After my previous posts on the Lodsys debacle, Sam Abadir contacted me. Sam is the Chairman and CTO of appMobi, and is a patent expert. Below are his comments on one of the patents in question. Please note that I’m not an attorney or a patent expert, so I cannot vouch for the legal accuracy of Sam’s text, and nothing here should be taken as legal advice. But I think he raises some interesting points that I have not seen covered elsewhere.
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There are a lot of commentators that have provided analysis of the strategy Lodsys is taking in terms of going after small developers. Likewise, there’s been detailed analysis of what protection, if any, the Apple terms of service might provide. Those protections, if any, relate to issues around licensing. Currently Apple claims to have licensed the Lodsys technology. However, just because they licensed something from Lodsys doesn’t mean they, or their developers are actually using that technology. To that point, I haven’t seen any analysis of whether the underlying patent infringement claim has any real merit. That is, are the developers really using Lodsys’ invention? What is the invention anyway? While the license based defense has certain allure – it allows you to say “whether there is use of the patented technology makes no difference” – it doesn’t leave the satisfied feeling of a non-infringement argument where you can say “we’re not using your stinking technology.” So, as a retired IP attorney I figured it was worth reading the claims.
Claim 1 of patent 7,222,078 says the following (my emphasis included), my comments in :
1. A system comprising:
units of a commodity [e.g. an iPhone] that can be used by respective users [owners of iPhones] in different locations,
a user interface, which is part of each of the units of the commodity [the iOS UI???], configured to provide a medium for twoway local interaction between one of the users and the corresponding unit of the commodity [e.g. touch input on the iPhone], and further con-figured to elicit, from a user, information about the user’s perception of the commodity [e.g. - they would claim this is constituted by the choice to purchase in-app],
a memory within each of the units of the commodity capable of storing results of the two-way local interaction, the results including elicited information about user perception of the commodity,
a communication element [e.g. 3G connection or internet connection] associated with each of the units of the commodity capable of carrying results of the two-way local interaction from each of the units of the commodity to a central location, and
a component capable of managing the interactions of the users in different locations and collecting the results of the interactions at the central location [e.g. iTunes In-App purchasing system in the Apple cloud].
To violate the patent claim, you must violate ALL aspects of the claim. So, you can now make the analysis yourself – does an app like PCalc qualify as a “user interface, which is part of each of the units of the commodity”. Is it reasonable to claim that PCalc is a user interface which ships with every iPhone? That patent is really concerned with the seller of devices (like Apple selling the iPhone) a means of improving the product [in the patent they talk about Fax machines] – not with improving thirdy party applications that are later installed on the product.
There are some torturous arguments that you can make that apps are part of the iPhone – but its a real stretch given that patent requires “each of the units of the commodity” to have the user interface.
Claims 2 through 59 are all essentially dependent claims – meaning that to violate them you have to violate claim 1. Claim 60, the next independent claim, uses the same “user interface, which is part of each of the units” language. Claim 69, the next independent claim says the following:
69. A method for gathering information from units of a commodity in different locations, each unit of the commodity being coupled to a remote database on a network, the method comprising:
eliciting user perceptions of respective units [e.g. what do you think of this iPhone's 3G antenna] of the commodity through interactions at a user-interface of the respective unit;
generating perception information based on inputs of the users at the respective user-interfaces;
transmitting the perception information to the remote database;
receiving the transmitted perception information from
different units of the commodity; and collecting and storing the received information at the
Again, this claim really is about a distributed way to survey and use the survey information to improve the product. It’s hard to claim that in-app purchasing is a form of surveying. Furthermore, is it fair to say that a 3rd party app is part of the product (the iPhone)? What would a jury decide – you’re probably the best judge!
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Thank you Sam for this timely information!