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Lodsys is not “confused on the law.” Lodsys’s argument is confused on the law, Lodsys the entity is perfectly aware of the law and is attempting to “exploit” th

Lodsys is not “confused on the law.” Lodsys’s argument is confused on the law, Lodsys the entity is perfectly aware of the law and is attempting to “exploit” the law and the system. It’s a clear case of “Gotcha, you neglected to get wording protecting your developers, so even though we all knew what you thought you were licensing, we’ll try to screw you just because it doesn’t cost us that much to try."

sunchild 15y ago
I'm having a hard time understanding how the lawyers who negotiated Apple's license never raised/confronted this issue.
- raganwald 15y ago
  I imagine they did, but Lodsys hope to convince a judge that the wording chosen doesn’t say what everyone else on the entire planet thinks it says. Why else would Lodsys be working so hard to keep Apple out of the lawsuits? They don’t want to have this debate with Apple’s lawyers, they want to have this debate with whomever the small ISVs can afford. If this lawsuit was in “good faith,” they’d welcome Apple to the party. If they had the law on their side, Apple would have no choice other than allow their ISVs to be raped or pay Lodsys a shakedown fee to stop suing the ISVs.
  - ahi 15y ago
    From what I can tell, Apple didn't get its license from Lodsys. It's possible that Lodsys doesn't even know what Apple's license consists of, and thus the requests for discovery. I think it looks like Webvention screwed Lodsys over, selling them a patent without informing them that all the good targets have been licensed already. When this hit everyone was wondering why Apple wouldn't get coverage for their developers locked down. It seems they did, but no one told Lodsys.
    - raganwald 15y ago
      No they didn’t get their license from Apple, but that doesn’t mean Webvention screwed Lodsys over. I suspect that Lodsys have an odious but well-understood plan to troll companies that are thought to infringe, but saw this as a fairly low-risk opportunity to try for a big windfall. I think they’re hoping for some hush money from Apple, but if they don’t get it they’ll go after smaller fish that haven’t played the shakedown game with Intellectual Ventures. For example, if someone gives away free software for some kind of Open Source store on Linux with whatever it is they think infringes their patents, they’ll go after all the developers who use it, and there’ll be no umbrella licensee to intervene.
Tyrannosaurs 15y ago
Is that really what they're doing though? The reason I ask is that their attempt to get discovery on the Apple license suggests that they don't know what the license covered (remember it was taken out not with Lodsys but with a previous patent holder). If that's genuinely the position then they don't know what sort of case they've got. At the very best it would seem that they are hoping that there is enough wiggle room in the license to give them something but the request points to this being, at least to some degree, a punt as much as a clever legal move. But to me what this really looks like is what we suspected it was all along - a legal shakedown of small, vulnerable developers without the finances or expertise to fight it. Lodsys may or may not have a water tight legal case but from what we're seeing here they're certainly not geared up for a hardcore legal fight rooted in a solid basic case. Instead what they're doing seems to be throwing everything they can at it regardless of merit and hoping that something sticks. In some situations that's a perfectly reasonable strategy - essentially if you're trying just to delay things and rack up costs for the other side to make settling look appealing - but against Apple who have enough money to fight this from pocket change and a vested interest not just in winning but in crushing you to put anyone else off the idea of ever trying this sort of thing again?
- raganwald 15y ago
  Well obviously I’m speculating out of my ASSets, but legal discovery goes beyond “show us the contract.” They get to grill the lawyers and managers who drafted the contracts, review emails written about the contracts, and so forth. they ought to get a look at just about everything that might come up as evidence in a suit. So I don’t know for sure whether they know what’s in the contract, but I would not say that just because they’re asking for discovery, therefore they have no idea what the contract says.
  - Tyrannosaurs 15y ago
    That's true but at the very least it suggests a weakness in what they have in place at the moment. And what's written in the contract certainly can't be contradicted by anything before it. At best they're going to be able to fill in the gaps. EDIT: I am also not a lawyer but this seems to be relevant: http://en.wikipedia.org/wiki/Parol_evidence_rule http://en.wikipedia.org/wiki/Parol_evidence_rule Essentially where something exists in the contract in writing it can't be amended or contradicted by any other source. What other material can be used for is to prove / disprove validity, provide clarification around ambiguity and so on. That would seem to suggest that Lodsys at the very least aren't confident that the contract as written completely supports their case.

