Well that makes a change. Lodsys, instead of hiding behind lawyers, have issued a
very public Q&A on their approach to iOS vendors offering in-app purchase. Even if you don't agree with software patents at all, it's refreshing to see a company like Lodsys trying to address the concerns of the tech community head on. In it they
confirm the reading of their patents I gave yesterday and that it is indeed
US7620565 they are seeking to charge the app vendors licensing fees to use. Indeed they have published the ballpark of their proposed license fee which they say is constrained to %0.575 of US app revenues for apps using their "invention."
While I'm impressed they have faced the tweet-blog-o-sphere head on, and applaud the fact they are seeking reasonable rather than extortionate remuneration, there are as a result of their Q&A some further points to be raised. Anyone who has read my earlier posts on software patents will know that whilst I'm highly critical of them,
I don't think the concept is entirely meritless and my criticism is directed towards the current standards of examination and the fact for several years there was opportunistic in-filling of the patent database and that standards for has been allowed to pass as a novel technical effect have been nowhere near strict enough. Indeed the standards have been so derisible, the whole concept of software patents has possibly been irrevocably damaged in their eyes of the wider tech community.
So here are the comments I have against the Lodsys, after having read their Q&A (again I have to add the usual disclaimer. Though I do have some experience with Patents, I'm not a patent lawyer and you must use your own judgement rather than follow my advice. I'm not responsible for any decisions or business decisions you may make as a result of reading this):
1) The lodsys patent is a case in point. The threshold for examination for this one appears to have been inexcusably low. Looking again at the first independent claim, which practically speaking sets the footprint of this patent:
A unit, comprising: a memory; a transmitter; and a processor, coupled to the memory and to the transmitter, configured to: monitor a product for an occurrence in the product of a trigger event of a predefined plurality of trigger events, increment a counter corresponding to the trigger event upon detection of the occurrence of the trigger event, cause the display of a user interface, configured to probe for information regarding a use of the product, if the counter exceeds a threshold, cause the memory to store an input received from the user interface, and cause the transmitter to transmit the input to a server.
The problem here is that if you remove the phrase "regarding a use of the product," the claim still reads perfectly well and there is nothing technically new and that has not been seen literally thousands of times before the 2003 filing date [edit: though there are continuations which would require some study to determine the practical date which prior art needs to precede], that wasn't clearly done by a multitude of e.g. client server databases. However the phrase "regarding a use of the product" is a pure social (e.g. non technical) description of the use of information. As such adding it in makes no additional contribution to a novel technical effect. In other words, the patent is not novel and it doesn't add anything to the pre-existing state of the art. It's simply bad.
2) Given the patent is, in my judgement, bad, it is legitimate to wonder if the Lodsys strategy and apparently reasonable license terms are purely a device to avoid ever having it challenged and then, as a result, struck down.
3) I would like to understand the licensing arrangement Lodsys refer to, where Apple have licensed this patent. I wouldn't be at all surprised if it was licensed bundled with other patents in a strategic portfolio of which Lodsys is just one of the contributors. I wonder, if Lodsys had approached Apple, with this one patent in hand and asked for a license, would they have got away with anything other than being unceremoniously ejected from the building. I believe the reasonable tone they have adopted may be no more than a clever strategy based on their own understanding their patent is weak. I think the last thing they want is for it to be challenged, so they are opting to take a low sum from as many people as possible. Pointing out Apple has licensed the patent is a clever strategy for a company who may be aware of an essential weakness.
4) If they are authentically reasonable (and I don't rule out that they believe they are being entirely reasonable and don't share my view the patent is weak - everyone is entitled to an opinion - even one that corresponds with making money from others against with a demand against their preference), then perhaps they could add a clarification as to whether they believe this covers all in-app purchase. My analysis (
in yesterday's post) is that it quite clearly doesn't. However they are adopting what is probably a deliberately vague line on the scope of their patent's application to existing in-app purchase apps. nowhere do they acknowledge it doesn't affect every in-app purchase design. FUD is to their advantage on this point and will result in more businesses taking licenses than need to.
