As I was discussing my post about the Fundamental Flaws in the Lodsys Patent with a friend, I started thinking about what possible issues Apple may have that are different than the Application Developers. Here are some hypotheticals and questions that I do not know the answers to, but I would like to see someone press Apple for an answer to these.
1) Does Apple have any contractual obligations due to their license with Lodsys (or Intellectual Vetnrues "IV" or whomever) not to interfere in the assertion of previously owned IV patents? There are a lot of huge business issues here at stake if Apple were to help invalidate or defend against an IV owned patent. If Apple were to step in and defend against an IV patent, what would be the business consequences? As a contributing member/partner/licensee/whatever of IV, would that cause a conflict of interest with regards to IV?
2) Could Apple be sued for contributory patent infringement for being the "mastermind" behind any infringement? From my analysis earlier, Apple may be the only entity that practices and controls all of the elements of the Claims of the '078 Patent. It is possible their license to the Lodsys patents does not give them the right to cause contributory infringement. Thus, if Apple steps in to help the App Developers, might they be identifying themselves as a defendant and possibly admitting that they are an infringer and not the App Developers? (to be clear, I am not asserting that Apple infringes - I personally do not believe any applications likely infringe the '078 due to non-infringement and invalidity.) [UPDATE: Apple, in its letter to Lodsys, pretty much says that they would be the only direct infringer and, since they are licensed, their is no basis for claims against application developers.]
While from the viewpoint of the App Developers this is a straightforward issue of Apple needing to step up, this is likely a very difficult issue for Apple to deal with. These are some of the issues I thought of that could prevent Apple from taking a position to help the Application Developers. I do not have any internal information from Apple nor do I have any connection to Apple. I hope Apple does help out, but I am just putting these questions out there for a realistic business discussion, rather than just demanding that Apple step up.
If anyone has any links or information that could answer any of these questions, let me know.
- USPA
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