More on Lodsys, apps and software patents

More interesting developments in the Lodsys/app developers spat (more on that here): now Apple has got involved.  Yesterday, Apple wrote to Lodsys asking it to withdrew its threats against a number of iOS app developers. You can read the full letter here.

Apple’s arguments were three-fold:

(1) The patent licences which Lodsys has granted Apple cover both Apple and its app developers – therefore Lodsys has no basis for arguing patent infringement by any app developers, because they already have the right to use Lodsys’ patents.

(2) Based on the limited evidence in Lodsys’ letters to app developers and on its site, all of the allegedly infringing acts take place via Apple products and services (e.g. the App Store), not on app developer products and services (e.g. the app developers’ apps).

(3) Lodsys’ claims are barred by the legal doctrines of patent exhaustion and first sale. Very basically, the argument here is that, once a product which contains your IP rights has entered the market, you lose certain rights to try to control how that IP is used. Otherwise, people who actually turn the IP into valuable products would forever be under the control of the IP owners (more detail here).

Overall it’s a very measured letter, which doesn’t issue anything like a threat to Lodsys but makes it clear that Apple is on the app developers’ side.

So what?

The ball is now ofc in Lodsys’ net. This letter doesn’t change anything in terms of Lodsys vs the app developers – Lodsys is still free to pursue legal action against them if it likes, or just to try to get a quick cash settlement from them. BUT, if that legal action were to go ahead, two things have now changed:

(1) The app developer can just adopt Apple’s legal arguments against Lodsys; and

(2) More importantly, if Lodsys was to take legal action against app developers there is a stronger possibility that Apple would join in on the app developers’ side (though that is far from clear).

This doesn’t really change the wider issues with software patents…

If Lodsys does now back down, it would largely be because Apple has demonstrated the weakness of Lodsys’ position – which is good for the affected app developers.

But what happens the next time someone comes along with a better software patent – perhaps one that hasn’t been licensed by Apple or one of the other mobile manufacturers? Or maybe one games company starts sending cease and desist letters to its rivals based on a patent it has just been awarded? In other words, I don’t think we’ve seen the last of software patent controversies in the mobile or games worlds just yet…