> "and especially not from a non-attorney blog or a software development podcast"
I can't help but point this out as a direct dig at Marco Arment (and the Build & Analyse podcast) for suggesting that developers consider just settling with Lodsys.
And whilst this settle vs. fight debate is done to death, it's still worth saying that for a small indie developer, fighting could fuck you over more than settling. You might lose sleep over having settled—"[rolling] over without a fight"—but you'll probably lose a lot more sleep when you're in massive legal debt.
The only companies (that we know of) who are fighting back/filing declatory judgements are big ones ("ForSee Results, OpinionLab, ESET, and The New York Times have all filed such actions").
Note that I'm not saying you should roll over, nor am I saying fighting is a waste, but anyone—including Patrick Igoe, who is far more qualified in this area than me—needs to remember that it's easy to talk about the noble path, but it's harder to walk down it.
Your points are good ones but I don't think the author is saying that you are always better off fighting than not. His point is more nuanced.
My read is this:
1. Don't panic.
2. Get professional guidance.
3. Weigh the calculus well of how the troll will likely respond to resistance before deciding to fold: the troll is aiming at low-hanging fruit and may not choose to pursue someone who is prepared to raise obstacles (a matter that needs to be carefully weighed with professional help).
4. Part of this calculus (not emphasized in the article) is the position of the larger company whose platform is being targeted, whether Apple, Google, or whomever. I find it intriguing that the developers first targeted were very quick to publicize their plight and then went dark after being sued. This may signify that Apple has privately agreed to hold them harmless in exchange for their agreement to keep this confidential. And this would make sense. Apple would be foolish to make a blanket commitment to indemnify all developers when its agreement with them says that all the risk falls on the developer. At the same time, it can't afford to let a vulture come in and feed on the people who ultimately make the platform work. Hence, a strong letter to the world saying that it will vigorously defend its license rights (but with no public commitment to hold developers harmless), a motion to intervene in the lawsuits already filed by Lodsys against select developers, and dead silence (and, we assume, a forthcoming defense) from those same developers who normally would have taken the extortionist license terms and folded. This very likely means that the developers will stay the course with support from Apple, and that support almost has to include a private agreement to indemnify for this scenario to make sense. I am of course speculating here and might be dead wrong. The point for developers who have been threatened, however, is not to fold reflexively in such situations before exploring what Apple (or any other party defending its platform) is really doing behind the scenes. Even though this article did not get into this aspect, its main point really brings one to this sort of examination: if you are threatened, get good advice from knowledgeable people who know how to help steer you through this sort of maze. That is money well spent and it does not require you to spend a fortune fighting a troll one-on-one. The fact that a proper assessment might show the troll to have a flimsy case only reinforces the idea that there may be room to resist, if you do it right.
If I recall correctly, Marco prefaced any advice he gave with "speak to a real lawyer if you're actually in the situation, and don't act solely on this discussion," though maybe I'm superimposing that after the fact.
What else would you expect a lawyer to recommend than something that makes lawyers money?
Should app developers with, for an example, revenues of $5,000 to $10,000 a year pay a patent attorney their entire annual income from their app for just a cursory (!) look at the issue (far from the cost of searching for prior art etc., which is way higher)? How practical is that?
Why doesn't the article talk about the cost of such legal defense and the risk of an East Texas jury handing a multi-million dollar damage award to Lodsys?
Why doesn't he compare the low cost of Lodsys's license for the average app developer to the cost of legal advice (let alone legal defense or damages ordered by a court)?
How can app developers without the resources in place to defend themselves ever even get to the point where they can seriously challenge Lodsys's claim chart?
How can one be not profoundly concerned when Lodsys sends a letter, given that Lodsys has already sued 27 entities and is embroiled in seven lawsuits in three different states?
And why does a self-proclaimed open source site like Groklaw promote a patent attorney who vigorously argues in favor of software patents on Twitter?
