Lodsys Attacks Android Developers over In-App Purchasing

Lodsys first came in the limelight a few weeks back when it started sending patent infringement notices to iPhone and iPad app developers who used in-app purchasing in their apps. Though it didn’t respond initially, Apple did publicly back its developers and stated that it had licensed that patent, which covered its developers as well.

Whether or not the license is valid only for Apple or for its developers as well is still unclear, but today, Lodsys has made a move against some Android developers as well, over the same in-app purchasing patent.

An Android developer posted this in the Android Discuss Google group:

If you’ve been following tech news lately, you may have read about a company named Lodsys that is threatening to sue iOS app developers (many of them small shops) for infringing on patents relating to in-app purchases. We recently implemented in-app purchases for our Android application and several weeks later we received a letter from Lodsys, claiming that we infringed on their patents.

Have any other Android developers out there been sent a letter? Has Google taken any action on this issue yet? Has Google given direction to any developers that have been hit by this? We are obviously a small shop and are not financially capable of defending ourselves over a litigation.

We would appreciate any helpful responses (especially from the Android team).

It’s very likely that Google will respond to this claim by Lodsys and fight it on behalf of its developers, much like Apple. Stay tuned for more updates.

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  • AAH

    As many readers of this blog are likely aware, Lodsys has asserted that many application developers are infringing claims of its U.S. Patent Nos. 7,222,078 and/or 7,620,565 (I’ll refer to them as the Lodsys Patent Claims).

    While these patents seemingly expire August 6, 2012 (as a result of the priority claims and the terminal disclaimers that were filed in each patent), Google nonetheless continues its quest to invalidate the Lodsys Patent Claims. It is worth noting, that once a patent expires or is invalidated, it cannot then be infringed by anyone.

    In summary, Google initiated Reexamination proceedings with respect to U.S. Patent No. 7,620,565 (Reexamination Control No. 95/000,638) and U.S. Patent No. 7,222,078 (Reexamination Control No. 95/000,639) seeking to invalidate the Lodsys Patent Claims. The patent office adopted a majority of Google’s proposed rejections. In response, Lodsys submitted Declarations seeking to overcome the patent office rejections (and particularly U.S. Pat. 5,965,505).

    The Declarations submitted by Lodsys identified a number of reports authored by Daniel Abelow and Dr. Barbara Flagg. Interestingly, these reports were dated Spring 1991 — which is more than one year prior to the earliest filing dates of the Lodsys patents.

    Google, seizing upon this, now proposes a number of additional rejections and enforcement issues based on these reports. For example, Google now proposes that the Lodsys Patent Claims are invalid under 35 USC 102(b), because:

    1. one is not entitled to a patent if the invention was described in a printed publication more than one year prior to the date of the application for patent, and the reports predate Lodsys’s relevant patent application by more than a year;
    2. one is not entitled to a patent if the invention was in public use, more than one year prior to the date of the application for patent, and the Declaration/reports indicate such a system was pilot tested and open to a number of students; and
    3. one shall be entitled to a patent unless the invention was on sale in this country, more than one year prior to the date of the application for patent, and the Declaration/reports indicate Harvard accepted a proposal (arguably prior to Spring 1991) that was successfully completed.

    If Google is correct on any of these points, the Lodsys Patent Claims appear to be unpatentable or invalid.

    Google also notes that Lodsys never submitted the reports to the patent office despite its obligation to disclose information that may be material to patentability. A violation of this duty with respect to any claim could render all claims unpatentable or invalid.

    In sum, the Lodsys Patent Claims seem to expire this summer and Lodsys’s efforts to keep the Lodsys Patent Claims from being invalidated have seemingly opened up a lodestone of new arguments that may be used to mitigate their impact.

    Stay tuned.