Don't mess with Martha (Stewart): Patent troll's suit met with countersuit

Lodsys got a nasty surprise when it sued Martha Stewart Living, and other firms are opting to fight back too

The golden rule of patent trolling has long been this: Only go after the ones who don't or can't fight back.

Looks like Lodsys, one of the most notorious of patent trolls in IT, broke that rule when it went after no less a target than Martha Stewart Living Omnimedia.

The lifestyle company came out swinging with a countersuit when a patent claim was lodged against four of the company's iPad magazine apps. It's an expensive and difficult fight, but one that may spare not only Martha Stewart a lot of hassle, but a great many other victims of Lodsys as well.

It also looks like more patent troll victims are electing to come out swinging now that they know they're not alone in this fight.

Two years ago, Lodsys rocketed to the top of the patent-troll list when it unleashed a whole volley of lawsuits against individuals and small companies making smartphone apps. Its claim: It owned the technology for things like giving feedback on the use of the app or performing in-app upgrades. Many folks didn't have the cash to fight in court and either withdrew their apps or paid thousands of dollars in licensing fees.

Eventually, bigger firms ended up in the crosshairs of various patent trolls and started fighting back. When Newegg was sued for using a patent that allegedly covered online shopping cart technology, the online retailer fought back. (The troll, an outfit named Soverain Software, has since tried to overturn the defeat by insisting, of all things, that a typo in the court documents is in their favor.)

Lodsys's tactic is typical: Contact companies it thinks can be shaken down and offer them a licensing fee for their patents. The fee is substantial -- four figures is common -- but it's still far less than the cost of a full-blown legal battle. In Martha Stewart's case, Lodsys asked for some $5,000 for each of the four iPad apps, for a total of $20,000. Stewart's response? A countersuit contending that the patents in question weren't valid.

Patent trolls have often gone after deeper-pocketed clients for two reasons. First, because that's where the money is, and second, because of the odds that a larger company, unconcerned with the larger issues of intellectual property, will simply pay what to them amounts to a piddling amount of money to deal with the problem.

But thanks to the attention raised over the issue by the likes of the Electronic Frontier Foundation -- and the shouting of no small number of patent victims -- a sea change in attitude is quite plain. It's become clearer to everyone that ignoring the problem only emboldens patent trolls all the more and creates an atmosphere of capitulation.

Another boon is that the larger the pool of anti-troll fighters, the easier the whole operation becomes thanks to shared knowledge. Crowdsourced patent invalidation via StackExchange's AskPatents aids in quicker discovery of prior art -- common implementations of a patented item before its patent filing, which aids in invalidating the patent. (Oracle and Google previously teamed up to submit prior art against Lodsys in June 2012.)

Congress is currently mulling a new draft of a set of patent law reforms that put trolls all the more at a disadvantage, such as requiring the loser in such suits to pay court costs. Most appealing is more stringent transparency requirements, which would force trolls to disclose who the real party of interest is apart from a shell company that doesn't actually make a product. (Like most patent trolls, Lodsys's patent portfolio is acquired from third parties; the company itself doesn't make anything.)

But law is always slow to change. In the meantime, it's the Martha Stewarts and the Neweggs of the patent world that provide our best hopes for knocking the most egregious of the trolls right out of the box.

This story, "Don't mess with Martha (Stewart): Patent troll's suit met with countersuit," was originally published at Get the first word on what the important tech news really means with the InfoWorld Tech Watch blog. For the latest developments in business technology news, follow on Twitter.

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