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Full text: Apple Legal's letter to Lodsys
- rvanniekerk 15y agoBravo Apple, bravo.
- morphoyle 15y agoSo basically, Apple fully supports software patents so long as it benefits them. When another company wants money for a BS patent, it's a travesty. You gotta love the way business works.
- daeken 15y agoApple already licenses the tech, this is not a fundamental patent issue at all.
- morphoyle 15y agoI think you are all missing the irony here...
- bradleyland 15y agoWhat irony? Apple licenses thousands of patents in both directions. As does Google, Microsoft, Facebook, and anyone other major player in the tech industry.
- bmm6o 15y agoIf you have something to add to the conversation, could you please just say it?
- EGreg 15y agopatents are mostly for big boys to throw their weight around that is what is happening did you see how many people on HN (who are coders) want to abolish software patents?
- VengefulCynic 15y agoHardly. Apple isn't claiming the patents are invalid or that software patents in general are invalid - they're simply claiming that Lodsys is trying to get iOS app developers to pay for something that Apple has already bought (and been given rights to license to the iOS developers).
- rbanffy 15y ago> something that Apple has already bought Implying they support software patents.
- ugh 15y agoThat’s ridiculous. I can be opposed to the current income tax rate while still paying all my taxes. Observing the law should not be confused with endorsing the law.
- rbanffy 15y agoYou seem to believe Lodsys patents are as unavoidable as the taxes you pay. That's a funny idea. They are not. Apple could have taken Lodsys to court for their patents were, in fact, quite feeble. Now, thanks in part to Apple, Lodsys has enough money to litigate. The only way to crush a troll is if everyone refuses to pay extortion for worthless patents. Without a source of easy money, the troll dies.
- ugh 15y agoApple’s lawyers seem to believe that licensing those patents is unavoidable or at the very least that not licensing would cost more than licensing them. You might disagree with that interpretation of the law but you should never claim that it’s an endorsement of software patents. I do not know Apple’s stance on software patents but I simply cannot see how Apple’s actions in this case can be interpreted as revealing Apple’s stance on software patents in any way.
- 15y ago
- kenjackson 15y agoApple has a long history of supporting patents. In fact in a keynote that Jobs gave a few years back one of his lines was something like, "And we've patented this up and down" which was followed by loud cheers. Apple is a very strong believer of HW and SW patents.
- guptaneil 15y agoHe said that when announcing the iPhone because Apple failed to properly patent the iPod when it was first released, and subsequently got tied up in a lot of litigation and licensing fees when other companies started trolling them. If anything, Apple hates the patent system, but is forced to play the game.
- kenjackson 15y agoI'm not sure if this is historically accurate. See: http://www.techdirt.com/articles/20070117/191446.shtml http://www.techdirt.com/articles/20070117/191446.shtml A lot of people believe Apple used its patents, for example, to block Android from getting certain features. There's also speculation that MS spent a lot of time dealing with legal issues before WP7 -- which is why WP7 has different design decisions in so many places Apple has patents -- and one reason it was so late after WM6.1. It's speculation, but it sounds like Apple may have used its patents as a way to stop competition on other carriers. Is that good or bad? I don't know, but it's legal. And note that having patents doesn't protect you against trolls. Trolls don't care as they usually don't have product. Patents are only defensive against other actual product companies.
- guptaneil 15y agoI haven't read anything about Apple proactively blocking other companies, but it's believable that post-iPhone Apple is less shy about pushing the competition around a little. I know they did protect their multitouch gesture patents, which is why Android couldn't have pinch to zoom for a while. Regarding the accuracy of my comment, see http://www.macworld.com/article/46460/2005/08/ipodpatent.html http://www.macworld.com/article/46460/2005/08/ipodpatent.htm... for a quick summary of how Microsoft patented a key aspect of the iPod's navigation UI 5 months after Apple released the iPod and then demanded licensing fees. Apple ended up settling for $100 million. This is an actual product company. The article that you linked to, while interesting, is purely opinion. Its argument hinges on the assumption that exclusivity with AT&T was a bad business deal for Apple, which I would strongly disagree with. I didn't like the lock-in as a consumer, but the deal was excellent for Apple because it gave them control over the carrier in a way other phone manufacturers had only dreamed of until that point.
