igoeIP has some great analysis of possible claim interpretations.
Although I have not posted my review yet, I agree with the questions and issues raised by Mr. Igoe. I have reviewed the application and claims. But, I still have yet to review the file history or any other litigation documents that might be relevant from Lodsys's other litigation. Those are the fun-fun readings for this weekend.
In my preliminary findings, I find it hard to see how Lodsys's patents cover in-app purchases. I just don't see how an in-app upgrade or an in-app purchase could be a "user perception" as used in the patents.
-USPA
Friday, May 20, 2011
Great software references for invalidity discussion
Here are a few non-patent references. I placed them in order of a quick scan I did for importance. Let me know your thoughts or if something stands out.
Practice management: new perspectives for the construction professional By Peter Barrett, Roderick Males - 1991
Coordinating user interfaces for consistency By Jakob Nielsen - 1989
Public opinion polls and survey research: a selective annotated bibliography ... By Graham R. Walden - 1990
InfoWorld Aug 20, 1990
InfoWorld May 11, 1987
Network World May 25, 1992
InfoWorld Mar 5, 1990
- USPA
Thursday, May 19, 2011
Re-exam option is getting some discussion
Great information from Macworld, go read the entire article:
"A further option available to developers would be to have Lodsys’s patents declared invalid, a process that requires filing a petition with the U.S. Patent and Trademark Office. ... developers could “mutually fund a reexamination request. This has the advantage of a much lower, predictable cost of between $20,000-30,000 for a good one. The requests can also be done is a pseudo-anonymous manner without necessarily identifying any single developer.”The attempts here to identify and distribute pertinent prior art can support this effort.
Larger companies are also targeted
If you are not already aware, Lodsys has also sued Brother, Canon, HP, Hulu, Lenovo, Lexmark, Motorola, Novell, Samsung, and Trend Micro over the '078 patent plus a few others.
In my wildest dreams, maybe we could get some feedback (such as any great pieces of prior art they have identified) from the lawyers representing these companies. I put out some feelers to see if I could get a response from the contacts I have and I will update if I receive any information. I assure you that most of these large companies are paying patent attorneys to do invalidity or non-infringement opinions right now.
While some of the companies will likely sell out to the highway robber troll and sign a license agreement, understanding the strengths and weaknesses of the patent(s) (i.e. identifying risk) can greatly affect the business analysis, leverage in negotiations, and the general decision making that will need to be made when considering how to deal with trolls like Lodsys. Unfortunately, small developers typically do not have the cash or resources to hire attorneys to do a proper investigation, response, and rebuttal to trolls like Lodsys. Thus, one of my goals here is to make an attempt to distribute information that may help assess the risk presented by these trolls.
In my wildest dreams, maybe we could get some feedback (such as any great pieces of prior art they have identified) from the lawyers representing these companies. I put out some feelers to see if I could get a response from the contacts I have and I will update if I receive any information. I assure you that most of these large companies are paying patent attorneys to do invalidity or non-infringement opinions right now.
While some of the companies will likely sell out to the highway robber troll and sign a license agreement, understanding the strengths and weaknesses of the patent(s) (i.e. identifying risk) can greatly affect the business analysis, leverage in negotiations, and the general decision making that will need to be made when considering how to deal with trolls like Lodsys. Unfortunately, small developers typically do not have the cash or resources to hire attorneys to do a proper investigation, response, and rebuttal to trolls like Lodsys. Thus, one of my goals here is to make an attempt to distribute information that may help assess the risk presented by these trolls.
Wednesday, May 18, 2011
First group of patents for discussion
I performed a prior art search based on the Lodsys '078 Patent. I have not yet taken the time to determine if they should be granted the priority dates of all the continuations and CIP they filed, dating all the way back to Aug 6, 1992. If someone wants to help with that analysis, please have at it.
Thus, I performed a search of patents that were filed prior to Aug. 6, 1992, as it seems to be the earliest claim to priority for the '078 patent. Here is my first set of results and short summary of their subject area.
4,658,093 - software authorized for limited use
4,740,890 - software predetermined trial period
5,019,963 - software remote version updating
5,023,907 - network license server
5,101,267 - audience polling system
5,103,476 - remote activation of software
5,138,712 - software license management
5,155,847 - remote update during use of software
5,204,897 - software license management
5,247,683 - software install over network
5,319,562 - software remote purchasing system and info collection
5,334,821 - portable POS terminal
5,577,244 - software update program
5,663,757 - interactive TV
5,956,505 - software with optional features
- USPA
Thus, I performed a search of patents that were filed prior to Aug. 6, 1992, as it seems to be the earliest claim to priority for the '078 patent. Here is my first set of results and short summary of their subject area.
4,658,093 - software authorized for limited use
4,740,890 - software predetermined trial period
5,019,963 - software remote version updating
5,023,907 - network license server
5,101,267 - audience polling system
5,103,476 - remote activation of software
5,138,712 - software license management
5,155,847 - remote update during use of software
5,204,897 - software license management
5,247,683 - software install over network
5,319,562 - software remote purchasing system and info collection
5,334,821 - portable POS terminal
5,577,244 - software update program
5,663,757 - interactive TV
5,956,505 - software with optional features
- USPA
First question - What does Lodsys claim their patent covers?
From the people I have talked to and what I have read, Lodsys seems to be asserting that US patent 7,222,078 covers in-app upgrades or purchases, such as a purchase of an upgrade from a trial or free version to a paid version.
The exact arguments of what Lodsys believes the patent covers probably won't be asserted by Lodsys until they are forced to file a Markman brief in litigation, which can be costly to get to this point for any individual company.
However, some tactics we can use now to attempt to squash this type of predatory licensing are:
1) find prior art that invalidates Lodsys's patent claims; and
2) find prior art that describes what the apps are actually doing.
The second strategy can put a lot of pressure on Lodsys to explain how their claim interpretaion covers something that was done prior to their invention. This can be very powerful in a re-exam or in arguments in litigation.
More info about the Lodsys actions are here:
igoeIP Apple Patent Blog
FOSS Patents
- USPA
The exact arguments of what Lodsys believes the patent covers probably won't be asserted by Lodsys until they are forced to file a Markman brief in litigation, which can be costly to get to this point for any individual company.
However, some tactics we can use now to attempt to squash this type of predatory licensing are:
1) find prior art that invalidates Lodsys's patent claims; and
2) find prior art that describes what the apps are actually doing.
The second strategy can put a lot of pressure on Lodsys to explain how their claim interpretaion covers something that was done prior to their invention. This can be very powerful in a re-exam or in arguments in litigation.
More info about the Lodsys actions are here:
igoeIP Apple Patent Blog
FOSS Patents
- USPA
In response to Lodsys
I am a registered US Patent Attorney and I believe what Lodsys and other patent trolls are doing undermines credibility to our whole patent system, especially software patents. I believe software patents should be allowed, but considering the prior art they should be very hard to obtain, as many features are not new inventions or are quite obvious.
The main goal of this blog is to have a place for contributors to post and discuss prior art that we may then use to re-exam the patents or have non-infringement and invalidity opinions drafted.
I prefer at this time to remain anonymous, as I am not doing this to gain notoriety or push my own practice. I am doing this because these trolls have pissed off my clients, my friends, and myself.
May the best patent attorney win.
- USPA
The main goal of this blog is to have a place for contributors to post and discuss prior art that we may then use to re-exam the patents or have non-infringement and invalidity opinions drafted.
I prefer at this time to remain anonymous, as I am not doing this to gain notoriety or push my own practice. I am doing this because these trolls have pissed off my clients, my friends, and myself.
May the best patent attorney win.
- USPA
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