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 16.

    There does seem to be a new business ethos that says we wont compete on whether our product is good enough, we will just destroy the competitor through the courts.

    Personally, I think that is the cowards approach to sales and it has completely put me off buying products from Apple at the moment.

    Not that I am a user of many of the product types, so not very difficult!

  • rate this

    Comment number 15.

    One thing: software can not be patented in the UK, but of course you can claim copyright. Any one developing software should meticulously journal the development. This can be use in court to prove you did it first, before the date of the supposed patent.

  • rate this

    Comment number 14.

    This is so silly.

    If Apple and Google had any sense, they would backing developers and forming a class action counter proceedings.

  • rate this

    Comment number 13.

    As a patent examiner (albeit not in the computer area), we have great problems with the quality of the applications we receive. At the EPO we do not generally grant software patents (although this may change), but many of the patents currently in the news are not "pure" software patents as such, but "business methods", which are also not generally patentable in Europe, as they are in the US.

  • rate this

    Comment number 12.

    We are a PC software developer and we've had one of these packages from the Lodsys Trolls. Alas, we don't even have the prospect of Apple or Google backing us up. We don't have a clue what to do about it. It is ridiculous, but truly scary.

  • rate this

    Comment number 11.

    This whole business is crazy and anti-competitive (like when Microsoft tried to patent the words 'is not'!!). These patents only serve to protect the big guys (who have large patent portfolios, so can negotiate with rivals) and hangs the little guys out to dry. This is a million miles away from a free market.

  • rate this

    Comment number 10.

    Private property rights: money, real estate and patents, are the other side of the promises we make to contribute our share. Without them, or an equivalent public obligation enforceable against us, we would all cheat on one another. If an inventor has made a genuine contribution, which the patent system is designed to test thoroughly, then it is unfair to take it without giving back.

  • rate this

    Comment number 9.

    The problem at the heart of this absurdity is the weakening of the concept of invention, which, in the context of patents, is usually defined as "non-obvious to those skilled in the art". If this were reasonably enforced, 99% of these patent applications would be thrown out before grant.

  • rate this

    Comment number 8.

    @4 The problem is that Londsys will take a company to court in the US. And when (if? you wish) the US Courts find in their favour, Apple/Google will be forced to deduct significant amounts from an income generated by any apps found to be in breach of the patent. I don't like it, but that's exactly what would happen unless and until someone challenges this successfully

  • rate this

    Comment number 7.

    Agree, "Community Design", all patents destroy innovations today; design and software are as mathematics, they couldn't be patented really. Imogene people are suing for similar car, building, bridge, plane etc. And a do not have any understanding for German court.

    Little correction, to me Google is not first to start patent war, but protect themselves from attackers.Fact or my opinion, whatever .

  • rate this

    Comment number 6.

    So what happens if they simply toss the stuff from Lodsys in the bin and deny ever seeing it. Or simply write back and tell them to impolitely take their software patent and stick where the sun doesn't shine?

    Would they end up in a UK court where a judge could simply strike out a claim that patent for using software to number things is absurd. Surely, a US court won't have any jurisdiction here.

  • rate this

    Comment number 5.

    I don't care, as I patented the increment operator and am guzzling champagne as a type.

  • rate this

    Comment number 4.

    The last I heard, computer programs were excluded from patents under EU and UK law (thank goodness), thought the UK patent office is accused of ignoring this law. I assume that USA law does not apply over here, and any patents that have been granted here are illegal.

  • rate this

    Comment number 3.

    "The patent wars roll on, with Apple winning another battle today in the German courts, " - As I understand it the case in Germany has nothing to do with Patents but is instead related to the European Union "Community Design" regulations which if anything are closer to the rules governing Trademarks than the rules governing Patents

  • rate this

    Comment number 2.

    I would suggest that they take Lodsys to uk court immediatly for summary judgement. You can't (easily) patent software in the UK. As you are a UK based company trading in the UK that should be offer you some protection.

    Even in the US you can only patent some which is not obvious to someone learned it the sector. Displaying numbers on a screen is obvious so it should be invalidated

  • rate this

    Comment number 1.

    It sounds to me as if this patent licensing lark is the tech equivalent of the debt vulture funds that "blackmail" sovereign states.


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