These past few days I have received several more messages (on Twitter and via my contact form) reporting continued assertion-letter-mailing activity by Lodsys. After a quick update on that, I'll recommend an online boot camp for app developers targeted by patent trolls, and I'll also explain why I won't have the time to blog about Lodsys too frequently in the future.
Android developers keep getting letters -- including European ones
I have received a copy of a letter dated August 23 sent by Lodsys to an Android game developer based in Germany.
Several months ago I already explained that Lodsys can bring assertions against persons and companies based outside the United States as long as those do business in the U.S., such as through Apple's app store or Google's Android Market. As a matter of fact, Lodsys has already sued overseas companies: Wulven Games of Vietnam (dropped from the action, presumably due to a settlement), Illusion Lab of Sweden, and Rovio of Finland.
A few days ago the BBC reported on a Lodsys letter to a Spain-based developer of Android apps (also in Spanish). In July, the BBC reported on a British developer who received a Lodsys letter.
Withdrawing one's apps from the U.S. market may help to reduce the problem in he future but Lodsys would still want to be paid for "past infringement", which developers cannot make undone that way.
Google talks to the patent office but not to its developers
Two weeks ago Google pulled a PR stunt by announcing reexamination requests against two Lodsys patents. After giving that story exclusively to one publication, Google then provided its reexamination requests -- long before they entered the public record -- to an unreliable blog that's known for its pro-Google bias especially in connection with the Oracle lawsuit. That blog celebrated Google's reexamination requests as a game changer.
Apparently, and not surprisingly, the problem hasn't gone away at all. Instead, it seems that Lodsys now sends even more letters to Android developers than in the weeks before.
The problem is that such a reexamination request doesn't help app developers who receive (or have already received) a Lodsys letter and have to decide whether to pay or whether to take their chances. I have for a long time been advocating a more cautious approach, favoring settlements on reasonable terms over costly and drawn-out litigation. Google's reexamination requests aren't a basis for app developers to ignore Lodsys's letters. Lodsys can send letters regardless of those requests. Lodsys can sue developers regardless of those requests. Maybe they'll have some effect further down the road, but there's no guarantee they'll ever have any useful effect. I talked to a reexamination expert and he couldn't find anything impressive in Google's reexamination requests.
What app developers need is coverage and guidance. Without coverage, it's incredibly risky to fight a well-funded troll. Without guidance, most of them don't even know what to do.
Google's general counsel Kent Walker told Wired on the occasion of those reexamination requests:
"Developers play a critical part in the Android ecosystem and Google will continue to support them."
Support? What does Mr. Walker call "support"? I dont know of even one app developer who received a substantive answer from Google when asking them about how to deal with a Lodsys letter. I don't know of anyone who received coverage from Google so he can pick a fight with Lodsys.
Maybe Google's initiative will have some useful effect at some point in the distant future. But an increasing number of app developers have a problem right here and now. Mr. Walker, what do you do to support them when they really need you?
Don't be evil.
Lodsys expands activities to BlackBerry platform
On Twitter, a BlackBerry game developer named RottenOgre -- maker of the Lonely Turret game -- told me about a letter he just received from Lodsys:
After iOS and Android developers, Lodsys is now also going after BlackBerry app devs. Since RIM faces a lot of challenges, I don't know how much help those developers can expect from their platform maker. But since neither Apple's motion for an intervention in a Lodsys lawsuit nor Google's reexamination requests have provided any timely solution, RIM can hardly do anything less useful than those two companies...
September 9, 2011: EFF boot camp for app developers
I have already referred many "lodsysed" app developers to the Electronic Frontier Foundation, a non-profit organization that truly cares about these kinds of issues. The EFF has now scheduled a virtual boot camp for September 9, 2011, at 12 noon Pacific Time (that's 8 PM London time, 9 PM Central European Time). On this page you can find further information on how to participate.
There will be a panel of law professors and patent attorneys who can explain to the app developer community what it means to be threatened with U.S. patent litigation, and how patent licensing works.
I think it's great that the EFF organizes this event and I encourage all app developers to participate.
When you follow those presentations, always think about this in terms of what's best for you under the circumstances. One "lodsysed" developer told me he generates about $70 per month with his game. He figured that if he acceded to Lodsys's royalty demand, the total cost would be in the tens of dollars. The cost of advice from a patent attorney is in the hundreds of dollars per hour, and even an initial analysis of this issue takes many hours, not just one. That's why for most developers there really isn't any reasonable alternative to blanket coverage from their platform makers (Apple, Google, RIM).
I plan to blog a lot less about NPE issues
I previously said on Twitter and Google+ that I'll generally do a lot less reporting on non-practicing entity (NPE) issues (such as Lodsys) in the future since there's so much going on now between large operating companies.
This blog has become much more popular than I ever thought it would, and that's also because the topics I cover are of interest to a rapidly-growing audience. Recently, traffic almost doubled on a monthly basis, for three months in a row. It's obvious that traffic can't continue to grow exponentially -- nor can my number of Twitter followers triple every three months (as it just did). The importance of patents to the mobile devices industry became very apparent to many people due to some major events: Apple's settlement with Nokia, the Nortel patent auction, the ITC's initial determination finding HTC to infringe two Apple patents, etc.
I still have to update several of my battlemaps that visualize major disputes. There are also some other topics related to those major disputes and transactions that I want to cover. So I have to make some choices, including tough choices.
I'm originally a programmer, and that's why I personally cared very much about the Lodsys type of issue. I saw a need to counter various attempts by some people to mislead the app dev community. I told people the truth, which is that for 99% or more of all app devs it's simply not a responsible choice to waste time, money and energy on high-risk legal fights with trolls.
This blog is my personal blog. Only I decide which topics I write about, and which positions to take. Blogging about Lodsys was a personal priority. But with all that's going on now, I have to face the fact that I'm in the consulting business and none of my clients ever asked me questions about Lodsys, while I get many questions about the long-term impact of intellectual property issues on the market shares of large players, on the state of affairs in the lawsuits involving large players, on Google's proposed acquisition of Motorola Mobility, and on possible acquisitions of patent holding companies such as InterDigital.
As long as it was possible to cover those "big company" issues and additionally report on Lodsys, I tried to do both. At this point there's too much work to do, and as much as I regret it, I won't be able to focus on Lodsys.
I may still report on it every once in a while if something extremely important happens and when I find the time, but I won't follow the various Lodsys lawsuits and assertion letters in detail.
At this point I think it's very likely that Apple's motion for an intervention will be granted, but it's not a solution in and of itself. I think it's somewhat likely that Google's reexamination requests will result in "first Office actions" by the USPTO regarding those patents, and the USPTO may very well reject those patents on a preliminary basis, but a final rejection will probably take years and is not guaranteed to happen. It seems that Lodsys continues to pressure app developers into license agreements. I believe at some point Lodsys will announce such license deals either on its website or in a court filing. Unfortunately, there's also a significant risk that we may at some point -- probably within a matter of months -- see another Lodsys lawsuit against a long list of app developers who refused to pay. This sad story will continue, and I'm sure there will be media reports on major developments. Again, it's still possible that I will write about it every once in a while, but not nearly as much as during those past few months, for the reasons I explained. Thank you for your understanding.
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