Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.


Disclaimer - All information and postings in this blog are provided for educational purposes only. Nothing in this blog constitutes legal advice and you should not rely on any information herein as such. If you do not have a signed engagement agreement with me, then you are not represented by me and you should retain your own attorney for any legal issues you are having.

Monday, June 13, 2011

Issues Raised By Apple's License

Apple is asserting license (contract) rights and patent law doctrines of exhaustion and first sale while trying to intervene in the Lodsys v. small app devs lawsuit.  This is a strategic move on Apple's part for likely many reasons, most of which we can and have guessed at, but will likely never fully know because we would need knowledge of Apple's licenses and relationship with IV. 

Apple's assertion of license rights will revolve around the critical question of who could be an infringer of the Lodsys patents.  If Apple is the direct infringer or caused contributory infringement, then per Apple's assertions, they are licensed for that.  This is the crux of Apple's defense, that Apple and only Apple could be an infringer of the Lodsys patents and Apple has a license which permits that.

However, if Lodsys can somehow establish that the application developers could infringe the patents exclusive of Apple, then Apple's license likely does not apply.  (I personally do not consider this very likely to happen; see my discussion of Divided Infringement.)  I would guess that we will see the application developers respond and assert claims of non-infringement because in essence, that is Apple's argument also, though Apple is being careful not to speak for the application developers.

Thus, if Apple is allowed to intervene and assert it's license rights, the lawsuit will still be decided on the question of infringement (direct, induced, contributory) and non-infringement.  And the issues surrounding Divided Infringement will be heavily analyzed and argued if the lawsuit gets that far.  Thus, Apple's attempted intervention does not necessarily short circuit the lawsuit by itself.  I hoped it would induce Lodsys to back off, but recent news shows that they have an aggressive campaign against many companies.

I have no idea how Lodsys will respond to Apple's assertions because I have a hard time trying to formulate legal strategies that are completely divorced from facts of the case and the law.  Lodsys's claim charts are a joke and no decent patent attorney would ever sign their name to a lawsuit asserting them.  As I have stated a few times earlier, I think Lodsys's patents are likely not infringed by anyone and highly likely to be invalid.

Just my thoughts, retain your own attorney if you need actual legal advice.


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