By the way, the same Patrick Igoe doubted in an email to me a few months ago that Nokia was in a position to turn Apple into the net payer. I predicted it in March, I reaffirmed that prediction in May, and I was proven right yesterday.
The only real advice he can give is "talk to a lawyer", just the same as advice you'd give to someone complaining of health issues with "talk to a doctor", whether you're a doctor or not doesn't matter. It has nothing to do with him looking after his own.
My advice is not to simply pay the license fees, but if (1) Apple and Google don't help their app developers (Apple appears to be willing to help but the extent of it isn't clear yet; Google has neither said nor done anything so far) and (2) the licensee fees are in a given case much less than the cost of even a cursory legal analysis, then they're an economically more intelligent choice unless the license agreement contains anything that poses a risk comparable to the one of being sued without a license agreement.
According to this article, Lodsys is asking for "0.575% of US revenue over for the period of the notice letter to the expiration of the patent".
In other words, if you accepted the offer, you'd end up paying Lodsys $100 for roughly every $17,000 that you make. I'd guess you could count on one hand the number of devs that will ever be on the hook for more money than a good iOS consultant could make by booking a single day's worth of work, which is at the very least the amount of time that will be spent figuring out what the hell to do to fight against something like this if you end up taking it to court even before legal fees (unless you happen to be an expert on patent law to begin with).
"Lodsys needs developers to think it is cheaper to settle than it is to fight."
Well, it is probably cheaper if you include lost time, even if you win in court, and that's the whole problem - as a pure business decision, it's a no-brainer, especially when you consider the stress of being sued and having to think about this garbage when you'd rather be coding...
I only hope that the publicity of this crap means that enough people are pissed off to fight it at a loss instead of paying up, and they make Lodsys lose money on this tactic overall.
The likelihood of any one developer being contacted by "174 entitiesl ike Lodsys" is extremely low -- the same developer is more likely to be struck by lightning.
I have repeatedly pointed out, especially on my blog, the problem of encouraging other trolls to go after app developers. But in the example, $100 is a much better deal than paying thousands of dollars to lawyers. The thing that should happen is for Apple and Google to take care of their app developers.
Further, that $100 is assuming that your app actually makes $17k, which from my limited knowledge of the app market means you're actually doing fairly well compared to most developers.
Though maybe they're only targeting the apps that they know have made a decent amount, I'm not sure...
In this case, couldn't you just have them fight each other? I'm betting that their patent claims will be extremely generic, so it's possible that Entity#123's patent will be essentially the same as Entity#32's.
No, they want the low hanging fruit. All their generic patents will be used against you, not each other. They won't care that you're already paying other companies as long as they get paid again. And if you even think about claiming that it's already licensed, well see Apple's IAP for what happens.
Great advice yes but missed the most important thing you should do: call Apple's Legal Dept (or other platform owner should they start pursuing Android et. al.).
The best course of action now depends largely on the success of Apple's motion for an intervention. If that motion is granted, which is reasonably likely (though never certain), it will be time for Apple to clarify what support and coverage it gives to the sued app developers.
I know from at least one of them that he is NOT covered by Apple. If that continues to be the situation, the advice may unfortunately have to be at some point to sign Lodsys's license agreement if that results in dismissal from the lawsuit or helps avoid one.
For Android developers, the question is what Google will do. So far they say nothing and do nothing. If Apple's motion is granted, the question must be asked why Google doesn't intervene. One of the accused apps is an Android app ("Labyrinth for Android"). If Google doesn't protect Android app developers, they will also have to consider very seriously a license deal with Lodsys.
I have seen Lodsys's license agreement. I would recommend that many app developers share the cost of having it reviewed by a lawyer (rather than get into Patrick Igoe's claim chart stuff, which is neither convincing nor useful to those who can't afford a multi-million-dollar lawsuit over that question). If a lawyer agrees that the license agreement is reasonable, which in my personal opinion it is, then that's definitely better than going to court.
Patrick Igoe also came up with a "divided infringement" theory, which I rebutted on my blog. Apple apparently doesn't believe in his theory either, so why should you?
