According to Florian Mueller, the intellectual property activist behind Foss Patents, Apple and Google may be contractually forbidden from challenging Lodsys’ portfolio of patents.
Lodsys, the company currently suing several independent App Store developers over in-app purchases, as well as other companies allegedly violating its patents, is under attack from all fronts. As of last week, the targets of Lodsys’ legal actions began to fight back, beginning with ForeSee Results in Chicago. ESET, an antivirus software maker, The New York Times Company, and OpinionLab have now also filed pre-emptive suits against Lodsys.
Comparatively, Apple’s actions have been minor in comparison with the aggressive attacks from these companies. Apple has filed a motion to intervene in Lodsys’ lawsuit against App Store developers, but they have not gone so far as to try to have the patents invalidated. Google has remained silent and has yet to take action.
Mueller, who consulted with many lawyers on the subject, points out that both Apple and Google are probably barred from challenging the patents. From Foss Patents:
“It’s highly likely that Apple and Google are contractually precluded from challenging Lodsys’s patents because such license agreements often come with clauses under which a licensee will lose a license once he participates in an effort to invalidate any of the related patents (in addition to possibly having to pay contractual penalties).”
“So even if Apple and Google had wanted to attack Lodsys’s patents proactively, they would have lost their license — at least to any patent they attack; more likely to all four Lodsys patents; and possibly even to any or all of the more than 30,000 patents they licensed from Intellectual Ventures, a patent aggregator in which those companies (alongside many other industry players) invested.”
With a no-challenge provision potentially in place, Apple’s course of action will be limited to defending the rights of their contract, and the developers who Apple claims are part of that license.
Even if Apple is unable to pursue more aggressive options against Lodsys, there are plenty of other companies more than willing to fight the patent troll, and the outcome for all parties involved is still very much up in the air.