Patents: Can the giants protect the minnows?

Samsung"s lawyers showing a Apple iPad computer tablet and a Samsung Galaxy Tab at the Duesseldorf courthouse Tech firms are battering their opponents with patents around the world

The patent wars roll on, with Apple winning another battle today in the German courts, ensuring that Samsung's Galaxy Tab will stay off the shelves in that country for the time being.

But here in the UK I've just heard of another case involving a much smaller business which has been drawn into one of these disputes.  

David Hart, whose digital agency Codegent has a sideline in making smartphone applications, took delivery of a hefty package from the USA this morning.

It was from a firm called Lodsys, and in David's words contained "a hundred pages of legal gobbledegook." But it was accompanied by the threat of legal proceedings so for a small business it was worrying as well as confusing

Lodsys, you may remember, is a business based in Texas which has acquired a number of software patents and has set about threatening a series of developers of popular smartphone apps with legal action unless they agree to pay licensing fees.

And that was the gist of the letter received by David Hart this morning.

In it, Lodsys asserts that it owns a series of US patents that cover a wide range of interactions between app users and providers. These range from providing online help, to conducting online subscription renewals, to selling upgrades. In other words, just about any aspect of the way a smartphone app might operate.

With the letter came a series of illustrations of how one Codegent app - which teaches you Chinese - had made use of this patented technology.

One screen shot illustrates a patent on "units of commodity that can be used by respective users in different locations" which has apparently been employed in Codegent's Learn Chinese Android app.

Lodsys document

Unsurprisingly, Mr Hart was more baffled than ever: "Are they seriously saying that they've patented numbers?" he asked me.

Some might choose simply to ignore such a letter, but further down comes the information that Lodsys patents have already been licensed by major firms including Apple, Google, Nokia and Microsoft. The implication being that if giants recognise the validity of the Lodsys patent claims, then minnows better follow suit.

What the letter does not say is that both Apple and Google have told Lodsys to lay off iPhone and Android app developers.  Apple says it has licensed some of the patents and that means anyone developing apps for its platform does not need to pay again. And Google appears to be going further by challenging the validity of some Lodsys patents.

"We've asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued," says Kent Walker, Google's General Counsel. " Developers play a critical part in the Android ecosystem and Google will continue to support them."

Patent wars

Galaxy Tab and iPad, AFP/Getty

What this highlights, say critics of patents,  is the absurdity of a system which makes it far too easy to claim ownership of dubious software innovations and then use them as legal battering rams.  After all, the figures show that in 87% of cases where patent claims are re-examined they are either cancelled or substantially altered.

So where does that leave Codegent? Still in a state of uncertainty. "We haven't got deep pockets to pay lawyers," says David Hart. " Are we going to be shielded by Apple or Google? Should we just ignore the letter? What we want is clarification."

And of course the irony is that the big players like Apple and Google are themselves knee-deep in the business of using patents to try to batter their opponents in a fiercely competitive smartphone market.  

There are still plenty of defenders of a patent system as a vital protection for inventors which fosters innovation. But when small firms are put in fear of multi million dollar lawsuits by businesses whose only business is patent-licensing, that argument looks hard to sustain.

Lodsys did not respond to a request for comment, but previously Chief Executive Mark Small told me the firm had "made the decision not to do press interviews and apply our resources to licensing discussions".

Rory Cellan-Jones Article written by Rory Cellan-Jones Rory Cellan-Jones Technology correspondent

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  • rate this

    Comment number 56.

    If you want to do business in a country then you need to work within the law of that country, whether you agree with it or not. Figuring out how to do this requires work, just like writing software. The US legal system is not like the UK healthcare system, where the taxpayer pays for your care. The patent position of a business is just as much an asset of the business as its software.

  • rate this

    Comment number 55.


    "This innovation requires skilled work: it cannot arise spontaneously out of thin air when technology is conceived."

    Red Hat and Canonical have contributed a lot of innovation to Open Source software effectively waiving rights to both patents and copyright and they are still commercially viable. To claim that innovation cannot happen without software patents is simply not true.

  • rate this

    Comment number 54.

    Innovation using words is needed to create a patent position for technology that a business wishes to exploit commercially, whether for or against a patent right. It is like creating a new law that is to apply to a population of a country numbering tens of millions or even billions. This innovation requires skilled work: it cannot arise spontaneously out of thin air when technology is conceived.

  • rate this

    Comment number 53.

    On the point about a US company going after UK developers, they can do this because the distribution point (the app stores) are hosted in the US, not simply because Apple and Google are US companies.

    If the app stores were hosted outside the US AND you were able to ensure that you did not sell to US customers, I doubt Lodsys could pursue you based on US patents.

  • rate this

    Comment number 52.

    Lodsys don't claim to have patented "numbers" - but they do claim to have patented a two way communication system that allows the creators of a product to obtain feedback from their customers. The best way forward is to agree to the licensing terms and hope that one of the larger companies fights back with some prior art, which I feel must exist for such a generic invention.


Comments 5 of 56



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