- sipefree 15y agoI'm sorry to burst your bubble, but really anyone who wants to get into this game has to play by the rules. Even a tiny startup company full of web 2.0 rockstars who hate software patents will be advised to patent as much as they can, because if they don't, some other count will come along and patent their stuff from under them and force THEM to pay. Pretty much nobody likes the software patent system except for software patent trolls, and as such we have to deal with it. Software patents won't go away until bad people go away.
- Groxx 15y ago>Apple is undisputedly licensed to these patent and the Apple App Makers are protected by that license. That's a very good thing to hear. And extremely definitive. I'd imagine devs are breathing a lot easier now.
- sc00ter 15y ago>That's a very good thing to hear. It would be but for the distinction between "undisputedly" and "undisputably". All this says is that it hasn't been disputed, not that it can't be.
- sigzero 15y agoI think Apple meant something very specific as any other reading doesn't make sense. They are saying it is "above dispute". Apple knows what they licensed.
- ars 15y agoThey aren't saying "above dispute", they are saying "has not been disputed" (and implying that it will not be disputed, but it could).
- xsmasher 15y agoIt's actually a little scary for non-ios devs; isn't Apple recognizing that the patent is valid?
- exit 15y agoi can't believe they actually pay lodsys already. what a joke.
- daeken 15y agoWhen you're at Apple's scale, license costs for things like these are a rounding error compared to the cost of a legal defense, even if you win. It's cheaper to pay them off.
- rbanffy 15y ago> license costs for things like these are a rounding error Paying a troll is like dumping toxic waste on your water supply. It's, at minimum, inconsiderate. By doing that, they further enabled this troll to go after everybody else.
- statictype 15y ago>Paying a troll Considering that Apple has already licensed the patent before being sued, why do you call them a patent troll. How as Apple to know that they were going to go after other developers? It could have, for all you know, been a legitimate patent licensing issue - unless you think anyone claiming infringement on any software patent is a patent troll - which is a stance I don't really disagree with, but that's a separate argument, I guess.
- toadkick 15y agoThey didn't, they licensed the patents from Intellectual Ventures years ago. Lodsys acquired the patents after the fact.
- SwellJoe 15y agoIntellectual Ventures is also a patent troll. It's just higher profile and has people involved that had some level of existing respectability at some point in the past.
- RyanKearney 15y agoAnd there goes Apple using the word App/Apps generically again. Not exactly helping their case against Amazon.
- scott_s 15y agoI just re-read it paying attention to how they use the word "App," and I don't think their use is generic. Every time they use the word, they are referencing either developers who make applications for their devices, the applications for their devices, or their store.
- RyanKearney 15y agoI'm not too sure, this is the line that really stood out to me: > and delivery of applications (or “Apps”) Basically making a direct relationship between the word application and apps. Either way, I think the whole App Store argument is ridiculous.
- scott_s 15y agoThat was the only line that gave me pause, but that's actually where they define what "Apps" means: applications for their devices.
- dhimes 15y agoThey shouldn't win that one anyway. My TI calculator has an "Apps" button.
- juiceandjuice 15y agoIf I was a conspiracy theorist, I'd say some of this looks awfully convenient, and maybe even well timed, for Apple. "See, the 30% we charge you isn't so bad after all, is it?"
- cheald 15y agoI sincerely don't think that it's a stunt by Apple, and to claim that it is would require a fairly myopic view of the state of software patents today. That said, the "conspiracy theory" falls apart because this is ultimately self-serving by Apple; in-app purchases translate to money for them, and if developers are too scared to include content purchasing options in their apps (since in-app is the only permitted method, natch), it means a direct hit to Apple's bottom line. It isn't altruistic towards developers, so it's silly to see it as a justification of Apple's 30% cut.
