Lodsys making enemies besides Apple as patent challenges begin

in-app-licensing

Lodsys, the patent holding firm targeting iOS developers individually after deciding it isn’t making enough money on the licenses it already holds from Apple , Google and other large tech companies, is on the receiving end of some legal action Wednesday. A Michigan analytics firm called ForeSee Results Inc. has filed a declaratory judgment suit against the four patents Lodsys owns, according to FOSSpatents, because its clients received threatening letters like those sent to independent app developers by Lodsys.

But ForeSee’s clients aren’t small app developers with limited means to defend against patent infringement claims and little choice but to agree to demands for licensing fees; they’re major companies with lots of capital and legal expertise at their disposal, including Adidas, Best Buy and WE Energies, and with this declaratory judgment filing, ForeSee has gone on the offensive against Lodsys on their behalf.

FOSSpatents’ Florian Mueller explains that a declaratory judgment, which doesn’t incur any penalties but is crucial to setting precedent, is a smart way to begin the process of potentially invalidating all of Lodsys’ patents. ForeSee filed suit in Illinois before Lodsys actually filed against any of its clients, too, which means that Lodsys doesn’t get to set the stage in the Eastern District of Texas, where the company has filed against iOS developers, and where the law favors the patent holder. Mueller also notes that McDermott Will & Emery, a “top-notch law firm that does a lot of work for major technologies” will be representing ForeSee. The law firm previously engineered a successful patent settlement for its client Creative Technology against Apple, in fact, resulting in a $100 million payday for Creative.

I asked Chicago tech and intellectual property attorney Evan Brown of Internet Cases what he thought about his filing, and he suggested that it could be a litmus test to see just how far Lodsys is willing to take this thing:

A declaratory judgment action like this gives Lodsys the chance to test its own resolve, whether it wanted to or not. We have to think that it considered the possibility of a declaratory judgment action (any reasonable party that sends a threatening letter should be ready for that risk). But given that Lodsys was generally targeting the smaller fish rather than Apple itself, one is left to think it may not have thought it through as much as it should have. Needless to say, Lodsys probably wishes things were going more smoothly for it, what with Apple’s swift and firm letter talking about patent exhaustion, and now this lawsuit. Maybe Lodsys might realize it’s better to actually use a technology rather than just sue others over it.

Apple’s response to Lodsys’ initial threats only prompted Lodsys to step up its timeframe and sue seven independent app developers ahead of schedule, and we’ve heard nothing from Cupertino on the subject since. But Craig Hockenberry, one of the developers behind Twitterific, tweeted just prior to WWDC that affected devs can’t talk about what’s going on, so presumably Apple is acting behind the scenes.

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