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I doubt this really say as much about the merits of Lodsys' case as the EFF proclaims. This is simply an economic decision. As I'll explain below, I think they

I doubt this really say as much about the merits of Lodsys' case as the EFF proclaims. This is simply an economic decision. As I'll explain below, I think they have a relatively strong case. But going to trial is expensive for both sides, and I think Lodsys simply sees insufficient margins in seeing it through. The problem, as the article says, is that even getting to the stage where you can call their bluff like this is extremely expensive, and statistically very few defendants will take it this far. So for the few folks who do stick it out this far, Lodsys can simply drop out and still stay way ahead of the game. As to why I think their case is somewhat stronger than the usual troll: Firstly, it's patents partially survived Google's supposedly "devastating" re-examination request. Although the process is still ongoing, the claims that survived are golden. Those now have an "enhanced presumption of validity", which means if asserted at trial, the defendants would be wise to seek stronger alternate defenses besides invalidity. Secondly, and speaking of alternate defenses: patent exhaustion. Exhaustion is triggered on first authorized sale [1]. I really cannot (and neither can the EFF) comment on this since all the relevant terms on which Apple, Google etc. have a license are secret. Further, since Apple was not allowed to intervene, it seems even less likely a defense. Thirdly, the claims are "vague" only if you decide not to put much effort into understanding how they work. Much like non-lispers complaining about parentheses. I have seen vague claims, and these are downright straightforward in comparison, despite what the EFF's out of context snippets may imply. Also, mentioning fax machines is a non sequitur. If the main function of fax machines in this patent was to act as network components, by the Doctrine of Equivalents [2] they are functionally equivalent to the Internet of today. Heck, it could be carrier pigeons and still be valid. This is not an abuse of the system, and if you want to make it so, you'd need a lot more reform than is likely to happen. I cannot comment on the quality (novelty, non-obviousness, etc.) of the claims since I have difficulty evaluating them in context of the state of the art in ~1992, to which these patents claim priority. (IANAL. Which may also be why I think one solution to this problem is a drastic lowering of attorney fees :-P) [1] http://en.wikipedia.org/wiki/Exhaustion_doctrine http://en.wikipedia.org/wiki/Exhaustion_doctrine [2] http://en.wikipedia.org/wiki/Doctrine_of_equivalents http://en.wikipedia.org/wiki/Doctrine_of_equivalents

mbreese 13y ago
> This is simply an economic decision Right. Lodsys thought that it was too risky for them, so they chose to drop the case. The amount that Lodsys would have gotten from licensing fees would have been more than the amount that it cost to bring the case to trial. So the only reason they would have to dismiss the case would be that they were worried that their patents were at risk. (Note: the risk could have been small, but still enough to worry them.) They have no incentive to drop a case this far into it. Future targets now know that they just have to keep the case going and eventually Lodsys could just drop it.
- throwawaykf 13y ago
  > They have no incentive to drop a case this far into it. If you think of their model as an exercise in gambling, they do have an incentive. Jury trials for patent cases are notoriously hard to predict, and they risked a very real, non-zero chance of reaching a decision that, even if it didn't kill their patents, could cripple their campaign, say, something like "Patents are valid, but iOS apps don't infringe." (Note that jury verdicts in patent cases seldom seem to have much to do with the technical merits of the case.) So their potential outcomes were: A. Drop case: continue settling with small entities for Y revenue going forward with estimated revenue R. B. Favorable decision with X in damages: nice bonus to go along with contiuing revenue R. C. Unfavorable decision: 0 damages as well as very likely loss of continuing revenue R. Say the outcome has probabilities P(A), P(B) and P(C). They likely just assumed some values for these probabilities (actually, lots of empirical data out there these days, and P(B) is quite low)and X and R, and ran the numbers, and they got an expected result that wasn't too favorable. So they chose to minimize their risks, along with the associated rewards. > Future targets now know that they just have to keep the case going and eventually Lodsys could just drop it. Right, but the catch is that for most defendants it's too expensive to even just keep going on. And that's why they'll keep suing left and right and dismissing if anybody gets too close to trial. I don't know if there's any way to stop this campaign unless they slip up. (PS, I was mistaken about the Apple situation. Apple could not intervene because Lodsys settled the cases it was trying to intervene on -- essentially a tactical retreat like this one -- so it doesn't really speak to the exhaustion defense as such.)

mbreese 13y ago

> This is simply an economic decision Right. Lodsys thought that it was too risky for them, so they chose to drop the case. The amount that Lodsys would have gotten from licensing fees would have been more than the amount that it cost to bring the case to trial. So the only reason they would have to dismiss the case would be that they were worried that their patents were at risk. (Note: the risk could have been small, but still enough to worry them.) They have no incentive to drop a case this far into it. Future targets now know that they just have to keep the case going and eventually Lodsys could just drop it.

throwawaykf 13y ago
> They have no incentive to drop a case this far into it. If you think of their model as an exercise in gambling, they do have an incentive. Jury trials for patent cases are notoriously hard to predict, and they risked a very real, non-zero chance of reaching a decision that, even if it didn't kill their patents, could cripple their campaign, say, something like "Patents are valid, but iOS apps don't infringe." (Note that jury verdicts in patent cases seldom seem to have much to do with the technical merits of the case.) So their potential outcomes were: A. Drop case: continue settling with small entities for Y revenue going forward with estimated revenue R. B. Favorable decision with X in damages: nice bonus to go along with contiuing revenue R. C. Unfavorable decision: 0 damages as well as very likely loss of continuing revenue R. Say the outcome has probabilities P(A), P(B) and P(C). They likely just assumed some values for these probabilities (actually, lots of empirical data out there these days, and P(B) is quite low)and X and R, and ran the numbers, and they got an expected result that wasn't too favorable. So they chose to minimize their risks, along with the associated rewards. > Future targets now know that they just have to keep the case going and eventually Lodsys could just drop it. Right, but the catch is that for most defendants it's too expensive to even just keep going on. And that's why they'll keep suing left and right and dismissing if anybody gets too close to trial. I don't know if there's any way to stop this campaign unless they slip up. (PS, I was mistaken about the Apple situation. Apple could not intervene because Lodsys settled the cases it was trying to intervene on -- essentially a tactical retreat like this one -- so it doesn't really speak to the exhaustion defense as such.)