My Read: Full text: Apple Legal's letter to Lodsys | Software | Macworld


Here’s how I read Apple’s response to the Lodsys letters and, not being a lawyer, it might be wrong:

  1. Lodsys says that Apple is licensed to use the Lodsys patents in Apple-branded products. (And conversely, from Lodsys’s previous assertions, the developers are not licensed to use the Lodsys technologies in the developer-branded products.)
  2. Apple says that the app developers’ products use Apple-branded products. I.e., if the developer uses an API, it’s an Apple API. If the developer uses an iOS device, it’s an Apple iOS device. And if the developer relies on the iTunes store, it’s the Apple iTunes store, etc. Apple even cites the letters that Lodsys uses to show infringement as showing Apple-branded products throughout.
  3. Since the developers are using Apple-branded products to implement the technologies Lodsys claims to own, the Lodsys patent(s) are not being infringed upon, these Apple-branded and legally-licensed products having been legally sold to the App Makers (as Apple calls them). A Supreme Court reference is used to make it clear that that’s how Apple’s reading the claims, too.

Here’s a concrete example to help illustrate my reading: Let’s say you build FasterBikes bicycles and buy a Shimano drivetrain for your product. The Shimano drivetrain uses a gear technology licensed from another firm, Lodsys. By now, you would have received a letter from Lodsys telling you that you have to license their technology for use under the FasterBikes name. Shimano (Apple), however, having licensed the gear technology for use under the Shimano name, is essentially telling Lodsys in this letter that the Shimano-branded parts are still Shimano-branded parts and that they have no business trying to get FasterBikes to license the technology. If, on the other hand, you made your own drivetrain that used the Lodsys gear technology and put that on your bike, then Lodsys would have a leg to stand on and you’d be on your own.

And that brings me to this interesting thought: What about apps which are sold through Cydia, the jailbroken iOS device app store? I think Lodsys might have a leg to stand on there since those apps probably don’t use the Apple-branded APIs for certain activities and hence are not licensed to use the Lodsys technologies. And how about the apps sold through the Android Market? Though Google is a licensee of these patents, I don’t think the Android Market has in place any controls (read “curation like Apple does with the App Store”) which would prevent use of the Lodsys technologies through a non-Google-branded API.

In other words, maybe there is a good reason for Apple to collect its 30% for all purchases, and maybe there is a good reason for Apple to require the use of its APIs wherever possible: legal protection against the so-called “patent trolls.” For these developers, it seems to be worth the price so far.

Anywho… one commenter to Macworld put it pretty succinctly: “Wow that is the longest and most articulate bitch slap I have ever read.” It is not, however, a slam-dunk. I’m pretty certain that Lodsys won’t drop the notices and will try articulating their argument a different way—if they bother doing anything at all. After all, they have nothing to lose and everything to gain, and the only people who will lose in this are the individual developers. And in that case, for them the only hope is that Apple will file suit against Lodsys, since I don’t see anything criminal (i.e., the government won’t step in) in what Lodsys is doing.

At any rate, I think this one is going to get more interesting, so stay tuned!

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