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".

 
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  • rate this
    0

    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
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    Comment number 55.

    54.

    "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
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    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
    0

    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
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    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.

  • rate this
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    Comment number 51.

    #50 Maybe, just maybe, a small ammount of sarcasm has been used by people who see that companies like Lodsys are a parasitic waste of space who try and bully small inventive firms into paying them money for ideas that have just bought rather than come up with themselves. Next time i shall aim to use the [sarcasm] [/sarcasm] tags.

  • rate this
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    Comment number 50.

    #49 (and others)

    To the many posters coming up with obvious things to patent, it is simply to possible patent just anything. If it can be shown to have been done before, even without having been patented, you simply can not patent it just because you are the first to try to do so. The patents being enforced are bona fide inventions, because it has not been possible to show prior use...

  • rate this
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    Comment number 49.

    Has anyone patented tapping a key with a letter on it (on a keyboard, either physical or a representation on a screen) to cause said letter to appear in the typing area of the app?...if not I, will, should get me a few bob about as morally and legally justifiable as these guys...thats 1p per letter in each reply btw...I am counting

  • rate this
    0

    Comment number 48.

    #45

    That has been possibly the biggest flaw of the patent system over the years. getting protection is one thing, enforcing it against much larger rivals requires deep pockets, as, particularly in the US, it costs a fortune to start a patent infringement case, especially if the infringer counter-sues, which happens a lot, as you then have to pay to defend yourself as well....

  • rate this
    0

    Comment number 47.

    "However, if you ever fly across the US from coast to coast, remember that a patent right applies to everyone beneath you."

    Which would be great if software patents actually protected you as the innovator, but I've yet to see an example of this happening. To look at it another way, anyone beneath you with more money can buy a patent and use their patent lawyers against you.

  • rate this
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    Comment number 46.

    You are right that the cost of professional help presents a barrier to individuals and small businesses making full use of the patent system. However, if you ever fly across the US from coast to coast, remember that a patent right applies to everyone beneath you. Patent Offices provide a lot of free help, but small businesses can always let advisors invest their expertise rather than serve.

  • rate this
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    Comment number 45.

    Protecting your technology means having a large team of lawyers at your disposal and pre-emptively taking out patents in broad areas before someone else does. That is near-impossible for small businesses to do. Considering your argument in favour of patents (#20) is the enabling of individuals to create wealth independently without being the servant of a big corporation, what is the point of that?

  • rate this
    0

    Comment number 44.

    The US represents a huge portion of the global market for high-tech products. UK businesses wishing to participate in the global market need to learn how to work with the global patent system, which includes learning how to protect their technology in the US and look after themselves in the cut and thrust of US business culture.

  • rate this
    0

    Comment number 43.

    42.

    People are perfectly entitled to criticise the laws of other countries, especially when those laws are harming the business of your own companies doing business in your own country. It's called freedom of speech.

    Patenting your software app does not protect you from the kinds of frivolous claims Lodsys makes.

  • rate this
    0

    Comment number 42.

    The patent law in the US is a matter for the US government and US voters. The patents system here in Europe is different. It is not right to knock the patent system here in Europe, because of problems that a private company is having in the US with US law. Perhaps UK companies should think more seriously about patenting their software apps in the US.

  • rate this
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    Comment number 41.

    But companies like Lodsys are pushing it to ludicrous extremes. Defining selling UK products to UK customers as doing business in the US because that's where Apple and Google are based is going way too far.

    I'll take the argument of benefits of the US patent system seriously when someone shows me how US software patents reward innovation. At the moment, they seem to be used solely to stifle it.

  • rate this
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    Comment number 40.

    US patents have no legal effect in the UK. A UK company wishing to do business in the US needs to work with the US patent system. It is not the same as the UK system. The benefits of engaging with the US patent system are available to small UK businesses as well as to large US businesses, not just the drawbacks.

  • rate this
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    Comment number 39.

    @32

    There is no such thing as the EU patent office, and there is no such thing (yet) as an EU patent. What you do have is the European Patent Office (EPO), which is NOT part of the EU infrastructure, and is totally self-financing. The EPO actually has many more memebr countries than the EU, and will administer the EU (Community) Patent if this ever comes into force.

  • rate this
    +1

    Comment number 38.

    Lodsys are exceedingly well known patent trolls. They produce nothing but law suits, they merely attempt to extract payment from companies and individuals they allege have infringed the patents they have bought.

    IMHO, Patents should not be tradable. If you no longer have a use for your patent, it expires.

  • rate this
    0

    Comment number 37.

    36.

    Lodsys is issuing legal threats against UK developers selling their products to any customers, US or otherwise. They can do this because the Apple and Android app stores happen to be based in the US.

    If you want to argue that US Patent laws are none of our business, go ahead. But to claim it has no effect of business in the UK to UK customers is very naive.

 

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