- juiceandjuice 15y agoApple Exec: People are pissed about the 30% in-app thing, what should we do? Other Apple Exec: Add value to it. Apple Exec: How do we do that? Other Apple Exec: Show people that if they didn't use our methods and lose their 30%, they'll get sued for licensing fees for an in-app purchasing patent and probably lose it anyways. Apple Exec: "Hey Lodsys, we're already paying you money, but could you do us a favor real quick..." I'm not claiming this is what happened, because I sincerely don't think it is what went down. I'm just illustrating a theoretical and likely fictional path.
- 15y ago
- krschultz 15y agoThe letter itself doesn't do much for the legal defense of app developers vs Lodsys, it is only Apple's opinion and Apple wasn't the one being threatened, but it does show that Apple plans on throwing its weight around to defend the app makers. And that is all we really need, becuase I sincerly doubt Lodsys really wants a full on legal battle with one of the most cash rich companies in the world.
- robterrell 15y agoI'm not sure it's all we need. Lodsys may not prevail, but it has shown other trolls the way. What about patents from companies Apple doesn't have a license for?
- regularfry 15y agoThey've always been a threat. The reason Lodsys were interesting was because they presented a potentially new and interesting business model: license to the few big guys, squeeze the legions of little guys.
- caf 15y agoPatent trolls meet the Long Tail :/
- tptacek 15y agoIt's a cease and desist letter. It implies that if Lodsys continues trying to enforce patents Apple has licensed, Apple will sue them.
- dhimes 15y agoWhat I find interesting about this is that there is nothing in the Apple letter that Lodsys would not have anticipated while deciding whether to make claims against the developers. Do they have a response ready? Or were they, in fact, simply trolling, and are suprised that Apple got involved? What had me annoyed now has me interested.
- brudgers 15y ago>"Lodsys’s threatened claims are barred by the doctrines of patent exhaustion and first sale. As the Supreme Court has made clear, “[t]he authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use of the article." I find it interesting to see Apple invoke the First Sale Doctrine given the restrictions which it places upon its hardware (e.g. iPhone).
- bradleyland 15y agoFirst sale applies to copyright, not patent licensing. With copyrighted material, you can "transfer" it to a third-party. A patent license typically spells out explicitly whether the patented material may be used for "distribution" to third-parties. This matter will come down to whether or not Apple's existing license extends to third-party developers, based on the language in the patent license agreements.
- brudgers 15y agoApple's letter [as presented] explicitly argues first sale doctrine.
- bradleyland 15y agoI missed that in my first read, but I [mistakenly] thought that first sale only applied to consumers, not business licensing agreements.
- gte910h 15y agoFirst sale actually applies to both: http://en.wikipedia.org/wiki/Exhaustion_doctrine http://en.wikipedia.org/wiki/Exhaustion_doctrine
- cyanbane 15y agoIf Microsoft pays a patent holder for the licence to use a patent for microtransaction purchases within the windows operating system, and someone writes a windows app that utilizes the method, under this argument is it the same as long as Microsoft controls the transaction (ie we payed once, and it applies to our app makers)?
- extension 15y agoThat depends entirely on the terms of the license.
- SwellJoe 15y agoThere are several mentions of Apple servers and Apple services and Apple APIs. If Microsoft were providing all of the infrastructure for said micropayments in your hypothetical microtransactions service, then yes, it would be a comparable situation. If not, and the infrastructure is not Microsoft's, I don't see how it would be the same.
- mattyohe 15y agoI imagine Apple's lawyers always begin letters with "Dear Mr. Small"
- rbanffy 15y agoJust imagine the abuse Mr. Small had to endure as a kid... No surprise he became a patent troll...
- UtestMe 15y ago“[t]he authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and prevents the patent holder from invoking patent law to control postsale use of the article.” Quanta Computer, Inc. v. LG Elecs., Inc., 553 U.S. 617 (2008). In plain English: because Apple bought the patent from Lodsys, Lodsys cannot ask for any benefit that might be related to the patent. Period.
- ghaff 15y agoApple licensed the patent. Their claim is that the license covers the relevant downstream use.
