Clearly, plenty of developers are getting fed up with Lodsys, the patent-holding company that’s demanding royalty payments from small mobile app developers. But what can they do about it, other than hope that Apple’s intervention yields some results? Mike Lee thinks he has the answer.
Lee, an Amsterdam-based app developer, said yesterday that he’s planning to form a coalition of app makers dedicated to fighting off Lodsys and other patent trolls, sending a message to stay away from small app developers. In his blog post, cheekily titled patent-style as a “Method and Apparatus for Kicking Ass,” Lee wrote: “Let App Makers be as the ants of East Texas, minding their business until someone invades their anthill. Then Swarm! Swarm! Swarm! We will let the patent trolls know: if you attack one indie, you attack all indies, and we will file every motion we can against you, we will attack your patents, and we will show you for the mafioso thugs you are.”
The three-pronged strategy will consist of taking direct legal action against Lodsys; a lobbying campaign in Washington D.C. to change the patent system and make it work better for small developers; and “a massive media marketing campaign to let the public know that small businesses, jobs, and the economy are being threatened by parasites.” Lee suggests that a recent NPR show on problems with the patent system, titled “When Patents Attack,” may have “primed the pump of public awareness” on abuses of the patent system.
To fight the legal parts of the battle, Lee and his allies have retained Michael McCoy, a Texas IP lawyer who will help create what the developers have termed the “Appsterdam Legal Defense Fund.”
It’s tough talk, but the big challenge will be raising enough money to stick out patent battles that can be unmercifully long-lasting and expensive. Even getting patents reexamined at the patent office costs can run legal fees into the six figures; and invalidating patents through litigation can cost millions. The Electronic Frontier Foundation’s patent busting project-created seven years ago to knock out some of the worst patents out there-has met with limited success. And even though EFF is probably the best-known non-profit working in this space, the group has had to stick to asking for Patent Office reexamination proceedings rather than litigation, because the cost of wiping out patents in court is prohibitive.
While the battle is going to start with a fight against Lodsys, Lee has already said it won’t stop there. “Our ultimate goal is to get people to stop suing indies. It’s just that people have to understand that companies like Lodsys are shells, and that IV [Intellectual Ventures] is the real deal. There are a number of ways to attack IV. One way is to get to their investors. If IV is seen as facing significant challenges in the courts and causes a media circus and public shaming at the same time, investors may pull their funding.”
As for the lobbying aspect, Lee says what is needed is “a law that allows small software companies to opt out of the patent system.”
That might sound like music to the ears of software engineers, but it’s worth remembering that in 2007 and 2008 the tech industry hit massive resistance when pushing for reforms to the patent system that were much more modest than what Lee proposes-particularly from pharma, an industry that always seems to get the ear of Congress.