An IP holding company is apparently attempting to sue iOS app developers over their use of Apple-sanctioned in-app purchases, which use Apple-designed code on Apple devices. Come again?
Starting yesterday and continuing today, a small but growing list of iOS developers received notice via a FedEx-delivered package that they were under threat of legal action from a patent holder. The precise violation, of U.S. patent 7222078, is revealed in a communication from developer Rob Gloess to Mac Rumors, where he noted “we were told that the button that users click on to upgrade the app, or rather link to the full version on the app store was in breach.” Similar news came from the developer of PCalc with a tweet “just got hit by very worrying threat of patent infringement lawsuit for using in-app purchase in PCalc Lite.”
Who’s using strong-arm tactics on small coding firms? It seems to be a patent holding company called Lodsys LLC. Lodsys purchased the patent from computer scientist Dan Abelow in 2004, and has used this patent–and others–to launch legal attacks on other firms, including one targeting Brother, Canon, HP, and other big-name printer manufacturers.
There’s a storm blowing up very quickly about the matter online, largely because Lodsys is targeting developers rather than Apple. The developers are merely using the correct APIs that are issued by Apple in a system it designed to boost the way app updates work in the app store (and perhaps as an early maneuver to test out in-app subscriptions, such as those being used by iPad magazines). But if you look at the text of the patent itself, it actually covers this situation.
Most of the convoluted sub-clauses summarizing the patent’s content rest on the first clause, Claim 1. It’s a jumble of legalese-afflicted techno jargon, but the key sentence is: “A system comprising: units of a commodity that can be used by respective users in different locations, a user interface, which is part of each of the units of the commodity, configured to provide a medium for two-way local interaction.” The clause defines a remote user operating a device which in some ill-defined way uses a service provided by the “commodity” vendor.
Clause 15 then covers “the system of claim 1 in which the two-way interaction is mediated by a publicly or privately accessible on-line computerized information service.” Claim 30 then mentions the situation being a UI which “includes a console displaying text of graphics” and claim 31 then covers “the system of claim 30 wherein the console comprises a display of a computer, phone or handheld device.” That pretty much covers an iPhone, and targets the software companies in this current situation–they are the vendors, and Apple is merely the clearing house or store-front for their sales and service operation.
But here’s the thing, reading the “Background of the invention” section of the patent (which we’ve reproduced here as a wordcloud) suggests the patent is designed to cover one very specific situation. Specifically it’s all about eliciting from users their perceptions of the quality of a product or service using a variety of means (the patent also mentions TV screens, phone calls, and fax machines…how quaint!), and then improving the product as a result. Think about buying a washing machine, then having a dialog with its manufacturer by phone or computer to give pointers on how the next generation of machine could be better. The patent describes a “Customer-Based Product Design Module” that’s for enabling a better device evolution process:
“This broad range of needs clearly calls for faster, easier, more direct and broader means for learning customer requirements, measuring actual performance, communicating that information in automatically analyzed formats, and responding to customers and users dynamically based on their group or individual objectives and performance measurements.”
Doesn’t this sound a lot more like an in-app review process, when considered in the context of the App Store, rather than a “click here to get an upgrade” button? Or is the patent holder alleging that by requesting an upgrade a user is sending information to the vendor about how to build a better app–and thus is in violation of its IP? We’re not patent lawyers, but the wooly language here would seem difficult to stretch to cover the kind of trick Lodsys is trying to pull–and possibly even to cover an in-app review system, which by the nature of technological evolution both in terms of hardware and the Net is far removed from the kind of process Abelow was trying to imagine way back when he filed the patent.
This story will surely evolve, but an observer may note the hopeful spirit of the patent, which concludes that by incorporating such dynamic feedback between consumer and vendor, better systems could be used to “supply the types of human and product progress people need and want to purchase.” Patent inventor Abelow even notes “Information technology is so new [the core filing of the patent was back in 1992] that we’re still figuring out what it is and what it should do for us.” Lodsys seems to have decided it knows better than this–it’s about trying to make money for themselves from someone else’s prior IP. If this is the case, then maybe we can expect the suit to expand to every developer who uses Apple’s in-app system, and perhaps to the Android marketplace, where in-app purchasing is also possible.