sunchild 15y ago

I'm having a hard time understanding how the lawyers who negotiated Apple's license never raised/confronted this issue.

raganwald 15y ago
I imagine they did, but Lodsys hope to convince a judge that the wording chosen doesn’t say what everyone else on the entire planet thinks it says. Why else would Lodsys be working so hard to keep Apple out of the lawsuits? They don’t want to have this debate with Apple’s lawyers, they want to have this debate with whomever the small ISVs can afford. If this lawsuit was in “good faith,” they’d welcome Apple to the party. If they had the law on their side, Apple would have no choice other than allow their ISVs to be raped or pay Lodsys a shakedown fee to stop suing the ISVs.
- ahi 15y ago
  From what I can tell, Apple didn't get its license from Lodsys. It's possible that Lodsys doesn't even know what Apple's license consists of, and thus the requests for discovery. I think it looks like Webvention screwed Lodsys over, selling them a patent without informing them that all the good targets have been licensed already. When this hit everyone was wondering why Apple wouldn't get coverage for their developers locked down. It seems they did, but no one told Lodsys.
  - raganwald 15y ago
    No they didn’t get their license from Apple, but that doesn’t mean Webvention screwed Lodsys over. I suspect that Lodsys have an odious but well-understood plan to troll companies that are thought to infringe, but saw this as a fairly low-risk opportunity to try for a big windfall. I think they’re hoping for some hush money from Apple, but if they don’t get it they’ll go after smaller fish that haven’t played the shakedown game with Intellectual Ventures. For example, if someone gives away free software for some kind of Open Source store on Linux with whatever it is they think infringes their patents, they’ll go after all the developers who use it, and there’ll be no umbrella licensee to intervene.

Tyrannosaurs 15y ago

Is that really what they're doing though? The reason I ask is that their attempt to get discovery on the Apple license suggests that they don't know what the license covered (remember it was taken out not with Lodsys but with a previous patent holder). If that's genuinely the position then they don't know what sort of case they've got. At the very best it would seem that they are hoping that there is enough wiggle room in the license to give them something but the request points to this being, at least to some degree, a punt as much as a clever legal move. But to me what this really looks like is what we suspected it was all along - a legal shakedown of small, vulnerable developers without the finances or expertise to fight it. Lodsys may or may not have a water tight legal case but from what we're seeing here they're certainly not geared up for a hardcore legal fight rooted in a solid basic case. Instead what they're doing seems to be throwing everything they can at it regardless of merit and hoping that something sticks. In some situations that's a perfectly reasonable strategy - essentially if you're trying just to delay things and rack up costs for the other side to make settling look appealing - but against Apple who have enough money to fight this from pocket change and a vested interest not just in winning but in crushing you to put anyone else off the idea of ever trying this sort of thing again?

raganwald 15y ago
Well obviously I’m speculating out of my ASSets, but legal discovery goes beyond “show us the contract.” They get to grill the lawyers and managers who drafted the contracts, review emails written about the contracts, and so forth. they ought to get a look at just about everything that might come up as evidence in a suit. So I don’t know for sure whether they know what’s in the contract, but I would not say that just because they’re asking for discovery, therefore they have no idea what the contract says.
- Tyrannosaurs 15y ago
  That's true but at the very least it suggests a weakness in what they have in place at the moment. And what's written in the contract certainly can't be contradicted by anything before it. At best they're going to be able to fill in the gaps. EDIT: I am also not a lawyer but this seems to be relevant: http://en.wikipedia.org/wiki/Parol_evidence_rule http://en.wikipedia.org/wiki/Parol_evidence_rule Essentially where something exists in the contract in writing it can't be amended or contradicted by any other source. What other material can be used for is to prove / disprove validity, provide clarification around ambiguity and so on. That would seem to suggest that Lodsys at the very least aren't confident that the contract as written completely supports their case.