A Suggestion in Lodsys vs. iOS Developers: Crowdsource the Defense
The quick rundown: A company called Lodsys is threatening a handful of small developers with legal action for their supposed infringement of a Lodsys-owned patent by the developers’ use of Apple’s in-app purchasing system. Some developers are trying to get Apple to step in and help by boycotting the in-app purchasing system. The full story is here on ars technica.
Others in the community have opined that the patent in question is overly broad and would likely be invalidated at trial, but getting to trial and conducting individual trials is well beyond the budgets of these small developers. And so what we have here is reasonably similar to a protection racket, only it’s entirely legal.
In this particular case, it would be entirely reasonable for Apple to step in and attempt to invalidate the patent on behalf of the developers because, after all, part of Apple’s revenue stream is at risk. If developers choose not to use the in-app purchasing system because of the threat of being sued, then Apple doesn’t gain the revenues from that purchasing stream.
But let’s assume for a moment that Apple can’t or won’t get involved for some reason. Perhaps Apple legal thinks it’s a slippery slope and they will only end up shelling out many more millions than they stand to make on this revenue stream. Or let’s assume that another patent troll and patent were involved and it didn’t directly affect Apple’s revenue stream somehow, though it does affect the individual developers.
What then?
There aren’t a whole lot of options to developers. Unfortunately, unlike a criminal trial where the government is required to provide a defense to the accused, civil defendants have no such protections afforded them—they’re left to defend themselves at their own costs. At best, they might find someone who is willing to take the case pro bono (literally, “for good,” i.e., not “for money”). The Electronic Frontier Foundation, for example, has a staff of lawyers who help out sometimes in cases like this. But while the EFF is certainly no friend of patent trolls, I’d guess it’s also not likely to defend the closed and proprietary Apple ecosystem, either. And it’s highly unlikely that any really good intellectual property (IP) firm would undertake the defense of one small developer. It’s still about the almighty buck, and there wouldn’t be enough publicity in that.
So here’s my suggestion: Crowdsource the defense and gang up on Lodsys.
Step 1: Start a Kickstarter project to fund the evaluation of the validity of Lodsys’s claims. This has to be done quickly as the developers have only a few weeks to respond to Lodsys. It would certainly help if an intellectual property (IP) attorney with a superior track record in defense of IP claims were willing to do the work pro bono, but there will still be costs involved.
I, for one, would throw in $100 on principle alone.
Step 2: If indeed the patent looks unlikely to hold water, then continue with the Kickstarter project to consolidate the certain-to-occur litigation and see it through trial.
It’s a risky proposition, sure, because nothing’s certain in the Eastern District Court of Texas—the developers could still lose the case. But what message would it send to the patent trolls?
For one, it says that the little developer is no longer helpless. Sue enough of them, and you’ve kicked the hornets’ nest, so to speak. Second, it says that the patent in question had damned-well better hold water, and hold it well. (As much as I hate software patents, it’s the law, and if your product really does infringe, then you’re on the hook to license it. Sorry.) Third, it sets a precedent, and it’s all about setting precedent in law.
So… what about it? Anybody able to start a Kickstarter for this one? Any IP attorneys out there willing to give it a go?
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