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Apple Tells Lodsys That iOS Developers Are Covered

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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