cost to do so.

Source material (http://www.sacramentopatentattorney.com/Briefs-Articles/should-there-be-a-patent-small-claims-court.pdf)
Rating: 2 Votes
113 months ago

Apple will have to respond. But, it takes time for them to investigate these things. Patent law is notoriously obscure and convoluted and I'm sure there's many, many possibilities and potential pitfalls involved. Apple has to be very careful as to what response they make and the exact wording of it. If they're already licensing Lodsys patents themselves, it gets even trickier for them.

Look at Apple's history, they generally do not respond to anything until they have a complete, thoroughly investigated solution or explanation ready to go. iPhone4 antennas, the cel tower "tracking", the Hon Hai suicides and worker abuse allegations, the white iPhone production problems, the various security exploits, and so on. They wait until they have the full grasp of the situation before they officially respond. Which is smart but can be annoying for those with a vested interest.

While it may look like they have their head buried in the sand and are doing nothing, I'm sure that is not the case.


Couldn't have said it better. Apple has a lot of good employees but none are miracle workers and things like this take time to research and investigate. Apple doesn't like to lose and I'm sure they are busy whipping up something as we speak. If they lost this many developers would be pissed and possibly rip their software from the App store. Apple isn't going to want that since its their money too.

Developers should expect something for that 30% Apple App Store tax besides just distribution.


App store tax? I don't think so. Your paying for hosting, free publicity on the biggest software store available with an insanely easy sale system, and an opportunity to have your app rated by many people or displayed on the front page. 30% is really quite reasonable. If you want to see robbery look at console game developers who usually see 1 - 2% of the profits of a game while the publisher takes the rest.

I'm sure Apple could pretty easily pay off Lodsys and protect developers. The problem is, that validates the whole scheme, and this is just one patent of thousands out there. If Apple caves, many others will surely follow, then it really becomes a problem. Apple cannot afford to cover licensing costs for (potentially) dozens or hundreds of these patents for all developers. Plus, if small developers start recieving a bunch of these lawsuits on a regular basis, think of the chilling effect that will have on the whole developer community. It's a disaster waiting to happen. They need to find a way to shut this down without encouraging other trolls.


Agreed. I would rather them take their time and squash this rather than cave to it.
Rating: 2 Votes
113 months ago
Well Apple, use a tiny portion of those billions of $$$ you have to place things in order, it is just fair.
Rating: 2 Votes

[ Read All Comments ]