from the won't-test-merit-of-claims-because-claims-have-no-merit dept
The ultimate patent troll, Lodsys, has filed to dismiss with prejudice its lawsuit against the only defendant (out of 55) not to settle, Kaspersky Labs. This follows 18 months of defendant after defendant (including big names like Symantec, Samsung and HP) settling rather than taking this to court.
I’m not sure how many of those defendants are kicking themselves now (perhaps not many — defending against patent trolls can be prohibitively expensive), but it’s apparent Lodsys has no desire to actually defend the merit of its claims in court. That’s a risky proposition even in the friendly confines of East Texas courtrooms. All it would take is one loss and a profitable settlement business is ruined.
And of all the shaky patent troll claims out there, Lodsys had some of the shakiest, according to the EFF.
We believe that Lodsys is unlikely to prevail on the merits of its claims. First, the principle of patent exhaustion should protect developers using Google and Apple’s APIs. Lodsys purchased its patents from Intellectual Ventures, who many believe is the biggest troll of all. (When “selling” its patents to supposedly “independent” companies like Lodsys, Intellectual Ventures has retained as much as 90 percent of ongoing profits.) Apple and Google both licensed the patents when they belonged to Intellectual Ventures. By suing individual app developers for using Apple and Google services, Lodsys is attempting to get to two bites of the apple, so to speak.
Second, Lodsys’ patents have nothing to do with the hardware or software of today’s smartphones and tablets. To the extent they are even comprehensible, the patents discuss a method for providing remote customer feedback for early 90s technology like fax machines. Using intentionally vague claim language like “trigger event” and “perception information,” Lodsys argues that the patents cover today’s technology. This is an abuse of the patent system.
Lodsys isn’t likely to stop with its trolling, though. In this case alone, it secured settlements from 54 defendants. Kaspersky is just the one that got away. It’s still pursuing thousands of iOS app developers and since the merits of these patents weren’t tested, it can deploy them against any companies and developers it didn’t think to include during its initial mass suings.
The upside is that Lodsys obviously knows its patents won’t hold up in court, even when argued in front of the “home crowd.” This should give more companies the confidence to stand up to its legal threats in the future (something Lodsys obviously fears, considering its efforts to block Apple from intervening in its suits against iOS developers). Defending against patent trolls is still expensive (something a “loser pays” system would help mitigate), but at least it’s not unwinnable, as Twitter, Newegg and Kaspersky Labs have proven.