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In Mid-May, several app developers, for both iOS and Android, received legal notification from a patent holding company named Lodsys, claiming that certain functions of their apps (such as the In-App Purchasing mechanism that Apple offers to developers) were in infringement of Lodsys patents.
After Lodsys filed lawsuits against seven iOS developers, Apple attempted to intervene on behalf of the defendants, but Lodsys has continued to send out legal threats to developers. Because of the way patent litigation is designed in the United States, it is frequently considerably cheaper to settle with patent-holders rather than fight it out in court -- even if the defendant believes they are right, because of the extraordinary costs involved with patent litigation.
This past weekend, Florian Mueller at FOSS Patents penned a lengthly article outlining what he believes is the most cost-effective strategy for developers who must deal with Lodsys. He makes it clear that his post isn't meant to be "legal advice" but it is a good starting point for smaller developers who might now know where to begin:
It's time to be pragmatic.
Lodsys won't go away quickly unless Apple and Google pay them many millions of dollars (which could happen anytime but might also never happen). Meanwhile, each app developer who faces this problem should make a rational and responsible decision -- even if it means to pay. So far there's no indication that Android developers can get away without paying, and iOS developers don't have a dependable basis for ignoring Lodsys's insistent demands.
Mueller's conclusion? License the patents to make Lodsys go away and get back to building great apps.
Lodsys is only a risk for you, not an opportunity to get rid of trolls or of software patents. Eliminate the risk now. Follow the two-step approach. Try to get coverage. If not (which is the most likely outcome), do a license deal. Do all of this with legal help, but don't let any lawyer persuade you of futile efforts. Pick the most direct path to a solution. Share the costs with other app developers. And when you've solved this problem, focus on more important, more interesting, more productive and more edifying things in life.
(Photo by Flickr/Stefanedberg)
Top Rated Comments
He makes it clear that his post isn't meant to be "legal advice"
That's good, because Mueller is not a lawyer and most specifically not a patent lawyer. Note how often he gets details wrong when he discusses what patent cases mean or how they will proceed. He's being shot down by patent attorneys on the Web. So:
a) MacRumors should stop giving him credence on the subject of software patents.
b) Nobody should follow his advice without talking to a patent attorney. Talk to the experts, not the ones playing an expert on the Net.
I'd rather remove features, or even withdraw a product, than pay a patent troll.
It pisses me off that developers are basically losing to something that doesn't exist.
For anyone getting targeted, the first action should probably be to contact Apples legal team and decide than based on their input.
Here some slightly different take on the situation for Lodsys under the headline "This is going to get expensive... for Lodsys".
http://www.groklaw.net/article.php?story=20110705124738103
If they came at me, the first thing I would do would be to talk to my legal staff about putting the money into an escrow account while the legal action was taking place. The next thing would be to ask about starting a class action lawsuit with the intent of destroying Lodsys. My third action would be to start looking for prior art on every patent Loadsys owns.
Sometimes the best course of action is to destroy your opponent at all costs. This reduces the odds of some other jerk coming at you in the future (If you survive.)
When you're just one guy writing iOS apps in your study in the evenings, the couple of £100 you make from the App Store aren't going to go far towards funding that...