- arapidhs 15y agopatent wars instead of standards...why
- UtestMe 15y agoI heard Marco Arment at a 5by5 Show also saying it's easier to pay 0.5% instead of going into a long and expensive trial. I believe it's not necessarily a troll patent issue that Marco was talking about, this is what trolls are meant to do, anyway; I think it's an issue with the law itself and its enforcement. Could you believe this some 40 years ago: "I'm going to pay this parasite tax just because I cannot be protected by anybody"? Try "associate with" instead of "protected by"!
- nickolai 15y agoIts good to see Apple make stand for its App store developers, but where's the iFlameThrower? This looks a bit too nice a response for the petty shakedown run lodsys tried to pull off. Oh well... I guess Apple does not have to speak loudly to be heard.
- jerf 15y agoThe tone of this letter, combined with grellas' comments above, give me the troubling feeling that Apple is not certain they would win. Only two arguments are made, one based on terms we're not privy to and as grellas pointed out you'd expect them to quote if it's solid, and one based a doctrine that the Apple license is extended to the app developers by virtue of the app developers using the licensed product, but there's enough ambiguity in the law in terms of what software "contains" (for lack of a better word) other software that I don't think I would have a hard time arguing that the app instances are still legally separate instances of the patented capability. I could argue either side pretty forcefully if I wanted to. IANAL but by lawyer standards this strikes me as very, very tepid. If I were an app developer, I would at least feel a bit better that Apple has acknowledged the problem and has taken some position on my side... but I wouldn't feel much better.
- grellas 15y agoA few thoughts: 1. Nothing in the letter commits Apple to defend the developers or to hold them harmless. Legally, Apple does not have to do this. One can only hope that its self-interest in protecting its app-store ecosystem will be enough to cause it to do what is right. For now, Apple is saying only that it will fully defend its "license rights." One can read more into this than is stated but that is all that is stated (of course, Apple's throwing its weight behind developers even at this level is no small thing). 2. The letter does not quote the license agreement in any way. Normally, if there is something definitive in such a document, it is put front and center in a letter of this type. This could mean that the license language is not as definitive as the tone of this letter might suggest. Only time, and a detailed review of the license language itself, will tell on this point. 3. It is plain that Apple wants to do the right thing for its developers. Yet the situation is trickier than that. As of now, Apple has no legal obligation to defend or hold them harmless, and that step is an order of magnitude greater than that of saying it will merely defend its license rights - and hence the hedging in the letter. If the goal of the patent system is to promote innovation, then this case is Exhibit A for how it is failing. Thousands of patents are gathered up in a portfolio held by an IV affiliate and licensed in bulk ("monetized") to big players such as Apple, Microsoft, Google, etc., who in turn believe that they have clear rights to build systems around them. But the patents are "monetized" again to lesser players with shadowy relations to the original IV group, who in their turn try to "monetize" them further by attempting to double-dip with the original licensees based on limitations in the original licensing language. At each step, threats of lawsuits abound and nowhere can one find even one example of a patent developed by a company for its own innovative uses. Instead, we have the equivalent of shadowy trafficking in intangibles that are now being used, not to encourage innovation, but to attack the very developers who are trying to innovate. Positively Kafkaesque.
- SoftwareMaven 15y agoFrom the letter: 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. The letter explicitly states they think their rights include being able to let developers use the technology. Because Lodsys’s threats are based on the purchase or use of Apple products and services licensed under the Agreement, and because those Apple products and services, under the reading articulated in your letters, entirely or substantially embody each of Lodsys’s patents, Lodsys’s threatened claims are barred by the doctrines of patent exhaustion and first sale. At this point, isn't Apple saying there is nothing to hold developers blamess for? 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. This seems pretty clear (if not within full legalese) that Apple will go after Lodsys if they don't retract the letters. Bigger question for me (as a legal noob): What is Apple's recourse? Is it to sue Lodsys for breach of contract? Would a cease and desist request be part of that?
- emehrkay 15y ago> The amount of skill that you have in a certain area is proportional to the amount of work that you put into it. There is no such thing as a 'creative' or 'technical' type. The reason I was bad at art starting out is the same reason we are bad at anything starting out. One day, I sat down and put in hours of serious work, refusing to stop until I liked the results. And, gradually, I got better at art. I tell my son there is no such thing as talent, just understanding. This keeps the As coming in, dude is awesome