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Apple Tells Lodsys That iOS Developers Are Covered

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Ten days after many iOS developers were informed by a company called Lodsys that their usage of in-app purchasing for app upgrades infringed Lodsys’s patents (see “Small iOS Developers Targeted over In-App Purchase Patents,” 13 May 2011), Apple Legal has weighed in on the matter, sending Lodsys a letter that unequivocally asserts both Apple’s license of Lodsys’s patents and how Apple’s license covers iOS developers.

In the letter, which TidBITS obtained a copy of and which Macworld has posted online, Apple General Counsel Bruce Sewall states:

Apple is undisputedly licensed to these patent [sic] and the Apple App Makers are protected by that license. There is no basis for Lodsys’ infringement allegations against Apple’s App Makers. Apple intends to share this letter and the information set out herein with its App Makers and is fully prepared to defend Apple’s license rights.

Sewall goes on to address Lodsys’s “infringement contentions,” which Lodsys apparently sent only to iOS developers and not to Apple. In particular, he points out how the iOS APIs, iOS devices, and App Store rely on Lodsys’s patents, which Apple is “expressly licensed” to offer to iOS developers.

That’s a problem because of the doctrines of patent exhaustion and first sale, which basically state that “the authorized sale of an article that substantially embodies a patent” prevents the patent holder from controlling post-sale use of the article. This was most notably addressed in the 2008 Supreme Court ruling in Quanta Computer, Inc. v. LG Electronics, Inc. In other words, Lodsys can’t license the patents to Apple and then go after iOS developers using the Apple products and services that embody those patents.

Summing up, Sewall writes:

Therefore, Apple requests that Lodsys immediately withdraw all notice letters sent to Apple App Makers and cease its false assertions that the App Makers’ use of licensed Apple products and services in any way constitutes infringement of any Lodsys patent.

Obviously, the entire situation isn’t over until Lodsys says it’s over, but the iOS developers I spoke with are breathing easier knowing that Apple Legal has said it will defend Apple’s license rights, which include embodying licensed patents in the iOS ecosystem.

Interestingly, it’s possible that this is the first Apple has heard of Lodsys. In the FOSS Patents blog, which examines patent issues with a focus on the competitiveness of free and open source software, Florian Mueller suggests that Apple’s license came about because the Lodsys patents were temporarily owned by Nathan Myhrvold’s Intellectual Ventures. Apple, Google, and Microsoft are all investors in Intellectual Ventures, and licensees of the company’s patent portfolio.

 

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Comments about Apple Tells Lodsys That iOS Developers Are Covered

Michael Cohen  2011-05-23 14:26
This is excellent news. And Apple's letter is a pretty good example of clear legal writing.
Doppleherz  2011-05-23 14:51
I am glad for the developers. As for Apple, I never had a doubt they would respond and defend the developers. The letter is quite clear: if you (Lodsys) want to dispute this patent, then you will have to deal directly with us (Apple.)
Brian S.  2011-05-24 10:00
My confidence in Apple's prompt defense of developers was not as sanguine, although I'm delighted to read the news!
Ken Nellis  2011-05-23 18:05
I've been impressed over the years with the consistently high level of grammatical editing in TidBITS, but "breathing easier"? Please, it's breathing more easily.
artMonster  2011-05-23 19:28
There just Thinking Different ;)
Lou Krieg  2011-05-23 20:22
"They're" ... just keeping my 8th grade English teacher happy.
Lou Krieg  2011-05-23 20:21
Go easy on the TidBITS editors... is anyone bothered by the Apple counsel's use of "undisputedly" which, at least as far as OS X's Dictionary app is concerned, is not a word. Actually, the wording of the letter is so poor that I think it might not be genuine. Or we live in illiterate times... wait... the Internet... what am I thinking!
Adam Engst  An apple icon for a TidBITS Staffer 2011-05-24 06:36
Yes, I did notice that during my proofing pass, but decided to leave it and not [sic] it as I did the singular "patent" that was an obvious typo.
Adam Engst  An apple icon for a TidBITS Staffer 2011-05-24 06:35
Sorry! I was writing awfully quickly under deadline yesterday, and because of the late deadline, no other editor saw that text.

Interestingly, which looking at this, I noticed that "breathing easier" gets 791,000 hits on Google, whereas "breathing more easily" only gets 234,000.
dcsohl  2011-05-24 13:22
You seem to be implying that "easy" cannot be used as an adverb. "Easily" is, indeed, the adverbial form of "easy" (the opposite of difficult"). But "easy" itself may be used as an adverb meaning "without worry or care". See Merriam-Webster's definition of "easy" as an adverb: http://j.mp/jkBtbl And consider phrases like "take it easy" or "go easy on him".

Nobody's suggesting that the app developers were actually having a hard time breathing. But now that Apple has stepped up to the plate, they can relax and be without worry or care.