WC has railed about Patent Trolls before, specifically Paul Allen’s silly claims. WC has even written a modest field guide to trolls to assist his readers. But the Paul Allen silly claims benchmark has been surpassed by the recent claims of Lodsys, LLC: that every app developer for the iPhone has violated Lodsys’s patents, and is therefore liable to Lodsys. Lodsys has even written demand letters to the more successful app developers extorting or demanding payment.
Lodsys’s demands were heavily criticized and inspired a firestorm of accusations and commentary in the blogosphere.
Now, it turns out, the app developers use of Lodsys’s alleged patents is completely lawful and Lodsys is either an extortionist patent troll or stunningly ignorant about the intellectual property rights it claims to hold.
Apple has weighed in, pointing out that it holds a license to the patents Lodsys asserts, that the patents are a part of the Application Programming Interface (“API”) provided by Apple to app developers, and that the app developers are protected by Apple’s license. And while WC is not an intellectual property lawyer, the law in this area is reasonably settled. Where a programmer can only use a piece of software through an interface the only license required is for the person providing the interface.
An API is like a vending machine in some ways: you as a developer have a limited menu of choices when you use it and the vending machine has a limited number of responses it can make. You have no control over what is in the vending machine. If there’s a patent on how the vending machine operates, you don’t need a license for the software patent to buy a candy bar from the vending machine.
Now it may be that Lodsys is unaware of Apple’s license of the patent, although that seems unlikely. Lodsys didn’t develop the underlying software, didn’t apply for the patents, and isn’t the first owner of the patents. Apple acquired its license from an earlier owner, Intellectual Ventures. That’s Nathan Myhrvold’s company. He’s a former high-powered Microsoft manager. Perhaps, just perhaps, Lodsys was unaware of the earlier license to Apple? Although its website seems to suggest otherwise.
More likely, it is simple extortion. By threatening small software developers, Lodsys jeopardizes the smart phone environment. Not just Apple’s iPhone, but all smart phones. By creating jeopardy, perhaps Lodsys hopes to shake some money out of the Apple and Android trees. Not a business strategy in which WC would choose to invest.
But WC has never been a fan of software patents, and was unenthusiastic about the U.S. Supreme Court cases which permit this folly. And while it’s hard to discern any positive benefits from the patentability of software, it has certainly spawned a nightmare twin, the patent troll.